author: VERGERONT, J.

text:
    Gordon Lynch, Plaintiff-Appellant-Cross-Respondent, v. Crossroads Counseling Center, Inc., Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 03-1344.

      Submitted on briefs February 11, 2004.

    Decided May 27, 2004.

    2004 WI App 114
    (Also reported in 684 N.W.2d 141.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Aaron N. Halstead, Shneidman, Hawks & Ehlke, S.C., Madison.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Kenneth W. Forbeck, Forbeck, Elliott & Monahan, S.C., Beloit.
    A nonparty brief was filed by Barbara Zack Quindel and B. Michele Sumara, Perry, Shapiro, Quindel, Saks, Charlton, Sumara & Lerner, S.C., Milwaukee, for Wisconsin Employment Lawyers Association.
    Before Vergeront, Lundsten and Higginbotham, JJ.
   VERGERONT, J.

¶ 1. In this wage claim action, Gordon Lynch, formerly employed by Crossroads Counseling Center, Inc., appeals the judgment awarding him unpaid wages and attorney fees insofar as the circuit court did not double a greater portion of the unpaid wages as a penalty and did not award all the attorney fees he requested. Crossroads cross-appeals, contending that the circuit court erred in granting summary judgment in favor of Lynch for unpaid wages and in denying its motion for reconsideration.

¶ 2. Taking the cross-appeal first, we conclude the circuit court correctly granted summary judgment in favor of Lynch for $9447.82 in unpaid wages and did not erroneously exercise its discretion in denying Crossroads' motion for reconsideration. On Lynch's appeal, we affirm the circuit court's decision not to impose a greater penalty under Wis. Stat. § 109.11(2) (2001-02). However, with respect to the court's award of attorney fees under Wis. Stat. § 109.03(6), we conclude the circuit court erroneously exercised its discretion by not first determining a reasonable number of hours to expend on this case, which, when multiplied by the hourly fee the court found reasonable, should have been the starting point for the consideration of other factors. The court also erroneously exercised its discretion by calculating the fee as it apparently did based on Lynch's fee agreement, and by considering the amount recovered, in itself, to be a factor favoring reduction below a reasonable hourly rate for a reasonable number of hours. Accordingly, we affirm in part and reverse in part, remanding for a determination of reasonable attorney fees consistent with this opinion.

BACKGROUND

¶ 3. Lynch began employment with Crossroads in June 1995 as a psychotherapist. He and Crossroads entered into an employment agreement on that date, which provided for compensation as follows: $25 per billable therapy hour in the first year of employment; $30 per billable therapy hour in the second year; and $30 per billable therapy hour "or fifty-five percent of 'collections' (as defined in Addendum A), whichever is greater," in the third year and thereafter. Addendum A was attached and showed how wages were calculated under four variations in the number of hours worked: a sum consisting of the total hourly pay, vacation pay, holiday pay, FICA, unemployment compensation, worker's compensation, and liability insurance was subtracted from 55% of collections, and the difference was the "overage" that the employee was due. Lynch and Crossroads signed a second agreement on January 8, 1996, that contained the same provision for compensation after three years of employment and also had the same Addendum A attached.

¶ 4. When Lynch began his employment with Crossroads, he performed alcohol and drug (AODA) counseling services. On September 24, 1997, Susan Schroeder, Crossroads' administrator, wrote Lynch to advise him that his last day of work in the AODA area would be October 1, 1997, and that effective October 2 he would be employed as a full-time mental health therapist pursuant to the agreement to be signed by the parties. On October 1, 1997, Crossroads and Lynch signed a third contract of employment. This agreement provided that in the third year of employment and thereafter, Crossroads was to pay Lynch $30 per billable therapy hour "or fifty-five [percent] (55%) of 'collections', whichever is greater." There was no reference to Addendum A and Addendum A was not attached to the agreement. This agreement also provided, as had the first two, that at full-time status after one year of employment, Crossroads would pay Lynch twenty hours annually for vacation at his then current hourly rate and for seven holidays, four hours for each, at his then current rate, commencing from the first day of employment.

¶ 5. In April 1999, Lynch and five other Crossroads employees filed a complaint with the Wisconsin Equal Rights Division of the Department of Workforce Development (DWD), alleging that Crossroads had unlawfully deducted the following items from their wages: vacation pay, holiday pay, unemployment insurance taxes, worker's compensation premiums, liability insurance, and the employer's portion of FICA taxes. The director of the Labor Standards Bureau determined that, according to Addendum A, the employer could compute 55% of collections by first deducting those items from the collections. However, after Lynch brought to the attention of the bureau that his 1997 contract did not contain a reference to Addendum A, the bureau director issued a decision in May 2000 concluding that Lynch's 1997 contract did not authorize Crossroads to make any deductions in computing 55% of collections. The decision ordered Crossroads to submit an accounting from June 27,1997, through the end of Lynch's employment of the amounts paid to Lynch and the amounts he earned based on a full 55% of collections and to submit any underpaid amount with the accounting. Crossroads submitted an accounting showing the amounts Lynch would be paid if "he was to receive 55% of collections from services rendered. . . minus monies already paid to him under [Addendum A]." This accounting added sums for FICA, unemployment insurance taxes, worker's compensation, and liability insurance under columns labeled 1997, 1998, and 1999 for a total of $4218.05. However, Crossroads did not submit that payment.

¶ 6. Lynch also filed a complaint with the DWD Unemployment Insurance Division asserting that Crossroads had impermissibly deducted unemployment insurance from his wages during 1997 and 1998. On December 15, 2000, the division issued an initial determination ordering Crossroads to pay Lynch the unemployment insurance taxes it had deducted from his wages during 1997 and 1998, concluding that the deductions were in violation of Wis. Stat. § 108.11(1). On January 17, 2001, the unemployment insurance division notified Lynch that Crossroads did not appeal that determination and it had become final, but that the division did not have the authority to enforce the initial determination.

¶ 7. Lynch filed a third complaint with the DWD Worker's Compensation Division. On February 2001, an administrative law judge determined that Crossroads had violated Wis. Stat. § 102.16(3) because it indirectly-deducted the cost of worker's compensation benefits from Lynch's wages. It ordered Crossroads to pay Lynch the stipulated amount of worker's compensation premiums, less 20% for attorney fees.

¶ 8. Lynch filed this action in March 2001 after not having received any of the payments ordered in the above decisions. The complaint alleged that Crossroads had failed to make the payments ordered and that Crossroads had violated his 1997 contract by deducting from his wages its share of federally required FICA withholdings, its contributions to the Wisconsin Unemployment Reserve Fund, monies used to discharge its liabilities under the worker's compensation statute, corporate liability insurance purchased by Crossroads, and vacation and holiday pay owed separately to Lynch by Crossroads under the agreement. Lynch sought the unpaid wages due him, an equal amount as a penalty under Wis. Stat. § 109.11(2)(b), and attorney fees and costs under Wis. Stat. § 109.03(6). Crossroads' answer admitted that it made the deductions alleged but asserted that the deductions were permitted under Addendum A to the contract.

¶ 9. Lynch moved for summary judgment. In addition to seeking the sums alleged in the complaint, he asserted that he was owed wages for mental health therapy services rendered to patients insured by Com-pcare Health Services Insurance Corporation for which Crossroads paid him less than the $30 per hour required by the contract. According to Lynch's computations, the total owed before the penalty was $9447.82. In support of his motion, he submitted his affidavit with various attachments as well as his deposition, Schroeder's deposition, and the deposition of James Tullis, Crossroads' controller.

¶ 10. Crossroads opposed the motion for summary judgment, arguing that it was entitled to a trial on three primary issues. First, Crossroads asserted that, although Addendum A was not mentioned in the 1997 contract or attached to it, this was the result of an inadvertent computer crash or mistyping, and thus there was a factual dispute over the proper construction of the contract on this point. Second, Crossroads agreed that Lynch had not been compensated at $30 an hour for Compcare patients, but asserted that the contract did not include these patients within the $30 per hour rate, and the proper construction on this point was also a factual dispute. Third, there was a factual dispute on whether holiday time and vacation time were deducted. On this last point, Crossroads acknowledged that it had admitted in its answer that these were deducted, but it submitted Tullis's affidavit. Tullis averred that holidays and vacation time were not deducted when computing Lynch's right to "overage" under Addendum A (that is, the difference between what they had received and what they were due under Addendum A), but simply "were made a part of his total compensation package and appeared... on his W-2 form." Crossroads also contended that Lynch was not entitled to a penalty in an amount equal to the wage deductions under Wis. Stat. § 109.11(2)(b) because it had acted in good faith in calculating and paying Lynch's wages.

¶ 11. The circuit court concluded that there was no disputed issue of fact with respect to the proper construction of the 1997 contract. It concluded that the language of the contract was plain and did not allow for any deductions from collections when computing the 55%, and Crossroads' submissions did not create a genuine issue on whether the parties had intended that Addendum A be a part of the contract. It was undisputed, the court concluded, that Crossroads had deducted unemployment compensation, worker's compensation, FICA, and liability insurance from Lynch's wages in the total amount of $4218.05. The court also concluded that the plain language of the contract did not provide an hourly rate other than $30 an hour for Compcare patients, as it did for Medical Assistance patients, and therefore it was undisputed that Crossroads owed Lynch $2109.77 for these patients.

¶ 12. With respect to holiday and vacation pay, the court concluded the contract plainly obligated Crossroads to pay Lynch the amounts specified. The court also concluded there was no issue of fact that Lynch had not been paid those amounts. Because Tullis's affidavit on this point was in direct conflict with his own deposition testimony as well as the answer to the complaint, the court stated that it was required to disregard it under Yahnke v. Carson, 2000 WI 74, ¶¶ 20-21, 236 Wis. 2d 257, 613 N.W.2d 102 (an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained).

