author: HOOVER, PJ.

text:
    Bill's Distributing, Ltd., Plaintiff-Appellant, v. Gerald Cormican, Susan Cormican, Gerald Cormi-can and Susan Cormican d/b/a Cormican Trucking, Cormican Logging/Trucking, LLP Defendants-Respondents, John Jourdan and Judith Jourdan, Defendants-Third-Party Plaintiffs-Respondents, v. Kincaid & Ruetz Forestry Consultants, Inc., Third-Party Defendant.
    Court of Appeals

      No. 01-2567.

      Submitted on briefs April 1, 2002.

    Decided May 7, 2002.

    2002 WI App 156
    (Also reported in 647 N.W.2d 908.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peter M. Reinhardt and Bakke Norman S.C. of Menomonie.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Richard J. Kelly, Michael J. Happe, and Kelly & Ryberg, S.C. of Eau Claire.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Bill's Distributing, Ltd., appeals an order in its action to recover damages for trees erroneously removed from its land. The trial court ordered that Wis. Stat. § 26.09 (1999-2000) could not apply retroactively and that Bill's was not entitled to the restoration damages for its trees. Bill's argues that the recently amended version of Wis. Stat. § 26.09 (1997-1998), the timber trespass statute, should apply retroactively to its claim. We disagree and affirm that portion of the order because the changes to the statute are substantive rather than procedural. Bill's also contends that it is entitled to restoration damages for its trees. We agree and reverse that part of the order because § 26.09 (1997-1998) is not an exclusive remedy.

Background

¶ 2. Bill's owns wooded hunting and recreational land. John and Judith Jourdan own adjoining property. Kincaid & Ruetz Forestry Consultants, Inc., contracted with John Jourdan to arrange the sale of timber from the Jourdans' land.

¶ 3. Gerald and Susan Cormican, doing business as Cormican Logging/Trucking, LLR harvest timber. In 1999, Jourdan and Cormican entered into a contract permitting Cormican to remove designated timber from the Jourdans' land. The Cormicans, however, removed approximately four acres of timber from Bill's property without its consent, and the Jourdans received compensation for that timber.

¶ 4. Bill's commenced this action against the Cor-micans and the Jourdans, alleging timber trespass and unjust enrichment. Bill's later amended its complaint to add allegations of negligence and private nuisance and to add Kincaid & Ruetz as a defendant.

¶ 5. The trial court issued an order concluding that Bill's damage remedy for the timber wrongfully removed from its property was limited to "stumpage value," rather than restoration damages. The court also decided that the amended Wis. Stat. § 26.09 (1999-2000) could not apply retroactively to Bill's action. We granted Bill's leave to appeal.

Standard of Review

¶ 6. The interpretation of a statute and its application to a set of facts are questions of law we review de novo. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999). The purpose of statutory interpretation is to discern the intent of the legislature. Id. at 365. To determine intent, we look to the plain language of the statute. Id. "A statute is ambiguous if it capable of being understood by a reasonably well-informed person in either of two senses." Id. If the language of the statute renders legislative intent ambiguous, we resort to judicial construction. Id.

Discussion

A. Wisconsin Stat. § 26.09

¶ 7. Wisconsin Stat. § 26.09 (1997-1998) created a civil claim for recovery of damages resulting from timber trespass. The legislature amended the statute by 1999 Wis. Act 190, § 15, effective June 2, 2000. Section 26.09 (1999-2000) provides in pertinent part:

(2) PERSONS entitled to sue: exception, (a). In addition to any other enforcement action that may be taken and subject to par. (b), an owner of raw forest products that were harvested without the consent of the owner may bring a civil action against the person who harvested the raw forest products to recover the damages caused by the harvesting. In addition to any other enforcement action and subject to par. (b), a county in which a violation of s. 26.03 (lg) or (lr) or a rule promulgated under s. 26.03 (lg) or (lr) occurred may bring a civil action to recover damages for the violation.
(b) An owner may not recover damages under this subsection if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied on a written agreement among adjacent owners, or their agents, that the owner giving consent to harvest has the authority to do so even if after the harvesting it is determined that the owner giving the consent did not have such authority, but only if the harvesting is from land owned by an owner who is a party to the agreement.
(3) Damages, (a) A person against whom an action is brought as provided in sub. (2) is liable for the applicable damages under par. (b) or (c), subject to sub. (6), and other reasonable and necessary costs under par. (d).
(b) 1. A court shall award damages that equal the stumpage value of the raw forest products harvested if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied upon a recorded survey that was done by a person who is registered as a land surveyor or who is issued a permit to practice land surveying under s. 443.06 even if the recorded survey is determined, after the harvesting, to be in error.
2. A court shall award damages that are equal to 2 times the stumpage value of the raw forest products harvested if a recorded survey was not relied upon as specified in subd. I. but the person harvesting the raw forest products took reasonable precautions in identifying harvesting boundaries.
3.A court shall award damages that are equal to 4 times the stumpage value or 2 times the fair market value of the raw forest products harvested, whichever is greater, if a recorded survey was not relied upon as specified in subd. 1. and the person harvesting the raw forest products did not take reasonable precautions in identifying the harvesting boundaries.
(c) In addition to the award under par. (b), a court shall award the owner of raw forest products that were harvested without the consent of the owner, any economic damages resulting from that harvest.
(d) A court shall award other reasonable and necessary costs, which may include costs for any of the following:
1. Repair of damage to, or cleanup on, the land from which the raw forest products were harvested.
2. Removal of slash from agricultural land, waterways, highways, private roads, trails or other sites where the slash would interfere with reforesting or replanting.
3. Determining the fair market value, the stumpage value or the volume of the raw forest products that were harvested.
4. Determining the location of property boundaries necessary for determining whether a violation occurred.
5. Preparing forest management or reforestation plans.
6. Reforesting.
7. Replanting by direct seeding or by use of seedlings.

¶ 8. Bill's argues that the amended Wis. Stat. § 26.09 (1999-2000) can apply to its action because the statute is remedial in nature. We disagree. We conclude that the amendment constitutes a substantive change to § 26.09 (1997-1998), and therefore the amended statute cannot apply retroactively.

¶ 9. Here, the injury occurred and Bill's initiated its claims before the amended statute became effective. Generally, statutes are applied prospectively. Snopek v. Lakeland Med. Ctr., 223 Wis. 2d 288, 293, 588 N.W.2d 19 (1999). However, there are two well-defined exceptions to this rule. A statute may be applied retroactively if, by the express language or by necessary implication, the statutory language reveals the legislative intent that it apply retroactively. Schulz v. Ystad, 155 Wis. 2d 574, 597, 456 N.W.2d 312 (1990). Nothing in Wis. Stat. § 26.09 (1999-2000), however, expresses or implies a legislative intent for it to apply retroactively.

¶ 10. We also give retroactive application to statutes that are procedural or remedial in nature, rather than substantive. Modica v. Verhulist, 195 Wis. 2d 633, 643, 536 N.W.2d 466 (Ct. App. 1995). "If a statute simply prescribed the method — the "legal machinery"— used in enforcing a right or remedy, it is procedural. If, however, the law creates, defines or regulates rights or obligations, it is substantive — a change in the substantive law of the state." City of Madison v. Town of Madison, 127 Wis. 2d 96, 102, 377 N.W.2d 221 (Ct. App. 1985) (citation omitted).

¶ 11. Contrary to Bill's assertion that Wis. Stat. § 26.09 (1999-2000) is a remedial statute, we agree with the trial court that the changes are substantive. Wisconsin Stat. § 26.09(2) (1999-2000) reiterates the universal right to sue for timber trespass available in the former statute. However, Wis. Stat. § 26.09(3) (1999-2000) provides a new range of damages available with a new element of fault accompanying each level of damages. This escalating liability for greater culpability builds on the general right to sue for timber trespass and defines new rights, defenses and obligations under the statute. We therefore conclude that the amended statute is substantively different. See City of Madison, 127 Wis. 2d at 101-02.

¶ 12. As alluded to, a comparison of the former and current Wis. Stat. § 26.09 reveals that, among other things, the amended statute provides for new damages. Wisconsin Stat. § 26.09 (1999-2000) provides not only for double damages, as the old statute did, but in certain circumstances also provides for triple and quadruple damages. The amended statute carefully details various penalties and damage amounts that may be recovered depending on the actions of the parties. Wis. Stat. § 26.09(3) (1999-2000). An alteration in damages available is a change in substantive rights. Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 WI 83, ¶ 13, 236 Wis. 2d 411, 613 N.W.2d 160. "When the limit of damages that can be recovered is set by statute, the amount that can be recovered is fixed on the date of injury." Id. We conclude, therefore, that the changes to § 26.09 are substantive and only damages available under Wis. Stat. § 26.09 (1997-1998) apply to this case.

B. Exclusive Remedy

¶ 13. Bill's argues that it "is entitled to recover damages for the costs to replace its trees and for the loss of the use and enjoyment of its property." The trial court concluded that the exclusive remedy available to Bill's is an award of damages for "stumpage value" of the trees wrongfully removed. We conclude that nothing in Wis. Stat. § 26.09 (1997-1998) makes damages for "stump-age value" exclusive. Bill's also can pursue its common-law trespass, nuisance and negligence claims. We therefore reverse that portion of the order disregarding the other remedies available to Bill's and effectively dismissing its common-law claims.

¶ 14. Recovery of restoration damages is available for injury to property. Threlfall v. Town of Muscoda, 190 Wis. 2d 121, 133, 527 N.W.2d 367 (Ct. App. 1994). In Threlfall, the town cut down a number of trees on the plaintiffs' land. Id. at 125. The plaintiffs argued that the value they lost was not merely that of the cut trees, but the value of the aesthetic enjoyment of their property. Id. at 134. The court concluded that restoration damages, or replacement costs, were recoverable. Id. at 133. It expressed the policy that "[b]ecause recovery in trespass is based on a wrongful invasion of a plaintiffs rights, the rule of damages adopted should more carefully guard against failure to compensate the injured party than against possible overcharge to the wrongdoer." Id.

¶ 15. Also, the court in Threlfall adopted the Restatement (Second) of Torts § 929, at 544 (1977), which provides in pertinent part:

(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at (the landowners) election in appropriate case, the cost of restoration that has been or may be reasonably incurred

Threlfall, 190 Wis. 2d at 135-36 (emphasis added). The statutory damages available under Wis. Stat. § 26.09 (1997-1998) are thus not exclusive. In addition to its action under that statute, Bill's is free to pursue common-law claims against the defendants and attempt to recover restoration damages for its lost trees.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions. No costs to either party.

       The trial court order also allowed Bill's to proceed with its claim for recovery of survey expenses. Neither party appeals that part of the order, and we therefore affirm it.
      We use the term "restoration" to mean the cost to replace and replant the trees.

       Wisconsin Stat. § 26.09 (1997-1998) provided:
      In addition to the other penalties and costs, any person unlawfully cutting, removing or transporting raw forest products is liable to the owner or to the county holding a tax certificate, or to the board of commissioners of public lands holding a land contract certificate under ch. 24, to the land on which the unlawful cutting was done or from which it was removed, in a civil action, for double the amount of damages suffered. This section does not apply to the cutting, removal and transporting of timber for the emergency repair of a highway, fire lane or bridge upon or adjacent to the land.

       The statute defines reasonable precautions in Wis. Stat. § 26.09(5) (1999-2000).

       We do not apply remedial or procedural statutes if the retroactive application would impair contracts or disturb vested rights. Modica v. Verhulist, 195 Wis. 2d 633, 643, 536 N.W.2d 466 (Ct. App. 1995). Because the amendments to Wis. Stat. § 26.09 are substantive, the exception does not apply to this case.

       In order to be awarded restoration damages, an injured party must present evidence of "a personal reason to restore the land to its former condition" and show that restoration is "practicable." Threlfall v. Town of Muscoda, 190 Wis. 2d at 121, 136 n.11, 527 N.W.2d 367 (Ct. App. 1994).


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jerry L. Parker, Defendant-Appellant.

    Court of Appeals

      No. 01-2721-CR.

      Submitted on briefs April 12, 2002.

    Decided May 8, 2002.

    2002 WI App 159
    (Also reported in 647 N.W.2d 430.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher W. Rose of Rose & Rose, Kenosha.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, EJ., Brown and Snyder, JJ.

       Petition to review denied 7-26-02.

   SNYDER, J.