¶ 13. The circuit court agreed with Lynch that a penalty equal to the amount due was appropriate for unemployment compensation and worker's compensation: the administrative decisions had determined those amounts were owed and Crossroads' resistance to those orders was not in good faith. The court therefore awarded $514.64 as a penalty. However, the court decided not to impose a penalty for any other amounts owed Lynch because, it concluded, Crossroads had a reasonable basis for its positions on the proper construction of the contract and its liability for the wage claim.

¶ 14. Crossroads moved for reconsideration. It submitted the affidavit of its counsel, which contained legal conclusions as well as factual statements and referred to a number of attachments, some of them not previously submitted. The court denied the motion for these reasons: (1) the affidavit did not meet the requirements of Wis. Stat. § 802.08(3) because it contained conclusions of law, and because it made factual assertions and attached documents with no showing of counsel's personal knowledge; (2) some of the documents were efforts to dispute admissions Crossroads made in its answer, and the court had already ruled Crossroads could not contradict those admissions; and (3) the new documents were improper attempts to supplement the record after the deadline for summary judgment submissions.

¶ 15. Lynch moved for attorney fees and costs under Wis. Stat. § 109.03(6), requesting $14,325 in fees and $353.31 in costs. In Lynch's counsel's affidavit accompanying the motion, he averred he had spent 61.4 hours and his law clerk had spent 8.5 hours on this action, and he provided an itemization for the work performed on each day since November 30, 2000. He attached a copy of the fee agreement Lynch had signed and averred that Lynch had not paid him for any work itemized. The affidavit also provided details on counsel's professional experience and averred that $225 per hour was the rate he charged clients who retained him on an hourly basis in employment matters, and in his professional opinion this was a reasonable hourly rate. Lynch also submitted affidavits of two attorneys who averred that they had experience in employment law, that in their opinion the work Lynch's counsel performed was necessary, and that the hourly fee of $225 was reasonable for attorneys in this area performing this .kind of work.

¶ 16. The court determined that it was appropriate to award fees under Wis. Stat. § 109.03(6). Based on the submissions, it found that $225 was a reasonable hourly fee. The court then listed the factors in SCR 20:1.5(l)(a). This rule is directed to attorneys' professional obligation to charge reasonable fees. After applying these factors, the court awarded $6641.58 in attorney fees and costs.

CROSS-APPEAL

¶ 17. We first address Crossroads' cross-appeal. Crossroads contends the court erred in granting summary judgment because there were disputed issues of fact regarding the proper construction of the 1997 contract and regarding how much Crossroads owed Lynch even if the circuit court's construction were correct.

¶ 18. We review the grant of summary judgment de novo, applying the same standard as the circuit court. Firstar Trust Co. v. First Nat'l Bank of Kenosha, 197 Wis. 2d 484, 492, 541 N.W.2d 467 (1995). A party is entitled to summary judgment if there is no genuine issue as to any material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 19. When a court is asked to construe a contract, the goal is to arrive at the parties' intent. Kernz v. J.L. French Corp., 2003 WI App 140, ¶ 9, 266 Wis. 2d 124, 667 N.W.2d 751. If the language of the contract is plain, the court does not look outside the contract to determine the parties' intent. Id. The question of whether contract terms are plain or ambiguous is a question of law, which this court reviews de novo. Id., ¶ 8.

¶ 20. Crossroads first argues there was undisputed evidence that Lynch accepted wages computed according to Addendum A and compensation for Com-pcare at a rate lower than $30 per hour after he signed the 1997 contract until he left Crossroads' employ. According to Crossroads, it is therefore entitled to a trial on whether Lynch agreed to these terms. We agree with the circuit court that the submissions do not create a genuine issue of material fact on this point. Tullis acknowledged in his affidavit that, while he believed he spoke to Lynch concerning how Lynch's wages were calculated after he signed the 1997 contract, "he [Tullis] [did] not have an immediate recall of whether or not [he] did in fact directly speak with [Lynch]" about those calculations. Tullis also averred he did not know if Lynch actually received a copy of the documents showing how compensation for Compcare patients was calculated. Crossroads provides no legal authority for its implicit premise that Lynch's acceptance of wages, in itself, creates a factual issue on the parties' intent when the language of the contract is not ambiguous.

¶ 21. Crossroads next contends that, even if the court correctly construed the 1997 contract, there are still factual disputes on how much Crossroads owes Lynch. According to Crossroads, the circuit court erred in concluding that Crossroads had made deductions from wages owed Lynch and in using those figures as a basis for determining what it owed Lynch, because Crossroads never actually made those deductions; it had, rather, simply taken those items into account in computing what Lynch was owed in Addendum A. Crossroads asserts that the proper way to determine what Lynch is owed is to forget Addendum A, calculate what Lynch should have been paid under the contract as construed by the court, and subtract from that what Lynch has already received. When this is done, Crossroads asserts, Lynch is owed only $631.32.

¶ 22. There are a number of flaws in Crossroads' position. First, from the standpoint of computing what is owed Lynch under the contract as construed by the circuit court and this court, it does not matter whether items were added to the pay he received based on his hourly rate before subtracting that sum from 55% of collections to determine the "overage" to pay Lynch under Addendum A, or whether those same items were subtracted from 55% of collections to determine Lynch's pay. In both cases the amount Lynch receives is reduced by those items. We therefore do not understand the practical significance in the distinction Crossroads is making, at least for the purposes , of calculating what Lynch is owed in this action.

¶ 23. Second, even if there is a practical significance to the distinction Crossroads is attempting to draw, Crossroads did not make this distinction until the motion for reconsideration. Crossroads admitted in its answer that it did make the deductions alleged in the complaint and asserted that "the deductions set forth [in the complaint] were permitted ... under the Contract of Employment between the parties in effect during the appropriate time in question." The circuit court declined to consider any submissions on the motion for reconsideration that contradicted Crossroads' answer. Whether to hold a party to a "judicial admission" is a matter for the circuit court's discretion. Fletcher v. Eagle River Mem'l Hosp., 156 Wis. 2d 165, 177, 456 N.W.2d 788 (1990). More importantly, a motion for reconsideration is not a vehicle for making new arguments or submitting new evidentiary materials after the court has decided a motion for summary judgment. See O'Neill v. Buchanan, 186 Wis. 2d 229, 234-35, 519 N.W.2d 750 (Ct. App. 1994). Crossroads does not develop an argument with legal authority and reasoning to show that the circuit court erroneously exercised its discretion in declining to consider, on the motion for reconsideration, submissions that contradicted its answer. We see no grounds for reversing the circuit court on this ruling.

¶ 24. Similarly, it was not until the motion for reconsideration that Crossroads disputed Lynch's method of calculating what it owed him if the court accepted his construction of the 1997 contract. The calculation was attached to counsel's affidavit. Crossroads asserts that the calculation was not new evidence, but was derived from exhibits already in the record. Crossroads does not provide enough detail so that we can tell whether this is true. However, even if we assume it is, that still means that Crossroads waited until after the court ruled against it on the contract construction to present a legal argument disputing the method Lynch used to calculate what he was owed under his construction of the contract. Crossroads appears to believe that it was entitled to further evi-dentiary proceedings after the court construed the contract, but nothing in the record supports this expectation.

¶ 25. Lynch's submissions in support of his motion for summary judgment made very clear the eviden-tiary basis he was relying on for each of the amounts he was seeking. For the deductions of FICA, unemployment compensation, worker's compensation, and liability insurance it was the very document that Crossroads had submitted to the Labor Standards Bureau as an accounting, and Tullis also submitted this document with his affidavit. The amounts listed for each of these items in the accounting correspond to those in other exhibits Tullis attached to his affidavit showing how Lynch's wages were computed.

¶ 26. For the vacation and holiday pay, the contract specified the number of hours per year and the hourly rate, and Lynch's affidavit averred that there were eleven holidays qualifying for holiday pay from October 1, 1997, to the end of his employment with Crossroads. Crossroads did not submit any evidentiary materials disputing that total of $3120 that Lynch claimed he was due for vacation and holidays, but instead argued that it had not deducted these amounts in computing the overage. As we have explained, the court did not accept Tullis's affidavit on this point because it contradicted the answer and his deposition testimony. Crossroads does not argue that the court erred in doing so. Accordingly, there was no evidence to dispute the showing Lynch made that Crossroads had deducted $3120 in vacation and holiday pay in calculating the overage it paid him.

¶ 27. Finally, for the Compcare patients, Lynch relied on exhibits produced at Tullis's deposition to show the number of therapy hours Lynch provided Compcare patients and the amounts he was paid, and he calculated that, if he had been paid at $30 per hour for those hours, he would have received $2109.77. Crossroads did not dispute these numbers or the methodology, hut argued simply that the contract did not require it to pay for Compcare patients at the $30 hourly rate.

¶ 28. We conclude that the circuit court correctly decided, based on the arguments made and the record before it when it ruled on the summary judgment motion, that there were no genuine issues of material fact and Lynch was entitled to $9447.82 under the 1997 contract.

APPEAL

1. Application of Penalty Statute, Wis. Stat. § 109.11(2)(b)

¶ 29. Lynch contends the court erred in not doubling $3390.16, the portion of the unpaid wages based on deductions for FICA, in addition to the $514.64 it did double.

¶ 30. Wisconsin Stat. § 109.11(2)(b) provides:

(b) In a wage claim action that is commenced after the department has completed its investigation under s. 109.09 (1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in addition to the amount of wages due and unpaid to an employee and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid.

¶ 31. As Lynch recognizes, this statute does not require a court to impose a penalty but authorizes a court to do so in the exercise of its discretion. Hubbard v. Messer, 2003 WI App 15, ¶ 14, 259 Wis. 2d 654, 656 N.W.2d 475. When we review the discretionary decision of a circuit court, we affirm if the court applied the correct legal standard to the facts of record and reasoned its way to a rational conclusion. Beaudette v. Eau Claire County Sheriff's Dep't, 2003 WI App 153, ¶ 31, 265 Wis. 2d 744, 668 N.W.2d 133. Lynch argues that the circuit court's explanation for denying a penalty on all but the $514.64 — the amount of the deductions for unemployment compensation and worker's compensation — is not reasonable when applied to the FICA taxes. The court's rationale was that Crossroads had a reasonable basis for its construction of the contract. However, Lynch argues, federal law does not allow Crossroads to deduct its share of FICA taxes from an employee's wages regardless of what a contract says, and in any event, this contract does not permit it.

¶ 32. It is not obvious to us from Lynch's brief discussion of federal law on FICA that the construction of the 1997 contract in this case is irrelevant to the propriety of Crossroads deducting the employer's share of the FICA taxes in calculating what it owed Lynch under that contract. Lynch's argument on this point consists of a reference to 26 U.S.C. § 3111 (2002) (which imposes the tax on employers) and the holding in Bubble Room, Inc. v. United States, 159 F.3d 553, 565 (Fed. Cir. 1998), that the statute "impostes] a separate and distinct tax liability on employers." Of course, if the contract did not contain Addendum A, then Crossroads was reducing the 55% of commissions due Lynch by its share of the FICA taxes, and that would be a violation of the federal statute. However, if Addendum A were part of his contract, the question arises whether a contract that defines wages due from commissions by a formula that takes into account the employer's share of FICA is a violation of the federal statute. Lynch does not develop an argument on this point, and he did not do so in the circuit court, beyond the citation to 26 U.S.C. § 3111 and Bubble Room.

¶ 33. The agency decisions also do not enlighten us on this point. The wage claim decision was based on the conclusion that Addendum A was not part of Lynch's 1997 contract and therefore Crossroads had impermissibly reduced the wages due him by the deductions it made under that formula; the decision of the bureau section chief expressly stated that it was not deciding whether Crossroads' use of the formula under Addendum A violated statutes concerning FICA, worker's compensation, and unemployment compensation. The unemployment compensation decision was also expressly based on construing the contract not to include Addendum A. The worker's compensation decision was ambiguous on this point. Therefore, none of the agency decisions provides an analysis under which application of the formula in Addendum A, even if agreed to by the employee, is a violation of statutes imposing on employers obligations for contributions to systems such as unemployment compensation, worker's compensation, or social security.

¶ 34. In short, Lynch has not sufficiently developed his argument that Crossroads acted unlawfully in deducting its share of FICA in applying the formula under Addendum A if that were part of Lynch's contract. We therefore cannot conclude that the circuit court erroneously exercised its discretion in tying its assessment of the reasonableness of Crossroads' position on the FICA deductions to the reasonableness of Crossroads' position on the construction of the contract. As to the latter position of Crossroads, Lynch does not develop an argument that the circuit court erred in concluding that Crossroads had a reasonable basis for its construction of the 1997 contract.

2. Attorney Fees, Wis. Stat. § 109.03(6)

¶ 35. Lynch contends the circuit court erroneously exercised its discretion in awarding only $6641.58 in attorney fees and other expenses. According to Lynch and the amicus curiae, the Wisconsin Employment Lawyers Association, the circuit court should have used the "lodestar" approach. This approach was established by the United States Supreme Court in analyzing the reasonableness of attorney fees awarded under 42 U.S.C. § 1988, which authorizes courts to award reasonable attorney fees in actions under certain federal civil rights statutes. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); City of Riverside v. Rivera, 477 U.S. 561, 568 (1986). Under the lodestar approach, the starting point is the number of hours reasonably expended, multiplied by a reasonable hourly rate, with upward or downward adjustments then made after taking other relevant factors into account. Hensley, 461 U.S. at 434; City of Riverside, 477 U.S. at 568. Use of this approach is necessary, Lynch and the amicus both contend, to effectuate the purpose of Wis. Stat. § 109.03(6). According to Lynch, had the circuit court used the correct approach, it would have awarded all the fees and expenses requested. Crossroads responds that the circuit court properly exercised its discretion in considering the factors under SCR 20.1.5(a).

¶ 36. Wisconsin Stat. § 109.03(6) provides that "[i]n an action by an employee ... against the employer on a wage claim .. . the court may allow the prevailing party, in addition to other costs, a reasonable sum for expenses." We have construed this statute to authorize a court to award reasonable attorney fees. Jacobson v. American Tool Cos., 222 Wis. 2d 384, 401, 588 N.W.2d 67 (Ct. App. 1998). In reaching this result, we identified the purpose of Wis. Stat. ch. 109: to ensure that employees receive their wages when due, because if they do not, they and their families will suffer. Id. at 400-01. We reasoned that if the employee were not awarded attorney fees incurred in bringing an action under ch. 109, the employee would not receive the full wages he or she was entitled to, because the employee would be forced to pay the fees out of the wages awarded by the court. Id. at 401. That result, we concluded, would "contradict the purpose of the legislatively-created remedy." Id.

¶ 37. The amount of attorney fees a court decides to award under this section is committed to the circuit court's discretion. Beaudette, 265 Wis. 2d 744, ¶ 31. Because application of the correct legal standard is essential to the proper exercise of discretion, id., we consider first what legal standard a circuit court should apply in determining reasonable attorney fees under Wis. Stat. § 109.03(6).

¶ 38. This court and the supreme court have approved the application of the factors in SCR 20:1.5(a) in reviewing a circuit court's exercise of discretion in determining reasonable attorney fees under fee-shifting statutes. See, e.g., Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 204-06, 496 N.W.2d 57 (1993); Standard Theatres v. DOT, 118 Wis. 2d 730, 749, 349 N.W.2d 661 (1984) (both discussing attorney fees under Wis. Stat. § 32.28(3), involving condemnation proceedings); Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, ¶ 16, 266 Wis. 2d 659, 668 N.W.2d 798 (awarding attorney fees against a motor vehicle dealer under Wis. Stat. § 218.0163(2)); Beaudette, 265 Wis. 2d 744, ¶ 33 (under Wis. Stat. § 109.03(6)). However, we are not aware of any reported case that has addressed the relationship of the "lodestar" approach to the application of SCR 20:1.5(a) when awarding reasonable attorney fees under a state fee-shifting statute.

¶ 39. As Lynch and the amicus acknowledge, United States Supreme Court decisions construing federal fee-shifting statutes are binding on courts of this state only with respect to those federal statutes. Nonetheless, we have considered those cases persuasive and have adopted their approach in deciding whether parties have "prevailed" under various Wisconsin fee-shifting statutes, that is, statutes that allow recovery of attorney fees by the prevailing party. See, e.g., Community Credit Plan, Inc. v. Johnson, 221 Wis. 2d 766, 775-76, 586 N.W.2d 77 (Ct. App. 1998), aff'd 228 Wis. 2d 30, 596 N.W.2d 799 (1999) (awarding attorney fees under Wis. Stat. § 425.308, the fee provision of the Wisconsin Consumer Act); Radford v. J.J.B. Enterprises, Ltd., 163 Wis. 2d 534, 550, 472 N.W.2d 790 (Ct. App. 1991) (under Wis. Stat. § 100.18(11)(b)2, protecting against deceptive advertising); J.S. v. State, 144 Wis. 2d 670, 680, 682, 425 N.W.2d 15 (Ct. App. 1988) (under Wis. Stat. § 51.61(7)(c), protecting patients' rights). We have also adopted the approach of federal case law in deciding to allow reasonable attorney fees necessary to litigate the reasonableness of a fee under state fee-shifting statutes. Chmill v. Friendly Ford-Mercury, 154 Wis. 2d 407, 414-15, 453 N.W.2d 197 (Ct. App. 1990) (under Wis. Stat. § 218.0171(7), the Wisconsin Lemon Law); and in deciding that the circuit court did not err in refusing to reduce fees below a reasonable rate applied to a reasonable number of hours because of a contingent fee agreement. Wright v. Mercy Hosp., 206 Wis. 2d 449, 470-71, 557 N.W.2d 846 (Ct. App. 1996) (under Wis. Stat. § 51.61(7)(a)).

¶ 40. Although SCR 20:1.5(a) does not explicitly refer to a reasonable number of hours and a reasonable hourly rate, SCR 20:1.5(a)(1), (3), and (7) do cover these. Examination of "the time and labor required [and] the novelty and difficulty of the questions involved," SCR 20:1.5 (a)(1), addresses the amount of time reasonably required in the particular case. Examination of "[t]he skill requisite to perform the legal service properly," SCR 20:1.5(a)(1), "[t]he fee customarily charged in the locality for similar legal services," SCR 20:1.5(a)(3), and "[t]he experience, reputation, and ability of the lawyer or lawyers performing the services," SCR 20:1.5(a)(7), addresses the reasonableness of the hourly rate. Indeed, the court in Hensley made essentially the same observation when it stated that many of the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), which were appropriate to take into account after arriving at the lodestar to adjust the fee upward or downward, "usually are subsumed within . . . the hours reasonably expended at a reasonable hourly rate." 461 U.S. at 434 n.9. The factors listed in Johnson were derived directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106, Hensley, 461 U.S. at 430 n.3, and they are the same factors contained in SCR 20:1.5(a) except that the latter does not contain "the 'undesirability' of the case" and "awards in similar cases."