¶ 1. Jerry L. Parker appeals his judgment of conviction and a trial court order denying postconviction relief. Parker, citing State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), argues that the trial court erred when it denied his request for a new trial after potentially exculpatory evidence, an audiotape of an alleged drug buy, was destroyed. We reject Parker's arguments, concluding that the principles of Perry, a missing transcript case, are inapplicable here. We therefore affirm the judgment of conviction and the order denying postconviction relief.

FACTS

¶ 2. Parker was convicted of delivery of marijuana after a November 22, 1999 jury trial and on July 13, 2000, was sentenced to fifty-four months in prison. On July 19, 2000, Parker filed a notice of intent to pursue postconviction relief.

¶ 3. On May 7, 2001, Parker filed a postconviction motion requesting a new trial. As grounds for this motion, Parker asserted that his appellate counsel had learned that there had been a tape of the alleged drug transaction between Parker and an undercover police detective, Louis Perri, that had not been used at trial. Neither the State nor Parker introduced the tape as evidence at trial, although Parker himself did make a brief reference to it in his own testimony. At trial, the only witnesses other than Parker were Perri and a chemist.

¶ 4. Parker claimed that this tape would have constituted exculpatory evidence because the tape demonstrated that a drug transaction may not have occurred. Appellate counsel contacted the district attorney's office and asked it to forward the tape to him; however, the district attorney's office informed appellate counsel that the tape in question had been destroyed. Parker argued that the destruction of this tape essentially deprived him of his right to appeal and his right to effective assistance of appellate counsel.

¶ 5. A hearing was held on this motion on September 19, 2001. Parker called his trial attorney to testify at this hearing. Trial defense counsel testified that there had been a body wire tape regarding the drug transaction, that the tape had been made available to him prior to trial and that he had listened to the tape with Parker. At the postconviction hearing, Parker's trial defense counsel testified to the contents of the tape:

Q: And after listening to that body wire tape, what, if anything, did you hear on that?
A: As best of my recollection, you could hear a conversation. You could also hear music in the background which blocked out... some of the conversation. So, there was interspersed audible conversation between Mr. Parker and I believe Detective Perry, [sic] and music that I think drowned out some of the — some other parts of the conversation.
Q: But you can hear some of the conversation, is that correct?
A: That's correct.
Q: And what, if any, conversation could you hear?
A: Again, to the best of my recollection, I could hear discussions regarding cocaine. Other than that, that's all I can recall hearing on the tape.
Q: When you say hearing discussions regarding cocaine, what discussions?
A: As best I can remember, I believe had Mr. Parker had the ability to obtain any or not.
Q: All right. Now, did you hear any other discussions other than that on that body wire tape?
A: No.
Q: Did you hear any discussions regarding any other type of drug transaction?
A: No.

¶ 6. The trial court concluded that Perry was inapplicable. Parker's appellate counsel pointedly did not allege ineffective assistance of counsel, according to the trial court, which further determined that Parker's trial defense counsel had made a purposeful decision, with Parker's consent, not to introduce the tape into evidence. On September 21, 2001, the trial court denied Parker's request for a new trial. Parker appeals.

DISCUSSION

¶ 7. Parker argues that the trial court erred in denying his request for a new trial when the evidence destroyed, here the audiotape of the alleged drug buy, contained potentially exculpatory evidence. Parker argues that the destruction of this evidence denies him his due process right to a meaningful appeal and to the effective assistance of appellate counsel.

¶ 8. Neither party provides this court with a standard of review to evaluate the trial court's decision on Parker's motion for a new trial; however, Parker's arguments are grounded in constitutional principles. The application of constitutional principles to the facts is a question of law that we decide de novo without deference to the trial court's decision. State v. Fields, 2000 WI App 218, ¶ 9, 239 Wis. 2d 38, 619 N.W.2d 279.

¶ 9. Parker argues that the holding of Perry requires a new trial here. Perry addressed the denial of a defendant's right to appeal and his or her consequent entitlement to a new trial when a significant portion of the trial transcript is missing. Perry, 136 Wis. 2d at 94, 99. Pursuant to Perry, a missing transcript that cannot be re-created entitles the defendant to a new trial if the defendant demonstrates a "colorable need" for the transcript. Id. at 108.

¶ 10. The Perry court emphasized the importance of transcripts, citing to Wis. Stat. Rule 809.16(5), which provides sanctions for failure to file a timely transcript, and Supreme Court Rule 71.01, which mandates that all testimony in all courts of record be recorded verbatim. Perry, 136 Wis. 2d at 98-99. An accurate and complete transcript of a criminal case ensures a meaningful right to appeal and the failure to provide such a transcript can "preventD a putative appellant from demonstrating possible error," thereby depriving him or her of the constitutional right to appeal. Id. at 99.

¶ 11. Parker's reliance on Perry is misplaced. Perry's concern is the protection of a defendant's right to a meaningful appeal by assuring a defendant's access to a full and complete transcript of the trial. Id. Here, however, we address the destruction of an audiotape that was provided to the defendant prior to but never utilized at trial. The import of such a tape and the import of a trial transcript cannot be equated.

¶ 12. Providing a defendant a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. State v. Raflik, 2001 WI 129, ¶ 31, 248 Wis. 2d 593, 636 N.W.2d 690. But again, the tape here was never made a part of the trial court record by Parker or the State. In deciding whether an error warrants a new trial, we are limited to the record of the proceedings in the trial court and the appellate record cannot be enlarged by materials which were not made part of the record in the trial court. Verex Assurance, Inc. v. AABREC, Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989). Perry has never been extended to cover the destruction of or absence of items not a part of the trial court proceedings.

¶ 13. That said, the parties have not cited to, nor have we located, any case law addressing the posttrial destruction of evidence. There is a long line of cases addressing the pretrial destruction of evidence and a defendant's due process rights. We see no reason why this line of cases should not apply to the situation at hand.

¶ 14. A defendant's due process rights are violated by the destruction of evidence (1) if the evidence destroyed was apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. State v. Noble, 2001 WI App 145, ¶ 17, 246 Wis. 2d 533, 629 N.W.2d 317, rev'd on other grounds, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38 (Wis. June 21, 2002) (No. 99-3271-CR).