¶ 41. While the factors of a reasonable hourly rate and a reasonable number of hours expended are included in SCR 20:1.5(a), there are advantages to using those two as a starting point, as the court in Hensley decided. Those two factors are relevant in every case in which a court determines reasonable attorney fees under a fee-shifting statute such as Wis. Stat. § 109.03(6), while other factors listed in SCR 20:1.5(a) are not always relevant. In addition, those two factors are useful as a context for evaluating any other relevant factors: as the court in Hensley explained, this calculation "provides an objective basis on which to make an initial estimate of the value of a lawyer's services." 461 U.S. at 433. Accordingly, we conclude that in determining what a reasonable attorney fee is under § 109.03(6), a circuit court should start with a determination of a reasonable hourly rate and a reasonable number of hours and then make adjustments for other factors in SCR 20:1.5(a) or any other relevant factors.

¶ 42. In this case, the circuit court determined the evidence showed that the hourly rate of $225 was reasonable. However, instead of then determining what number of hours were reasonably necessary to perform the work, the court went directly to a consideration of other factors in SCR 20:1.5(a). The reasons the court gave for awarding $6641.58, including costs, were the following: the questions involved were not novel or difficult; a high level of skill was not necessary to perform the legal services and "an experienced attorney [did not need] to devote the amount of time to this case because the issues were relatively mundane contract issues[;] . .. the case was resolved... on summary judgment without the need for extensive trial preparation or protracted litigation[;]" and a fee request of almost $15,000 is excessive when the amount involved is only approximately $10,000. In addition, the court stated that attorney fees of $6641.58 would make Lynch "completely whole for the monies he had coming for his full wages and benefits." We understand this last rationale to be a reference to Lynch's fee agreement. Under this agreement between Lynch and his counsel, attorney fees were the greater of the attorney fees awarded by the court or (if before any appeal) 40% of the recovery inclusive of attorney fees awarded. Although the court did not explain how it arrived at the very precise figure of $6641.58, it appears the court applied the fee agreement formula: 40% of the sum of $9962.46 (the wages and penalty awarded) plus $6641.58 equals $6641.62. Thus, it is apparent that the circuit court used the fee agreement to calculate the lowest attorney fee award that would not require Lynch to use part of his award to pay his attorney.

¶ 43. The circuit court's observations on the difficulty of the issues and the skill required are supported by the record, as are its observations that the court proceeding was resolved on summary judgment and was not protracted. However, those observations do not indicate what amount of time was reasonably necessary given those factors nor do they necessarily mean the amount of time Lynch's counsel spent was not reasonable. The largest amounts of time were spent on taking the depositions of Tullís and Schroeder and defending the deposition of Lynch, as well as the preparation of the exhibits and two briefs on the motion for summary judgment. We are uncertain from the circuit court's comments whether it viewed this discovery as unnecessary and, if so, why. Similarly, we are uncertain whether the court viewed the amount of time spent on briefing unreasonable and, if so, why. A necessary ingredient in analyzing whether the time spent on these and other tasks was reasonable is the amount of work required to respond to Crossroads' positions. It is true that some of the amounts the court concluded were undisputed were determined by the administrative agencies, but the holiday and vacation pay and Compcare patients were not. More importantly, Crossroads disputed the amounts determined by the agencies and presented numerous and often inconsistent theories as to why it owed Lynch nothing. We recognize that the circuit court is better situated than we are to discern unnecessary expenditures of time, hut without the aid of more specific comments, we are unable to tell from the record which expenditures of time the court viewed as unnecessary or excessive. Given the hourly rate the court found reasonable — $225 per hour — the fee the court arrived at means that 29.5 hours were all that were reasonably necessary (ignoring for the moment the eight hours spent by the law clerk and the costs). However, nothing in the record explains why approximately half of the attorney's time was unnecessary

¶ 44. We are not suggesting that the circuit court needs to itemize each entry it determines is unnecessary, but some explanation of the unnecessary tasks is needed to assist us in reviewing the circuit court's decision. For example, in Beaudette we affirmed a circuit court's decision to award $9500 in attorney fees on a wage claim rather than the $14,087 requested because, among other factors, the circuit court found that much of the time spent by three attorneys was devoted to research and interoffice conferences, and, given the absence of case law in the area, the circuit court considered the time spent on research unreasonable. 265 Wis. 2d 744, ¶ 33. Similarly, in Kolupar, 266 Wis. 2d 659, ¶¶ 17-18, we affirmed a circuit court's decision to award $15,000 in attorney fees rather than the $53,000 requested because the plaintiffs attorneys conducted unnecessary discovery, "over pled" her claim, missed discovery deadlines, and "over tried" the case.

¶ 45. The circuit court's use here of the fee agreement to arrive at attorney fees is not an adequate substitute for determining whether the number of hours expended was reasonable and, if not, what would be a reasonable number. The court's use of the fee agreement does assure that Lynch need not pay attorney fees out of his recovery. However, it thwarts another important purpose of fee-shifting statutes such as Wis. Stat. § 109.03(6): encouraging attorneys to take meritorious cases they would not otherwise take because the amount at stake is not large. See Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983) (discussing Wis. Stat. § 100.20(5)). Reducing requested fees to the minimum necessary under a fee agreement to avoid a client having to pay from the recovery, without an analysis of the reasonableness of the hours expended, will discourage rather than encourage attorneys to take meritorious wage claim cases. Such a method for arriving at a fee is not logically related to a reasonable fee.

¶ 46. Another reason the court gave for its decision also thwarts the purpose of encouraging attorneys to take meritorious wage claims for modest amounts. The court compared the size of the award to the fees requested, without explaining why the size of the award made a smaller amount of fees reasonable. In this case, Lynch recovered all the wages he sought and some of the penalty he sought. There is no suggestion in the record that Crossroads would have paid him the wages he sought without this litigation — the agency decisions certainly had not induced it to do so. We recognize that SCR 20:1.5(a)(4) does list as a factor "the amount involved and the results obtained." We do not suggest this factor is irrelevant in determining a reasonable fee under a fee-shifting statute such as Wis. Stat. § 109.03(6), hut its significance must be understood in the context of the purposes of the fee-shifting statute. A small recovery in relation to the amount sought might he relevant because it might indicate time was spent by the attorney that was not reasonably necessary. See Kolupar, 266 Wis. 2d 659, ¶¶ 16-17. A rejected settlement offer that turns out to be the same as the amount recovered might also bear on the reasonableness of the hours expended. There are no doubt other examples. But the amount recovered in itself is not a reason to reduce a fee below an amount that represents a reasonable hourly rate for a reasonable number of hours expended, particularly where, as here, the wage claimant recovers all the unpaid wages he sought. Any other approach has the likely result of making legal representation more difficult to obtain in cases involving small amounts of unpaid wages; yet it may be precisely the wage claimants owed the smallest amounts who are most in need of their unpaid wages.

¶ 47. In summary, we conclude the circuit court erroneously exercised its discretion by: (1) not first determining a reasonable number of hours to expend on this case, which, when multiplied by the hourly fee the court found reasonable, should have been the starting point for the consideration of other factors; (2) calculating a fee as it apparently did based on the fee agreement; and (3) considering the amount recovered, in itself, as a factor favoring reduction below a reasonable hourly rate for a reasonable number of hours.

¶ 48. However, we do not agree with Lynch that the circuit court was obligated to find that the number of hours his attorney expended were reasonable solely because the two affidavits submitted by other attorneys averred they were and there was no evidence to the contrary. Lynch relies on Crawford County v. Masel, 2000 WI App 172, 238 Wis. 2d 380, 617 N.W.2d 188, in which we addressed the issue of determining a reasonable hourly rate under 42 U.S.C. § 1988. We concluded that, because the plaintiffs submissions supported the reasonableness of his attorney's requested hourly rate and the defendant's affidavit lacked adequate foundation to support a lower rate, the court erroneously exercised its discretion by adopting that lower rate. Id., ¶¶ 14-18. In reaching our conclusion, we stated that the court's belief based on its own experience that the requested rate was unreasonable could not be the sole basis for finding a requested rate to be unreasonable, where the attorney provides "substantial factual and opinion evidence to prove the prevailing market rate in the community." Id., ¶¶ 16, 17 & n.6.

¶ 49. Our analysis in Crawford County was directed to the determination of a reasonable hourly rate, not a reasonable number of hours expended. That distinction is significant. A circuit court's assessment of the amounts of time reasonably expended by an attorney on a case over which the circuit court presides is based on the court's firsthand observations on that particular case. It is not based on prior experiences of the court or facts outside the record, which the plaintiff would have no way of knowing or disproving, as it is when the court relies on its own experiences to determine a reasonable hourly rate. See id. With respect to the amount of time reasonably expended, the presiding judge may well have relevant information that attorneys not involved in the case do not have from a review of the record. Thus, while the circuit court must consider the affidavits of other attorneys supporting the reasonableness of the number of hours expended by the plaintiffs counsel, we conclude the court is not obligated to accept their opinions solely because there are no controverting affidavits. Rather, after considering those affidavits, the circuit court may use its own firsthand knowledge of the proceeding in determining the number of hours reasonably expended.

¶ 50. Because the circuit court erroneously exercised its discretion in determining a reasonable attorney fee, we reverse and remand for a determination of a reasonable fee consistent with this opinion.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3128 (2002).