¶ 15. Neither condition is present here. The tape can hardly be said to be "apparently exculpatory." Both Parker and his trial defense counsel reviewed the tape and declined to introduce it as evidence. The inescapable conclusion is that the tape was not "apparently exculpatory." A defendant may not sit back while evidence is available and then argue for a new trial on the grounds that evidence is no longer available to him or her. See State v. Holt, 128 Wis. 2d 110, 134, 382 N.W.2d 679 (Ct. App. 1985).

¶ 16. Furthermore, according to trial defense counsel's recollection, the contents of the tape were consistent with the testimony presented at trial. Perri testified that he initially attempted to buy cocaine from Parker but that Parker could not obtain any cocaine. Parker himself testified at trial that Perri attempted to purchase cocaine from him but he was not able to obtain any to sell to him. Parker also testified that during his encounter with Perri, they were listening to music. At the postconviction hearing, trial defense counsel testified that much of the conversation was drowned out by music. He further testified that he heard discussions about cocaine and whether Parker had the ability to obtain any.

¶ 17. In addition, the tape was not "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Noble, 2001 WI App 145 at ¶ 17. Both Parker and trial defense counsel testified as to the tape's contents. Between Parker and trial defense counsel, with the recollection of law enforcement who listened to the tape as well, the contents of the tape could be effectively reconstructed.

¶ 18. Neither is the second alternative present here: potentially exculpatory value accompanied by bad faith by the government. Id. Assuming without deciding that the tape was in fact potentially exculpatory, there is not even a hint of bad faith by the State. Parker has not suggested, let alone established via evidentiary proof, that the tape was destroyed in bad faith. Put simply, the destruction of this audiotape does not warrant a new trial.

CONCLUSION

¶ 19. The principles of Perry do not apply to an audiotape provided to defense prior to trial, never presented as evidence during trial and destroyed post-trial. Utilizing the standards for a new trial based on the pretrial destruction of evidence, the tape was not apparently exculpatory nor of such a nature that Parker would be unable to obtain comparable evidence by other reasonable means. Even assuming the tape was potentially exculpatory, there is no allegation or evidence that the tape was destroyed in bad faith. We therefore affirm the judgment of conviction and order denying Parker's motion for a new trial.

By the Court. — Judgment and order affirmed.


author: VERGERONT, PJ.

text:
    Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO, Petitioners-Respondents, v. Board of the Police and Fire Commissioners of the City of Madison, Wisconsin, and Fire Chief Debra Amesqua, Respondents-Appellants.
    Court of Appeals

      No. 01-0784.

      Submitted on briefs December 7, 2001.

    Decided May 9, 2002.

    2002 WI App 135
    (Also reported in 647 N.W.2d 291.)

      On behalf of the respondent-appellant, Board of the Police and Fire Commissioners of the City of Madison, the cause was submitted on the briefs of Scott Herrick of Herrick, Kasdorfi Dymzarov & Twietmeyer, Madison.
    On behalf of the respondent-appellant, Fire Chief Debra Amesqua, the cause was submitted on the briefs of Eunice Gibson, city attorney, and Carolyn S. Hogg, assistant city attorney of Madison.
    On behalf of the petitioners-respondents, the cause was submitted on the briefs of Aaron N. Halstead of Shneidman, Hawks & Ehlke, S.C., Madison.
    A nonparty brief was filed by Daniel M. Olson of League of Wisconsin Municipalities of Madison, for League of Wisconsin Municipalities.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.

       Petition to review granted 9-26-02.

   VERGERONT, PJ.

¶ 1. The Board of the Police and Fire Commissioners of the City of Madison and Fire Chief Debra Amesqua appeal the judgment of the circuit court declaring that the board's Rule 7.20 is void because it exceeded the board's authority under Wis. Stat. § 62.13(5) (1999-2000). Rule 7.20 permits hearing examiners, who are not necessarily members of the board, to conduct initial and evidentiary hearings in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter. The board contends that the circuit court erred in its interpretation of the board's authority under § 62.13(5). We agree. We conclude that the board has the authority under § 62.13(5)(g) to adopt a rule permitting a hearing examiner to carry out the tasks delineated in Rule 7.20, including conducting initial and evidentiary hearings and making a report to the board on the examiner's recommendations. Accordingly, we conclude Rule 7.20 is not void, and we reverse the judgment of the circuit court.

BACKGROUND

¶ 2. Wisconsin Stat. § 62.13(1) and (2)(a) require cities with a population over 4,000 to establish a board of police and fire commissioners. Section 62.13(5) specifies the procedures that must be followed in disciplinary actions against subordinates of the chief of police and chief of the fire department, and provides in relevant part:

(5) Disciplinary actions against subordinates, (a) A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.
(b) Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.
(c) A subordinate may be suspended for just cause, as described in par. (em), by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.
(d) Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set [the] date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885.
(e) If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.
(em) No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable ... ,
(f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.
(g) Further rules for the administration of this subsection may be made by the board.

(Footnote added.)

¶ 3. The rule at issue in this case, Madison Police and Fire Commissioners Rule 7.20, provides:

7.20 Hearing Examiner
a. The Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing eviden-tiary hearings.
b. The Hearing Examiner shall conduct and preside at proceedings in conformity with these rules and in consultation with Board counsel. References to the Board in this rule shall be construed to refer to a Hearing Examiner as context requires.
c. All evidentiary proceedings conducted by a Hearing Examiners [sic] shall be videotaped and a certified transcript shall be prepared.
d. Promptly following completion of the evidentiary proceedings and receipt of briefs, the Hearing Examiner shall forward the complete record to the Board and shall prepare a comprehensive report including an evaluation of witness credibility and demeanor for review by the Board and including the recommendations of the Hearing Examiner regarding disposition of the charges. The report of the Hearing Examiner shall be included in the record of Board proceedings.
e. Promptly following receipt of the Hearing Examiner's report the Board shall convene for deliberations. The Board may require further proceeding before the Hearing Examiner or before the Board. Following the close of any such further proceedings and deliberations the Board shall issue its decision in the matter.

¶ 4. Lieutenant Joseph Conway, Jr., an employee of the Madison Fire Department and President of the International Association of Firefighters Local 311, and Local 311 filed this action seeking a declaratory judgment that Rule 7.20 is void. Conway alleged that Wis. Stat. § 62.13 does not authorize the use of hearing examiners in a city with a population of more than 4,000 persons. He moved for judgment on the pleadings.

¶ 5. The circuit court agreed with Conway. It concluded that Rule 7.20 is void because Wis. Stat. § 62.13(5) did not authorize the board to delegate to a hearing examiner or any other person who is not a member of the board the responsibility for conducting the initial hearing and the continued evidentiary hearing in a case involving the suspension, reduction in rank, or removal of a subordinate officer. The court reasoned that the statute did not specifically authorize this, and the board could not cite to any agencies that utilize hearing examiners when there is no specific statutory authorization. The court also considered it relevant that in § 62.13(6m) the legislature provided for the use of a hearing examiner in the case of a city with a population of less than 4,000. From this, the circuit court assumed that when the legislature intended to allow for the use of a hearing examiner, it specifically so stated.

¶ 6. On appeal the board argues that the circuit court erred by construing Wis. Stat. § 62.13 too narrowly and by concluding that the provision for hearing examiners in cities of less than 4,000 indicated that the legislature did not intend to allow their use for any tasks in larger cities. Conway responds that the circuit court's decision is correct because § 62.13 neither expressly nor implicitly authorizes the board to adopt a rule providing any role for hearing examiners.

DISCUSSION

¶ 7. An administrative agency has only those powers that are expressly conferred or necessarily implied from the statutory provisions under which it operates. Grafft v. DNR, 2000 WI App. 187, ¶ 6, 238 Wis. 2d 750, 618 N.W.2d 897, review denied, 2001 WI 1, 239 Wis. 2d 774, 621 N.W.2d 630 (Wis. Dec. 12, 2000) (No. 00-0020). In determining whether an agency has exceeded its statutory authority in promulgating a rule, we examine the statute that authorizes the agency to promulgate rules. Seider v. O'Connell, 2000 WI 76, ¶ 70, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 8. As we do in construing all statutes, we look first to the statute's plain language. Grafft, 2000 WI App 187 at ¶ 5. If the language is clear and unambiguous on its face, we apply that language to the facts at hand. Id. In doing so, we consider the sections of the statute in relationship to the whole statute and to related sections. See Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct. App. 1993). We generally construe words and phrases according to common and approved usage, Wis. Stat. § 990.01(1), and we may consult a dictionary for this purpose. State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998). Relying on a dictionary to establish the common meaning or words does not mean the statute is ambiguous. Id.

¶ 9. When construing a statute involving the scope of an agency's power, we interpret the statute de novo, giving no deference to the agency's opinion. Grafft, 2000 WI App 187 at ¶ 4.

¶ 10. The first step in deciding whether an agency's rule was promulgated by express authorization from the legislature is to "identify the elements of the enabling statute and match the rule against those elements." Wisconsin Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990). If a rule matches the statutory elements, then the statute expressly authorizes the rule. Id. The enabling statute need not spell out every detail of a rule in order to expressly authorize it; if it did, no rule would be necessary. Id. at 705-06. Accordingly, whether the exact words used in an administrative rule appear in the statute is not the proper question. Id. at 706.

¶ 11. Turning to Wxs. Stat. § 62.13(5), we begin by observing that the legislature has provided an express statement of its purpose in enacting Wis. Stat. §§ 62.01 through 62.26. Section 62.04 provides in part:

For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof.

(Emphasis added.) We bear this general purpose in mind as we consider the enabling statute, § 62.13(5)(g), which authorizes the board to make rules for the administration of subsec. (5).

¶ 12. The duties specifically vested in the board under Wis. Stat. § 62.13(5) regarding hearings are the following: (1) providing for a public hearing, in which both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses, § 62.13(5)(d); (2) determining whether there is just cause to sustain the charges applying the standards of § 62.13(5)(em)l-7; (3) determining the appropriate disposition, § 62.13(5)(e); and (4) reducing to writing the findings and determinations and orders of suspension, reduction, or removal, § 62.13(5)(f). After specifying these and other duties of the board, the legislature provided that "[flurther rules for the administration of this subsection may be made by the board." Section 62.13(5)(g). The dictionary definition of administration is: "5 a: the principles, practices, and rationalized techniques employed in achieving the objectives or aims of an organization." Webster's Third New International Dictionary 28 (unabr. 1993).

¶ 13. We conclude Rule 7.20 plainly comes within the board's express authority to promulgate rules to administer Wis. Stat. § 62.13(5). Rule 7.20 provides practices and rational techniques employed to aid the board in fulfilling the objective of providing public hearings as required by § 62.13(5). The rule assists the board in carrying out its duties under § 62.13(5)(d), (e), (em), and (f). Rule 7.20 does not, as Conway appears to contend, delegate to the hearing examiner the duty to make the "just cause" determination or the appropriate disposition. Under Rule 7.20 the hearing examiner is required to provide to the board a comprehensive report, including an evaluation of witness credibility and demeanor, and recommendations for disposition of the matter. In addition, the hearing must be videotaped and a certified transcript prepared. The board may require further proceedings before either the hearing examiner or the board itself. Under the rule the board, not the hearing examiner, makes the final decision and the disposition.

¶ 14. Conway points out that under Rule 7.20 a hearing examiner may consider procedural motions, the parameters of discovery, and may even dismiss the complaint at the initial hearing. However, the hearing examiner is able to dismiss a complaint against the officer only if the complainant fails to appear at the initial hearing. Madison Police & Fire Comm'rs Rule 7.08(h). Conway does not explain why the board may not delegate these tasks to a hearing examiner if it determines this will aid the hoard in more efficiently carrying out its duties. If Conway is suggesting that delegation of these tasks renders the proceedings unfair, he has not explained why. We observe that in administrative proceedings due process does not require that evidence be taken before the officer who ultimately decides the matter. Tecumseh Prods. Co v. Wisconsin Employment Relations Bd., 23 Wis. 2d 118, 126, 126 N.W.2d 520 (1964).

¶ 15. The supreme court has previously observed that the ability of administrative agencies should not be unnecessarily restricted by the courts:

In resolving this issue!, the effect of the absence of a member of a municipal board from a hearing,] we consider the absence of a member of an administrative agency (while acting in a quasi-judicial capacity), from a portion of a hearing stands in a different category than the absence of a juror from the courtroom during a portion of the trial. In the latter case of course the verdict would be void. Courts should be careful not to lay down such stringent rules with respect to administrative agencies as to hamstring their efficient operation. This court in Wright v. Industrial Comm. (1960), 10 Wis. (2d) 653, 103 N. W (2d) 531, held there was no denial of due process where two different examiners in a workmen's compensation case separately conducted hearings and then both joined in the findings and order. Inherent in this determination was the assumption that each examiner was in some manner adequately informed of the nature of the material testimony given at the hearing conducted by the other examiner.