       One of the documents attached to Crossroads' counsel's affidavit in support of its motion for reconsideration was a copy of a letter dated December 27, 2000, from counsel to the unemployment insurance division appealing the initial determination. Counsel avers that, "for whatever reason, [the agency] did not properly process the appeal." As we explain later, the circuit court declined to consider documents that were not timely filed according to the summary judgment schedule. In any event, nothing in the record suggests that the unemployment insurance division ever issued a document concerning Lynch after the January 17, 2000 notification.

       All the contracts Lynch signed had a $15 per hour billable rate for Medical Assistance patients.

       The hourly rate specified for the law clerk was $60. There were no arguments and no findings by the court on the reasonableness of this rate.

       We observe one evident flaw in the method Crossroads uses in this exhibit. Crossroads subtracts the amounts Lynch was actually paid, which, according to Crossroads, included vacation and holiday pay, from 55% of collections. However, the plain language of the 1997 contract entitles Lynch to the specified vacation and holiday pay in addition to either $30 per hour for billable therapy hours or 55% of collections, whichever is greater. The effect of Crossroads' calculation is that it does not pay Lynch's full vacation and holiday pay if 55% of collections exceeds $30 per hour for billable therapy hours, but that is not what the contract provides.

       Lynch asks us to adopt a standard in applying this section that is used by federal courts in applying similar, but differently worded, provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 216(b), 260 (2002). It is unnecessary to our decision to address this argument.

       The Supreme Court has extended the Hensley analysis to all federal fee-shifting statutes. See City of Burlington v. Dague, 505 U.S. 557, 565-67 (1992).

       Some of the language the court used suggests that it was following the Hensley approach. After determining that $225 was a reasonable fee based on the evidence, the court stated that "[pllaintiff s calculation of attorney fees becomes a base figure for determining the reasonableness of the fee. This figure can then be adjusted upward or downward after considering several factors known as the Johnson Factors.... These factors are set forth in SCR 20:1.5...." To clarify, under Hensley and our holding today, the "plaintiffs calculation" is not the "base figure" or starting point; rather, a determination of a reasonable hourly rate and the number of hours reasonably expended is the starting point. The circuit court does not start by accepting the number of hours for which the plaintiffs counsel requests payment, but instead undertakes its own analysis of whether those hours were reasonably necessary, and, if they are not, what number of hours were reasonably necessary.

       It appears that the circuit court transposed two numbers, getting $3984.948 as the product of 40% times $9962.46, rather than $3984.984. That accounts for the difference between $6641.58 and $6641.62.

       If we are in error and the circuit court did not arrive at $6641.58 based on the fee agreement as we have surmised, we would nonetheless reverse and remand because we are not able to tell from the record how the court arrived at that amount.

       In Beaudette v. Eau Claire County Sheriff's Department, the circuit court compared the fee requested to the amount recovered as a one of the factors in its analysis, and we listed this as one of the factors that was appropriate for the court to consider. 2003 WI App 153, ¶¶ 32-33, 265 Wis. 2d 744, 668 N.W.2d 133. However, apparently because the issue was not raised in that case, we did not discuss whether the amount of the recovery in itself could properly be a basis for reducing a fee below an amount that represents a reasonable hourly rate times a reasonable number of hours expended.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent,  v. Timothy Scott Bailey Smith, Sr., Defendant-Appellant.
    Court of Appeals

      No. 03-1698-CR.

      Submitted on briefs January 13, 2004.

      Decided May 27, 2004.

    2004 WI App 116
    (Also reported in 685 N.W.2d 821.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick M. Donnelly, assistant state public defender, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Vergeront and Higginbotham, JJ.

       Petition to review granted 8-2-04.

   DYKMAN, J.

¶ 1. Timothy Smith, Sr., appeals from a judgment convicting him of two felony counts of failure to pay child support. He contends the trial court erred in refusing to instruct the jury that the child support order upon which the charges were based must have been issued by a court of competent jurisdiction and that the court erroneously exercised its discretion by admitting an unauthenticated copy of the child support order into evidence. Smith further argues that the evidence presented was insufficient to support his conviction. For the reasons discussed below, we agree and reverse the judgment of conviction.

BACKGROUND

¶ 2. Timothy and Denise Smith were married in Connecticut in 1977 and were divorced in 1989 by a district court in Waldo County, Maine. Although the couple had three children, no child support order was entered at the time of the divorce. Denise and the children subsequently moved to Wisconsin. A child support case manager in Green County, Wisconsin, eventually submitted a petition for child support on Denise's behalf to the Maine Department of Human Services, pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). Upon meeting with an employee of the Division of Support Enforcement in the Maine Department of Human Services, Timothy signed an order indicating he agreed to make child support payments. A judge from the Sagadahoc County Superior Court also signed the order, which directed Timothy to pay $68.00 per week in child support.

¶ 3. In 1999, the State of Wisconsin charged Timothy with two counts of failure to pay child support for periods of 120 or more consecutive days. Prior to trial, Timothy challenged the validity of the child support order that he was accused of violating, claiming that the Sagadahoc County Superior Court was not a court of competent jurisdiction within the meaning of Wis. Stat. § 948.22(l)(a) (2001-02). He argued that the question of the court's competent jurisdiction must be submitted to the jury, and he requested a jury instruction to that effect. The trial court ruled as a matter of law that the court that had issued the child support order was one of competent jurisdiction, and refused to instruct the jury on the issue or to allow Timothy to present direct evidence on the question. The court did, however, allow Timothy to present evidence as to why he believed he was not legally obligated to comply with the child support order.

¶ 4. At trial, the state produced a copy of an order that had purportedly been signed by Justice Brennan of the Sagadahoc County Superior Court. The copy bore the Green County Circuit Court seal and was certified by a deputy clerk of the Green County Circuit Court to be a full and correct copy of a document on file in the Green County Circuit Court. An employee of the Office of the Clerk of the Circuit Court for Green County explained that the copy being offered into evidence had been made from another copy of the Maine order that had in turn been certified as a true copy by an assistant clerk of the Superior Court for Sagadahoc County, Maine. The trial court admitted the copy into evidence over the objection of the defense. Timothy was convicted of both counts.

DISCUSSION

Jury Instruction on Essential Elements of Failure to Provide Child Support

¶ 5. The Fifth Amendment to the United States Constitution requires that all criminal convictions "rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 509-10 (1995). Smith argues that his Fifth Amendment right to have the jury determine his guilt on all elements of the charged crime was violated by the trial court's refusal to instruct the jury that the child support order at issue in this case must have been issued by a court of competent jurisdiction. In order to evaluate Smith's claim, we must first identify the elements of the charged crime, felony failure to provide child support. Determining the statutory elements of a crime presents a question of law which we review de novo. State v. Ruesch, 214 Wis. 2d 548, 552, 571 N.W.2d 898 (Ct. App. 1997).

¶ 6. Wisconsin Stat. § 948.22(2) provides that "[a]ny person who intentionally fails for 120 or more consecutive days to provide . . . child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a... felony." The statute defines "child support" to include "an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state ...Section 948.22(l)(a).

•¶ 7. The parties agree that the felony crime of failure to provide child support includes the following elements: (1) that the defendant intentionally failed to provide child support; (2) that the failure to provide support continued for 120 or more consecutive days; and (3) that the defendant knew or reasonably should have known that he was legally obligated to provide the child support. See Wis. JI — Criminal 2152 (2001). They disagree over whether the State must also prove a fourth element, namely, that the child support order was issued by a court of competent jurisdiction.

¶ 8. The State maintains that the question of whether a particular court that issued a child support order was one of competent jurisdiction is "purely a predicate question of law for the trial court, without any factual component for jury determination." The United States Supreme Court rejected a similar argument in Gaudin, however. In Gaudin, the government asked the court to decide that the question of materiality was not an essential element of the crime of making a materially false statement that needed to be submitted to the jury, but rather a legal question to be decided by the court. Gaudin, 515 U.S. at 511. In dismissing the government's arguments, the court acknowledged that a judge "must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." Id. at 513. It noted, however, that how the question of relevancy or materiality might be treated for purposes of determining the admissibility of evidence was not dispositive of how the question should be treated when explicitly made an element of a criminal offense. Id. at 520-21. It explained that the ultimate materiality determination required applying a legal standard to historical facts, and that criminal defendants had a right to demand that the jury decide every issue, including those involving the application of law to facts. Id. at 512-14. The court concluded that the trial court's refusal to submit the question of materiality to the jury violated the defendant's Fifth Amendment rights. Id. at 522-23.

¶ 9. Under the reasoning of Gaudin, we are persuaded that where, as here, a charge of failure to provide child support is based upon noncompliance with a child support order, the question of whether the child support order has been issued by a court of competent jurisdiction needs to be submitted to the jury, even though that determination involves the application of a legal standard to the facts of the case. Thus, in order to obtain a conviction for felony failure to provide child support based upon noncompliance with a support order, the State must prove the following four elements: (1) a court of competent jurisdiction issued an order requiring the defendant to provide child support; (2) the defendant knew or reasonably should have known that he was legally obligated to provide the child support; (3) the defendant intentionally failed to provide the support specified in the order; and (4) the failure to provide support continued for 120 or more consecutive days. We conclude the trial court's refusal in this case to instruct the jury that the child support order needed to have been issued by-a court of competent jurisdiction deprived the defendant of his Fifth Amendment right to have all elements of the crime decided by a jury.