State ex rel. Cities Serv. Oil Co. v. Board of Appeals, 21 Wis. 2d 516, 540-41, 124 N.W.2d 809 (1963) (reviewing whether a hearing before the zoning board of appeals under Wis. Stat. § 62.23(7)(e) (1959) was void because of a commissioner's absence). Bearing in mind that a hearing under Rule 7.20 is videotaped, a transcript is prepared, and the board receives only a report from the hearing examiner, we see no reason to "hamstring [the board's] efficient operation" by declaring Rule 7.20 void. Instead, we conclude the rule falls squarely within the board's administration of its duties under Wis. Stat. § 62.13(5) and the legislature's express authorization that the board may make rules for that purpose.

¶ 16. Conway refers us to other statutes in which the legislature has expressly allowed administrative agencies to delegate the task of hearing contested cases to persons other than the agency: Wis. Stat. § 111.07(5) (relating to unfair labor practices and Wisconsin Employment Relations Commission (WERC)), Wis. Stat. § 111.70(4)(a) (relating to bargaining in municipal employment and WERC), and Wis. Stat. § 111.39(4)(a) (relating to fair employment and the Department of Workforce Development). In addition, Conway cites to Wis. Stat. § 227.46(1), which provides that state agencies, unless otherwise specifically restricted by statute, "may designate an official of the agency or an employee on its staff or borrowed from another agency... as a hearing examiner to preside over any contested case." Conway argues that taken together, these statutes demonstrate that when the legislature intends to allow an agency to delegate tasks to hearing examiners, the legislature expressly so states.

¶ 17. We do not consider these statutes to be helpful or persuasive in construing Wis. Stat. § 62.13(5). Wisconsin Stat. §§ 111.07(5) and 111.70 (4) (a) allow for the hearing examiner to make the findings and order, and Wis. Stat. § 111.39(4)(a) allows the hearing examiner to hear and decide the complaint. As discussed in ¶ 13, Rule 7.20 does not purport to delegate to the hearing examiner the authority to make the determination and disposition required under § 62.13(5). In addition, the board is not an agency of the state government controlled by Wis. Stat. ch. 227. Wis. Stat. § 227.01 (defining agency as "a board, commission, committee, department or officer in the state government...."). Instead, Wis. Stat. ch. 62 governs the board's authority to act, and that authority is to be liberally construed. Wxs. Stat. § 62.04.

¶ 18. Conway, as did the circuit court, considers the express provision in Wis. Stat. § 62.13 (6m) for the use of hearing examiners in cities with a population of less than 4,000 to support his position. Conway relies on the rule of statutory construction that the omission of a provision that is included in a similar statute on a related subject shows the legislature had a different intent. State v. Deborah J.Z., 228 Wis. 2d 468, 475-76, 596 N.W.2d 490 (Ct. App. 1999). Applying this rule, Conway argues that the legislature did not intend to allow cities over 4,000 to use hearing examiners. This argument overlooks the difference between the authority of hearing examiners under § 62.13(6m) and under Rule 7.20.

¶ 19. Wisconsin Stat. § 62.13(6m) provides:

(6m) If a city of less than 4,000 population has not by ordinance applied subs. (1) to (6) to the city, the city may not suspend, reduce, suspend and reduce, or remove any police chief or other law enforcement officer who is not probationary, and for whom there is no valid and enforceable contract of employment or collective bargaining agreement which provides for a fair review prior to that suspension, reduction, suspension and reduction or removal, unless the city does one of the following:
(a) Establishes a committee of not less than 3 members, none of whom may be an elected or appointed official of the city or be employed by the city. The committee shall act under sub. (5) in place of the board of police and fire commissioners. The city council may provide for some payment to each member for the member's cost of serving on the committee at a rate established by the city council.
(b) Appoint a person who is not an elected or appointed official of the city and who is not employed by the city. The person shall act under sub. (5) in place of the board. The city council may provide for some payment to that person for serving under this paragraph at a rate established by the city council.

¶ 20. Wisconsin Stat. § 62.13(6m) establishes two alternative ways to conduct hearings in cities that are not required to establish a board of police and fire commissioners — a committee or a hearing examiner. Either acts entirely in place of the board under subsec. (5) in all respects. Thus, for example, a hearing examiner under subsec. (6m) has the duty that a board has under subsec. (5) to make the "just cause" determination and the appropriate disposition. It may be reasonable to infer from subsec. (6m) that the legislature did not intend that in cities with a board, a hearing examiner could assume all the board's responsibilities under subsec. (5). However, this subsection does not indicate that the legislature did not intend to permit the board to delegate to a hearing examiner under its rule-making authority the tasks the board has identified in Rule 7.20.

¶ 21. Finally, Conway argues that special qualifications for board appointment prohibit delegation of any of the board's functions to a hearing examiner. The board is composed of an impartial body that operates independently of the city itself. Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423 (Ct. App. 1999), aff'd, 2000 WI 57, 235 Wis. 2d 385, 611 N.W.2d 744. The board is comprised of citizen members who have no direct interest in the outcome of the case, as would a party to the dispute, and member appointment is designed to prevent the board from operating as an agent of a city official or police or fire chief. Id. Conway does not explain how the use of a hearing examiner appointed by the board under Rule 7.20 circumvents or diminishes the independent nature of the board. Accordingly, we do not consider this argument further.

¶ 22. We conclude the use of a hearing examiner as delineated in Rule 7.20 is a valid exercise of the board's rule-making authority under Wis. Stat. § 62.13(5)(g). Rule 7.20 provides a rational and efficient means of carrying out the board's duties under § 62.13(5) and does not delegate to the hearing examiner the specific duties vested in the board under that section.

By the Court — Judgment reversed.

       We will refer to the Board of the Police and Fire Commissioners and the fire chief collectively as the "board."

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

       In addition to the parties' briefs, the League of Wisconsin Municipalities submitted an amicus curiae brief seeking to reverse the decision of the circuit court.