¶ 10. The State points out that omissions in jury instructions are subject to a harmless-error analysis. See State v. Harvey, 2002 WI 93, ¶ 6, 254 Wis. 2d 442, 647 N.W.2d 189. An error is only harmless, however, if it is clear beyond a reasonable doubt that a rational jury would still have convicted absent the error. See State v. Carlson, 2003 WI 40, ¶ 46, 261 Wis. 2d 97, 661 N.W.2d 51. We cannot draw such a conclusion where, as here, not only was the jury not instructed on an essential element of the charged crime, but the defense was also precluded from presenting evidence on that element.

¶ 11. The State next contends that the remedy for an inadequate jury instruction should be a remand for a new trial. Smith, on the other hand, argues that he is entitled to an acquittal because the State also failed to present sufficient evidence to prove that the child support order had been issued by a court of competent jurisdiction. Before we evaluate the sufficiency of the evidence presented in this case, we will first determine what is meant by the statutory phrase "court of competent jurisdiction" and resolve the parties' dispute over whether the child support order from Maine was properly entered into evidence.

Meaning of "Court of Competent Jurisdiction"

¶ 12. We review questions of statutory interpretation de novo, according to a well-established methodology.

The purpose of statutory interpretation is to discern the intent of the legislature. To determine this intent, we look first to the plain language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, it is our duty to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning.
If the language of the statute is ambiguous and does not clearly set forth the legislative intent, the court will resort to judicial construction. We ascertain legislative intent through judicial construction in relation to a number of extrinsic factors, including the legislative object intended to be accomplished, and the statute's scope, history, context, and subject matter. A statute is ambiguous if it is capable of being understood by a reasonably well-informed person in either of two senses. Depending on the facts of a case, the same statute may be ambiguous in one setting and unambiguous in another.
In addition, although "it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute." Moreover, in interpreting a statute, courts must attempt to give effect to every word of a statute, so as not to render any portion of the statute superfluous.

Landis v. Physicians Ins. Co. of Wisconsin, Inc., 2001 WI 86, ¶¶ 14-16, 245 Wis. 2d 1, 628 N.W.2d 893 (citations omitted).

¶ 13. Smith contends that a "court of competent jurisdiction" is one that has competency to proceed, in the sense that it has the "power to exercise" its subject matter jurisdiction. See Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 200, 496 N.W.2d 57 (1993). The State asserts that the term "court of competent jurisdiction" is ambiguous, because it can sometimes refer to a court having subject matter jurisdiction alone, and sometimes refer to a court having both subject matter and personal jurisdiction. The State's assertion that the phrase can be reasonably interpreted in more than one way finds support in a summary of black letter law on the topic of jurisdiction, which states:

The term "competent jurisdiction" is susceptible of two meanings; it may signify that the court must acquire and exercise jurisdiction competent to grant an application, through and by reason of a strict conformity to the requirements of a statute, or it may signify jurisdiction over the subject matter, a sort of authority in the abstract, to hear and determine a case. In its usual meaning, however, the term embraces the person as well as the case.
A court of competent jurisdiction is one recognized by law as possessing the right to adjudicate the controversy, or one having power and authority of law at the time of acting to do the particular act, or one that has jurisdiction both of the person and of the subject matter.

21 C.J.S. Courts § 9 (1990). We agree that the phrase "court of competent jurisdiction," as used in Wis. Stat. § 948.22, could reasonably be understood either to include or not include the requirement of personal jurisdiction. We therefore conclude the statute is ambiguous in that regard. Accordingly, we will look to extrinsic factors for assistance in interpreting it.

¶ 14. None of the drafting history offered by the parties explicitly addresses what the legislature meant by a court of competent jurisdiction. The object, scope, and context of Wis. Stat. § 948.22 are rather straightforward, however. The object of the statute is to criminalize a person's intentional failure to provide support in accordance with a known or constructively known legal obligation. The scope of the statute encompasses failure to fulfill support obligations imposed by court orders issued in Wisconsin or in other states, territories or possessions of the United States, as well as those imposed by statute. The statute must be placed in the context of a number of other state and federal statutes dealing with the effect and enforcement of child support orders in states other than those that issued them.

¶ 15. For instance, 28 U.S.C. § 1738A (1989) deals with the question of full faith and credit for child support orders. It provides that the appropriate authorities of each state shall enforce the terms of a child support order from another state when the court that issued the order had both subject matter jurisdiction to hear the matter and had personal jurisdiction over the contestants, and the contestants were given reasonable notice and opportunity to be heard. 28 U.S.C. § 1738A(a), (c). In addition, Wis. Stat. § 767.21(l)(a) provides:

Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory or possession of the United States, when both spouses personally appear or when the respondent has been personally served.

¶ 16. While the question of whether an order issued in another state can he enforced in this state is technically distinct from the question of whether such an order can serve as the basis for a felony failure to support charge, we see no logical reason why the standard for evaluating the authority of the courts that issued such orders should differ. Both the full faith and credit provisions and the felony failure to support statute serve to encourage compliance with valid out-of-state child support orders. If a defect in subject matter jurisdiction, personal jurisdiction, or notice would render an out-of-state support order invalid and unenforceable under the full faith and credit provisions, it would make no sense to allow noncompliance with such a defective order to serve as the basis for a criminal action. We conclude that the term "court of competent jurisdiction," as used in Wis. Stat. § 948.22, means a court that had both the power to exercise subject matter jurisdiction and the personal jurisdiction to issue a support order. The personal jurisdiction requirement in turn encompasses the requirement of adequate notice.

¶ 17. We are aware that subject matter jurisdiction and personal jurisdiction may be difficult concepts for a jury to grasp. Our decision means the State might be required to provide expert testimony on the question of competent jurisdiction, particularly where an out-of-state order is involved. See Witt v. Realist, Inc., 18 Wis. 2d 282, 289-90, 118 N.W.2d 85 (1962) (foreign law is to be proven as other facts and expert testimony on the subject is permissible). In the typical case, however, we are confident that a trial court could give adequate instructions to guide the jury as to whether an order was issued by a court of competent jurisdiction. That is, the court could properly instruct the jury as to the relevant law. The jury could then apply the trial court's explanation of the law in determining whether a court of competent jurisdiction did, in fact, issue an order requiring the defendant to provide support.

Admissibility of the Support Order

¶ 18. We next consider Smith's claim that the copy of the Maine child support order introduced by the State should have been excluded from evidence for lack of authentication. The admissibility of evidence generally lies within the trial court's discretion. Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698. A court properly exercises discretion when it considers the facts of record under the proper legal standard and reasons its way to a rational conclusion. Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991).

¶ 19. As we understand the parties' arguments, Smith contends that 28 U.S.C. § 1738 — a full faith and credit provision enacted under the authority of Article iy section 1 of the United States Constitution— preempts any state statutes relating to the authentication or admissibility of out-of-state orders, such that a certificate from a judge is always required to authenticate an out-of-state court order. The State disputes that 28 U.S.C. § 1738 is the exclusive method for authenticating out-of-state orders, and contends that the Maine order at issue here was admissible under either Wis. Stat. § 889.15 or § 909.02. We will set forth the relevant portions of these provisions before discussing their application here.

¶ 20. First, 28 U.S.C. § 1738 provides:

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the Untied States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

¶ 21. Wisconsin Stat. § 889.15 provides:

The records and judicial proceedings of any court of the United States, or of any state or territory or district thereof and of any foreign country, and copies thereof, shall be admissible in evidence in all cases in this state when authenticated or certified in the manner directed by ss. 889.07 and 889.08 or by acts of congress, or the laws of such state, territory or district, or of such foreign country.

¶ 22. Wisconsin Stat. § 889.07, in turn, provides that a certified copy of a document "shall be received with like effect as the original," while Wis. Stat. § 889.08 specifies in relevant part:

(1) Whenever a certified copy is allowed by law to be evidence, the copy shall be certified by the legal custodian of the original to have been compared by the custodian with the original, and to be a true copy thereof or a correct transcript therefrom, or to be a photograph of the original. The certificate must be under the custodian's official seal or under the seal of the court, public body or board, whose custodian the custodian is, when the custodian, court, body or board is required to have or keep such seal.
(3) Any certificate purporting to be signed, or signed and sealed, as authorized by law, shall be presumptive evidence that it was signed by the proper officer, and if sealed, that it has the proper seal affixed, except when the law requires an additional certificate of genuineness.

¶ 23. Finally, Wis. Stat. § 909.02 provides that extrinsic evidence of authenticity is not a condition precedent to admissibility for:

(1) Public doouments undee seal. A document bearing a seal purporting to be that of the United States, or of any state ... thereof... and a signature purporting to be an attestation or execution.
(4) CERTIFIED COPIES OF PUBLIC RECORDS. A Copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with sub. (1), (2) or (3) or complying with any statute or rule adopted by the supreme court.

¶ 24. The State does not dispute Smith's contention that it failed to provide the judge's certification specified in 28 U.S.C. § 1738. It argues, however, that while compliance with the requirements of 28 U.S.C. § 1738 compels admission of an out-of-state order, failure to comply with the requirements does not necessarily require exclusion. Rather, the State maintains, 28 U.S.C. § 1738 still permits states to provide less stringent standards for authentication of out-of-state orders under their own evidentiary rules. It points to a number of decisions by other states and federal courts supporting its contention. See Starzl v. Starzl, 686 S.W.2d 203, 205 (Tex. Ct. App. 1984); Murphy v. Murphy, 581 P.2d 489, 492 (Okla. Ct. App. 1978); Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct. App. 1982); and State v. Wolfskill, 421 S.W.2d 193, 195 (Mo. 1967). We agree with the State's reasoning and consider the cases cited persuasive. 28 U.S.C. § 1738 sets forth conditions under which one state must admit into evidence an order or judgment from another state. It does not, however, make those provisions the exclusive basis for the admissibility of an out-of-state order in this state. We therefore look to the Wisconsin statutes to see if they provide an alternate basis for admissibility of the Maine child support order.

¶ 25. We agree with Smith that the State's reliance upon Wis. Stat. § 909.02 is misplaced. First of all, it is clear in the context of the statute that subsection (1) refers to the admission of original documents. The order at issue here was a certified copy of another copy of a Maine child support order. Furthermore, while subsection (4) does deal generally with the admissibility of certified copies, we are persuaded that the issue here is controlled by Wis. Stat. § 889.15 because that statute deals more specifically with the admissibility of copies of records from out-of-state judicial proceedings. See Nicolet Minerals Co. v. Town of Nashville, 2002 WI App 50, ¶ 17, 250 Wis. 2d 831, 641 N.W.2d 497, review denied, 2002 WI 48, 252 Wis. 2d 151, 644 N.W.2d 687 (Wis. Apr. 22, 2002) (No. 01-1339) (explaining that when there are multiple statutes dealing with the same issue, the more specific one controls).

¶ 26. Wisconsin Stat. § 889.15 provides three ways in which an out-of-state order may be authenticated: (1) by compliance with the certification provisions of Wis. Stat. §§ 889.07 and 889.08; (2) by compliance with the provisions set forth by Congress; or (3) by compliance with the provisions of the state where the order was issued. We conclude that the copy of the Maine child support order submitted by the State failed to satisfy any of these three methods of authentication.

¶ 27. First, the submitted copy failed to satisfy Wis. Stat. § 889.08 because it was not itself certified "by the legal custodian of the original" document filed in Maine. (Emphasis added.) Rather, the submitted copy was certified by the Deputy Clerk of Green County to be a full and correct copy of what was actually another copy of the Maine child support order which had been filed in the Green County Circuit Court. The Green County Deputy Clerk was not the custodian of the original child support order filed in Maine and was in no position either to certify or testify that the submitted copy was a true and correct copy of that order.

¶ 28. Second, as the State has conceded, the submitted copy failed to satisfy the authentication provisions provided by Congress in 28 U.S.C. § 1728 because it was not accompanied by a judicial certificate from Maine.

¶ 29. Finally, the State asserts that the relevant parts of the self-authentication rules in Maine are identical to Wis. Stat. § 909.02(1) and (4). See Me. R. Evid. 902.(1) and (4). We have already explained that the submitted copy did not satisfy § 909.02(1) because it was not an original. We further conclude that the submitted copy would not satisfy § 909.02(4), because it could not properly be "certified as correct" by the Green County Deputy Clerk, who was not a "custodian or other person authorized to make the certification" of the original order. Therefore, the State has failed to show that the submitted copy would have been admissible under the rules of evidence in Maine.

¶ 30. In light of our determination that the submitted order failed to satisfy the requirements of Wis. Stat. § 889.08(1), we need not address whether any "additional certificate of genuineness" was also required under § 889.08(3). We conclude the trial court erroneously exercised its discretion by admitting the child support order because it was operating under a mistaken view of the law.

¶ 31. The State again argues that any error was harmless. We again disagree. The child support order was a key piece of evidence relating to two different elements of the charged crime. Had the trial court properly excluded the copy of the Maine child support order, a reasonable jury might have found reason to doubt either that a child support order had been issued by a court of competent jurisdiction, or that Smith should have known that he was legally obligated to pay the specified child support.

Sufficiency of the Evidence

¶ 32. The last question before us is whether to remand this matter for a new trial, or to direct that a judgment of acquittal be entered. Double jeopardy precludes retrial if there was insufficient evidence to support the verdict. State v. Wulff, 207 Wis. 2d 143, 153-54, 557 N.W.2d 813 (1997). The test for reviewing the sufficiency of the evidence to support a verdict is whether the evidence, viewed most favorably to the state, and the conviction are so lacking in probative value and force that no reasonable jury could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). Our consideration includes even evidence which was erroneously admitted. Lockhart v. Nelson, 488 U.S. 33, 41 (1988). Given our conclusion that the State needed to prove that the child support order had been issued by a court of competent jurisdiction having both subject matter and personal jurisdiction we are persuaded that the evidence presented at trial was insufficient to support the verdict.

¶ 33. The State points out that Smith, himself, testified that he signed the document which was eventually entered as the support order in Maine, arid that he knew the order had not been overturned. However, facts tending to show that Smith had reason to believe that the order was valid go to the second element of the offense, not the first. Smith could not be convicted of failing to comply with an invalid child support order, even if he erroneously believed that it was valid. A University of Wisconsin law professor testified that it would be necessary to look at the laws of Maine in order to determine whether the court that issued Smith's child support order was one of competent jurisdiction. We agree with that assessment. The State did not present the jury with any evidence as to the laws of Maine. Nor did the State give the jury sufficient facts from which it could have resolved the questions of subject matter and personal jurisdiction. Accordingly, we reverse the judgment of conviction.

By the Court. — Judgment reversed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       At the times Smith was alleged to have failed to provide support, the offense was categorized as a Class E felony. The offense has since been reclassified as a Class I felony. The reclassification does not in any way change our analysis of the elements of the crime.


author: CURLEY, J. SCHUDSON, J.

text:
    State of Wisconsin—Department of Corrections, Petitioner-Respondent,  v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondents, James Dowell, Respondent-Appellant.
    Court of Appeals

      No. 03-2001.

      Submitted on briefs April 1, 2004.

    Decided June 2, 2004.

    2004 WI App 136
    (Also reported in 685 N.W.2d 585.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Robert G. Pultz, Wisconsin Department of Corrections.
    Before Wedemeyer, EJ., Schudson and Curley, JJ.

       Petition to review granted 9-1-04.

   CURLEY, J.

¶ 1. James Dowell appeals the trial court's order that overturned the decision of David Schwarz, the Administrator of the Division of Hearings and Appeals. Schwarz affirmed the Administrative Law Judge's (ALJ) decision not to revoke Dowell's parole. Schwarz, like the ALJ, concluded that the Department of Corrections (DOC) failed to provide proof that Dowell violated his most recent rules of parole when it attempted to revoke his parole based on DNA results that linked him to a crime that occurred during an earlier period of parole. Because Wis. Stat. § 304.072(3) (2001-02), governing the DOC's jurisdiction in parole matters, is unambiguous and clearly limits the DOC's jurisdiction to seek revocation only for violations that occur during the current term of supervision, we reverse and reinstate the decision of the Administrator of the Division of Hearings and Appeals.

I. Background.

¶ 2. Dowell was convicted on March 30, 1994, of two counts of armed robbery and one count of operating a vehicle without the owner's consent. On May 9,1994, he was sentenced to a total of ninety months in prison. He was paroled in 1997, but his parole was subsequently revoked and he was sent back to prison on March 23, 1998. Upon reaching his mandatory release date of July 17, 2001, Dowell was again paroled.

¶ 3. In May 2002, while Dowell was out on parole, the DOC received notice that Dowell's DNA matched semen found on the clothing of a victim of a crime that occurred on May 23, 1997, while Dowell was out on the first of his two periods of parole. As a result, the DOC sought to revoke Dowell's parole, as there were two years, one month and fourteen days of his sentence remaining. A revocation hearing was held on June 18, 2002. The ALJ ruled that the DOC failed to allege any conduct that violated Dowell's July 2001 parole rules, and thus, denied the DOC's request to revoke Dowell's parole, concluding that the DOC "lost jurisdiction to pursue revocation for any undiscovered conduct occurring during that parole term" once that parole was revoked. The DOC appealed this ruling to Schwarz. Schwarz upheld the ALJ's decision, finding that Wis. Stat. § 304.072(3) essentially requires a revocation recommendation to be based on a violation that occurred during the current term of supervision. The DOC then petitioned for a writ of certiorari in the trial court. After ordering briefs, the trial court reversed Schwarz's decision and signed an order to that effect.

¶ 4. As a result of the DNA match, Dowell was convicted of kidnapping, armed robbery and two counts of first-degree sexual assault with a dangerous weapon. In February 2003, he was sentenced to a total of eighty years' imprisonment.

II. Analysis.

¶ 5. A challenge to a parole revocation determination is reviewed by certiorari. State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 596, 561 N.W.2d 779 (Ct. App. 1997). The reviewing court is limited to determining: "(1) [w]hether the [parole] board kept within its jurisdiction; (2) whether [the parole hoard] acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622 (1974). Moreover, "we review the agencys decision, not the [trial] courts." Kozich v. Employe Trust Funds Bd., 203 Wis. 2d 363, 368-69, 553 N.W.2d 830 (Ct. App. 1996).

¶ 6. "Statutory interpretation is a question of law that we review de novo, and as such, we are not bound by an agency's interpretation." Hutson v. State of Wisconsin Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. However, some degree of deference is generally given to an agency's statutory interpretation, and "[t]he degree of deference . . . depends upon the extent to which the 'administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute.'" Id. (citation omitted). The supreme court has identified three distinct levels of deference: great weight deference, due weight, and de novo review. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). The de novo standard of review is "applicable when the issue before the agency is clearly one of first impression, or when an agency's position on an issue has been so inconsistent so as to provide no real guidance." Id. at 285 (citation omitted).