       The board appoints the chief of police and the chief of the fire department, Wis. Stat. § 62.13(3); the chiefs appoint their subordinates subject to the board's approval, § 62.13(4).

       The standards that are to be applied under Wis. Stat. § 62.13(5) (em) are:
      1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
      2. Whether the rule or order that the subordinate allegedly violated is reasonable.
      3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
      4. Whether the effort described under subd. 3. was fair and objective.
      5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
      6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
      7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chiefs department.

       Rule 7.08 provides for the initial hearing:
      7.08 Initial Hearing The Initial Hearing and all subsequent hearings on the Charges shall be public. No witnesses need appear at the Initial Hearing. The following will take place at the Initial Hearing:
      a. The Board shall receive the report of any preliminary investigation.
      b. The Board shall receive and act on requests of the parties regarding representation by lay advocate.
      c. Procedural motions by the parties as to the improper completion of the form and other procedural matters may be made and shall be considered by the Board.
      d. If not filed earlier, Respondent shall file with the Board a written answer to the complaint which either shall be signed and verified by the Respondent in the same manner that a complaint is to be verified, or alternatively may be signed by legal counsel appearing for the Respondent. The Board may compare the Complaint and the Answer and attempt to obtain stipulations as to matters about which the parties agree. Matters which are stipulated to need not be proven by the parties at the hearing.
      e. Complainant shall provide Respondent with a fist of witnesses intended in good faith to be called to prove the allegations of the Complaint, and with a copy of documentary and physical exhibits intended in good faith to be introduced, and the Board will schedule similar disclosure by Respondent. Witnesses called merely to rebut the testimony of another witness need not be disclosed in advance. Parties shall be allowed to call witnesses whose names are not included on either list and to introduce exhibits not disclosed only for good cause shown. Non-disclosed exhibits and witnesses discovered and proposed after disclosure shall be provided to the opposing party within a reasonable time frame. Neither party shall be required to call all of their respective disclosed witnesses nor to introduce all of their respective disclosed exhibits, and either party may call any witness and introduce any exhibit disclosed by the other.

        f. Each party shall propose the form, general scope, and schedule for discovery, if any. The Board shall approve and order discovery, if any. All discovery shall he completed as provided by the Board's order.
      g. Dates for the adjourned evidentiary hearing will be set.
      h. If the Complainant does not appear at the Initial Hearing or at any other scheduled hearing, the Board may dismiss the complaint, either with or without prejudice, that is, with or without the right to re-file the complaint.

       We will refer to Conway and Local 311 as "Conway."

       The parties do not dispute that the board is to be treated as an administrative agency and as such has only those powers that are expressly conferred by statute or necessarily implied.

       Conway also argues that the hearing must be before the board, not a hearing examiner, because under Wis. Stat. § 62.13(5) (c), a subordinate suspended by the chief may "request[] a hearing before the board." This paragraph, when read as a whole, describes the procedures to be followed when a chief suspends a subordinate. It is not reasonable to read this paragraph to limit the authority expressly granted to the board in § 62.13(5)(g).

       WISCONSIN Stat. § 62.13(2)(a) provides that, except as provided in subsec. (6m), § 62.13(l)-(6) does not apply to cities of less than 4,000 population except by ordinance adopted by a majority of all the members of the council.


author: DEININGER, J.

text:
    League of Wisconsin Municipalities, Plaintiff, 1000 Friends of Wisconsin, Municipal Environmental Group, Citizens For A Better Environment, River Alliance of Wisconsin, Inc., and Town of Caledonia, Plaintiffs-Appellants, v. Wisconsin Department of Commerce, Defendant-Respondent, Wisconsin Builders Association, Wisconsin Realtors Association, Lee Realty of Sheboygan, Inc., Wisconsin On-Site Waste Disposal Association, Dane County Towns Association, Town of Washington, Dean Blegen, Del Weiff and Wisconsin Farm Bureau, Intervenors-Defendants-Respondents.
    Court of Appeals

      No. 01-1035.

      Submitted on briefs December 7, 2001.

    Decided May 9, 2002.

    2002 WI App 137
    (Also reported in 647 N.W.2d 301.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Richard L. Bolton of Board-man, Suhr, Curry & Field, LLP and Paul G. Kent of Davis & Kuelthau, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Frank D. Remington, assistant attorney general, Robert A. Selk, assistant attorney general, Thomas C. Bellavia, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the intervenors-defendants-respondents, the cause was submitted on the brief of Douglas B. Clark of Foley & Lardner, Madison.

      Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 9-26-02.

   DEININGER, J.

¶ 1. 1000 Friends of Wisconsin, three other environmental organizations and a township appeal a circuit court order denying their request for a judgment declaring Wis. Admin. Code ch. Comm 83 ("Private Onsite Wastewater Treatment Systems") invalid. The Department of Commerce and several inter-venors respond to defend the validity of the regulations. The Friends make three claims: (1) that ch. Comm 83 does not comply with a statutory mandate to incorporate groundwater protection standards; (2) that § Comm 83.24 exceeds the department's authority to grant variances; and (3) that the department's authority to exempt private systems from meeting nitrate standards was improperly delegated and exercised. We reject the Friends' assertions and affirm.

BACKGROUND

¶ 2. The Friends brought this action to obtain a declaratory judgment invalidating Wis. Admin. Code ch. Comm 83. See Wis. Stat. § 227.40(1) (1999-2000). The department comprehensively revised ch. Comm 83, which regulates "private onsite wastewater treatment systems," effective July 1, 2000. Under § 227.40(4)(a), "the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." The Friends' challenge encompasses the first two grounds for setting aside a rule, violations of the constitution and statutes, but not the third, procedural ground. Accordingly, we will not describe the department's process in promulgating the revised ch. Comm 83 beyond noting that it spanned several years, involved numerous drafts and public hearings, and spawned an extensive administrative record.

¶ 3. "No agency may promulgate a rule which conflicts with state law." Wis. Stat. § 227.10(2). The principal dispute in this appeal is whether the revised rule complies with the statutory requirement that all applicable state regulations ensure compliance with Wisconsin's groundwater protection standards, as established by the Department of Natural Resources (DNR) under Wis. Stat. ch. 160:

The legislature intends, by the creation of this chapter, to minimize the concentration of polluting substances in groundwater through the use of numerical standards in all groundwater regulatory programs. The numerical standards, upon adoption, will become criteria for the protection of public health and welfare, to be achieved in groundwater regulatory programs concerning the substances for which standards are adopted. To this end, the legislature intends that:
(4) In order to comply with this chapter, a regulatory agency is not required to adopt a particular type of regulation; regulatory agencies are free to establish any type of regulation which assures that regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application. A regulatory agency may adopt regulations which establish specific design and management criteria for regulated facilities and activities, if the regulations will ensure that the regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application.