¶ 7. Here, although Schwarz indicated that the ALJ's interpretation is "consistent with the department's past practice," and that "the department has never sought to revoke any person's parole supervision based on conduct occurring during a previous term of parole supervisiont,]" it appears that parole revocation has been sanctioned on at least one occasion in the past for conduct occurring during a previous term. As the agency's position on the issue may not be entirely consistent, we will employ the de novo standard of review.

¶ 8. As the supreme court recently reaffirmed, "[w]hen interpreting a statute, our goal is to discern the intent of the legislature, which we derive primarily by looking at the plain meaning of the statute." Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶ 6, 270 Wis. 2d 318, 677 N.W.2d 612. [I]f the statute is unambiguous, we do not consult extrinsic sources such as legislative history to ascertain its meaning; we simply apply its plain meaning." Id. Furthermore, a statute is not rendered ambiguous "because the parties disagree as to its meaning!.]" Id., ¶ 7. A statute is only ambiguous if it "is readily susceptible to two or more meanings by reasonably well-informed individuals." Id. Accordingly, unambiguous statutes are applied according to their plain meaning, and that plain meaning "takes precedence over all extrinsic sources and rules of construction, including agency interpretations." UFE Inc., 201 Wis. 2d at 282 n.2.

¶ 9. Thus, when addressing claims of ambiguity, we first look to the wording of the statute itself. Wisconsin Stat. § 304.072(3) directs:

(3) Except as provided in s. 973.09 (3) (b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.

(Emphasis added.) Initially, § 304.072(3) references the exception created by Wis. Stat. § 973.09(3)(b), which permits a court to extend a period of probation beyond the initial term in certain circumstances. Section 304.072(3) then discusses when the DOC retains jurisdiction. It states that the DOC preserves jurisdiction over a person if the DOC "commenc[es] an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the ... parolee's . . . term of supervision." The clear implication of the statute's wording is that the DOC loses jurisdiction to commence an investigation, issue a violation report, or issue an apprehension request concerning an alleged violation if it has not done so before the term of supervision has ended. Stated differently, the DOC cannot commence preliminary parole revocation proceedings after the term of supervision has ended if it has not preserved its jurisdiction in one of the three listed manners.

¶ 10. The ALJ, in refusing to order a revocation of Dowell's parole, determined that Wis. Stat. § 304.072(3) was unambiguous. The ALJ explained:

I find the Department lost jurisdiction to pursue revocation of Mr. Dowell's parole for conduct occurring during his last parole term when that term of parole ended upon revocation of that parole .... I find that once the prior Revocation Order and Warrant was issued his last parole term expired and the Department lost jurisdiction to pursue revocation for any undiscovered conduct occurring during that parole term.

Schwarz agreed, stating: "It is reasonable to conclude that the legislature intended that section [§ 304.072(3)] to mean that the action must be taken during the current term of supervision, not during a subsequent term of supervision." Upon our de novo review, we agree.

¶ 11. After reviewing Wis. Stat. § 304.072(3), we are satisfied that the statute is not ambiguous and clearly limits the period of time during which the DOC has jurisdiction to revoke a person's parole. The only reasonable interpretation of the statute is that the DOC's jurisdiction to initiate parole revocation proceedings is limited to the current "term of supervision." Had the legislature meant to permit parole revocations proceedings for prior parole violations, as advanced by the DOC, the statute would have been written to read "prior to the expiration of the person's sentence" or "prior to the date of the person's final discharge from parole, probation or extended supervision." The DOC contends that a review of the legislative history supports its view. Inasmuch as we are satisfied that the statute is not ambiguous, we need not resort to extrinsic aids to ascertain the meaning of § 304.072(3).

¶ 12. Next, the DOC asserts, and the trial court agreed, that even if Wis. Stat. § 304.072(3) is not ambiguous, it must be harmonized with Wis. Stat. §§ 302.11(6) and 304.06(3). According to the DOC, by harmonizing § 304.072(3) with the two other statutes, § 304.072(3) is severely limited in its application. We disagree. Harmonizing the statutes yields the same result.

¶ 13. Wisconsin Stat. §§ 302.11(6) and 304.06(3) state only general rules that apply to all parolees. The relevant part of § 302.11(6) reads: "Any inmate released on parole under sub. (1) or (lg) (b) or s. 304.02 or 304.06 (1) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department." Section 304.06(3) states, in relevant part:

Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. If the department alleges that any condition or rule of parole has been violated by the prisoner, the department may take physical custody of the prisoner for the investigation of the alleged violation. If the department is satisfied that any condition or rule of parole has been violated it shall afford the prisoner such administrative hearings as are required by law.

¶ 14. We are not persuaded that a different outcome would result by harmonizing Wis. Stat. § 304.072(3) with these statutes. Wisconsin Stat. § 302.11(6) addresses the general rule that inmates released on parole are not totally free and are required to abide by the DOC's rules. Further, Wis. Stat. § 304.06(3) cautions that parolees can be taken into custody for rule violations. Neither of these statutes address the issue presented here — whether a subsequent period of parole can be revoked for violations of rules placed upon the parolee for an earlier period of parole. That question is answered by § 304.072(3), and the answer is that parole may not be revoked for earlier violations.

¶ 15. Moreover, "[w]here two statutes relate to the same subject matter, the specific statute controls the general statute." State v. Larson, 2003 WI App 235, ¶ 6, 268 Wis. 2d 162, 672 N.W.2d 322. Here, Wis. Stat. § 304.072(3) specifies when the DOC preserves jurisdiction. Wisconsin Stat. §§ 304.06(1) and 302.11(6) are more general, explaining the limitations on a parolee's freedom.

¶ 16. As a result, when Dowell's first term of supervision ended, the DOC lost jurisdiction to initiate parole revocation proceedings based upon any conduct in violation of the rules of that period of parole. Had the statute been worded to read that the DOC retained jurisdiction until the "expiration of the sentence" or until the "date of the person's final discharge from parole, probation, or extended supervision," it would yield the result desired by the DOC. However, the legislature chose to use the phrase "term of supervision." The DOC argues that a sentence is not divided into "terms." That argument is better left addressed to the legislature. Moreover, there are legitimate reasons for limiting the basis for revocation to violations during the current term of supervision. Not only would stale violations be difficult to prove or defend against, but a truly rehabilitated person who earned the right to be paroled might be confronted with long-ago violations never pursued during the earlier "term of supervision."

¶ 17. Finally, we hold the DOC's argument that this interpretation would result in ambiguities and that "the DOC could never grant a voluntary return under the DHA decision because parolees could engage in the mischief of requesting a return following serious violations, albeit unknown to the parole agent, hoping to exit with a clean slate on a new parole term," to be preposterous. Any criminal act committed during an earlier parole is subject to a new criminal charge. Dowell can attest to this fact — his earlier parole violation resulted in an eighty-year sentence.

By the Court. — Order reversed.

SCHUDSON, J.

¶ 18. (dissenting). While the issue in this appeal is one on which reasonable minds may differ, I believe the circuit court's conclusion is correct.

¶ 19. What is the meaning of "term of supervision" under Wis. Stat. § 304.072(3)? I'm not sure. But I am convinced that the majority's explanation of its "unambiguous" rationale is tautological. Here, where even State officials are at odds over the interpretation of these seemingly simple words, one thing seems quite clear: "term of supervision" is ambiguous.

¶ 20. Moving, then, to the proper methodology for analysis of an ambiguous statute, I find the Department of Corrections' arguments persuasive. The Department thoroughly examines the interplay of several statutes, the apparent legislative intent, and the supportive case law. The Department's argument that "the term 'expiration of sentence' is not used in Wis. Stat. § 304.072(3), because that statute also relates to probation supervision, which is not a sentence," all but defeats the majority's rationale. Perhaps most significantly, Wis. Stat. § 302.11(6) and (7)(d) strongly support the Department's view.

¶ 21. Therefore, harmonizing the statutes, and being mindful of the purposes of parole supervision, I am satisfied that "term of supervision" under Wis. Stat. § 304.072(3) is not limited as the majority concludes. Instead, like the circuit court, I conclude that "term of supervision" covers an individual's entire sentence, regardless of revocation stops along the way. Accordingly, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Neither brief addresses the proper level of deference to be given to the agency's interpretation of the statute. Relevant to that determination is the history of the agency's interpretation and application of the statute in the past. We have not been provided with enough information to discern just how often the agency has affirmed parole revocations based upon conduct occurring during a previous term of parole. Schwarz indicated that the DOC has never sought to revoke parole based on such conduct, but the DOC has referenced at least one occasion in which the Administrator affirmed a revocation regardless of the fact that the conduct occurred during a prior parole period. As such, we are employing the de novo standard of review. However, the outcome would be the same irrespective of which level of deference is employed, as we ultimately agree with the agency's interpretation that the department lacks jurisdiction to pursue revocation based upon conduct that occurred during a previous term of parole.

       Wisconsin Stat. § 973.09(3)(b) reads:
      (b) The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered restitution payments unpaid at least 90 days before the probation expiration date. If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of circuit court to file and enter the judgment in the judgment and hen docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under s. 806.10.

       Wisconsin Stat. § 302.11(6) (1999-2000), provides in pertinent part:
      Any inmate released on parole under sub. (1) or (lg) (b) or s. 304.02 or 304.06 (1) is subject to all conditions and rules of parole until the expiration of the sentence or until he or she is discharged by the department.

      (Emphasis added.)

       Wisconsin Stat. § 302.11(7)(d) (1999-2000), provides:

        A parolee who is subsequently released either after service of the period of time determined by the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a hearing under par. (a) or by a grant of parole under par. (c) is subject to all conditions and rules of parole until expiration of sentence or discharge by the department.

      (Emphasis added.)