Section 160.001 (emphasis added). The DNR has established the numerical standards authorized by ch. 160 in Wis. Admin. Code ch. NR 140.

¶ 4. While it is the DNR that establishes numerical standards for the protection of groundwater under Wis. Stat. ch. 160, the legislature has delegated to the Department of Commerce the authority to supervise the "construction, installation and maintenance of plumbing" in order to "safeguard the public health arid the waters of the state." Wis. Stat. § 145.02(1). The plumbing code, of which Wis. Admin. Code ch. Comm 83 is a part, must "comply with ch. 160." Wis. Stat. § 145.13. In its "Record of Decision," the department found, among other things, the following:

6. The current Chapter Comm 83, Wis. Adm. Code, and related rules have not been fully revised since 1980.
7. The Department is required by Section 160.19, Wis. Stats., to review its rules for compliance with the groundwater protection standards promulgated in Chapter NR 140, Wis. Adm. Code.
11. The Department finds that properly functioning [private systems] as approved under the current rule are not a risk to public health. The proposed rule will require equal or better treatment. of domestic wastewater as the current rule.
12. Failing [private systems] may pose a risk of contamination of groundwater and surface waters and may create surface ponding conditions that are a risk to public health. Compared to the current rule, the proposed rule provides additional measures for maintenance and enforcement to minimize failures.
13. The proposed rule contains a range of responses the Department may undertake if exceedences of groundwater standards are found. Any type of [private system] may have incidental exceedences of groundwater standards. These are not expected to result in significant adverse impacts to groundwater quality.

¶ 5. In the "Discussion" section of its "Final Decision," the department said that the proposed rule "requires technologies to satisfy" the DNR's groundwater standards. The department noted further that the former rule "lacks reference to the groundwater standards of Chapter NR 140," and that the proposed rule incorporates the standards. Commenting on its decision to not include "final effluent standards" in the rule, the department said this:

The Department has determined that final effluent quality standards are not needed. They are not required by the groundwater protection law. The proposed rule requires compliance with Chapter NR 140, Wis. Adm. Code, standards ....

In written testimony submitted to the legislative committee reviewing the proposed revision of ch. Comm 83, a DNR representative said that the DNR had concluded "systems designed and installed under proposed Comm 83 would, in most cases, achieve state groundwater standards conformance." He also reported that a revision, agreed to by the department, which increased "the required separation from groundwater or bedrock ... coupled with additional research" had addressed the DNR's concerns regarding the standards for "total coliform" bacteria.

¶ 6. The circuit court concluded in a bench decision that ch. Comm 83, as promulgated by the department, neither exceeded its statutory authority nor violated constitutional provisions. Accordingly, it entered an order denying the Friends' request for a declaratory judgment invalidating the rule, and the Friends appeal. Additional background information, in particular regarding variances and the exemption from nitrate standards, is provided in the analysis which follows.

ANALYSIS

¶ 7. The parties do not dispute that the legislature has empowered the department to promulgate rules regulating the design, installation and maintenance of private wastewater systems. See, e.g., Wis. Stat. §§ 145.02; 145.13; 145.20(3). The Friends characterize the first issue in their appeal as being "whether [Wis. Admin. Code ch.] Comm 83 ensures that the new systems will comply with the numerical groundwater standards under [Wis. Stat.] Chapter 160." The Friends' contention that the rule does not comply with the statute raises a claim that the rule exceeds the department's statutory authority. See Seider v. O'Connell, 2000 WI 76, ¶¶ 24, 28, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 8. Our review is de novo, but in deciding this question of law, we are to derive "benefit" from the experience and analyses of administrative agencies empowered by the legislature to administer the laws it enacts. Id. at ¶¶ 25-27. Here, the record reflects that both the department and the DNR have concluded that ch. Comm 83 conforms to the requirements of ch. 160 regarding state groundwater protection standards. While acknowledging these conclusions, we nonetheless have a duty to independently determine whether the department has complied with legislative mandates. Id. We therefore reject the department's request that we accord its decision to promulgate the rule in its final form the same deference we would apply if the question it had decided were one of fact, or one of law not going to the scope of its authority in promulgating the rule.

¶ 9. We conclude that under the supreme court's guidance in Seider, our task is to determine whether Wis. Admin. Code ch. Comm 83 contradicts "either the language of [Wis. Stat. ch. 160] or legislative intent." Seider, 2000 WI 76 at ¶ 72. If it conflicts with either, ch. Comm 83 "is not reasonable, exceeds the [department]'s statutory authority, and must be invalidated." Id. at ¶ 73. Conversely, if we ascertain no conflict with either the language of Wis. Stat. ch. 160 or the legislature's intent in enacting the chapter, we must conclude that the rule is reasonable, within the department's authority and valid.

¶ 10. Put another way, we will invalidate the department's rule only if we are convinced that it contravenes an unambiguous statutory requirement or a clear expression of legislative intent, and the burden is on the Friends to so convince us. Cf. Citizens Util. Bd. v. PSC, 211 Wis. 2d 537, 552-53, 565 N.W.2d 554 (Ct. App. 1997). They have not. Our role is not to substitute our judgment for the department's in determining how best to implement or comply with the relevant statutes, and to that extent, our review is deferential to the department's rulemaking authority and expertise. (See footnote 4.)

¶ 11. The Friends first argue that Wis. Admin. Code ch. Comm 83 fails to comply with Wis. Stat. ch. 160 because the rule does not "incorporate" numerical groundwater enforcement standards in the design criteria for private wastewater systems. They point out that §§ Comm 83.40 and .41, dealing with system design and installation, refer to goals of" [s] afeguarding public health" and preventing "human health hazard[s]." They also note that the subchapter on design "does not say that a [private system] must be designed in conformance with Chapter 160 groundwater standards." The Friends are particularly critical of § Comm 83.44, which they assert establishes performance standards for the quality of influent going into the soil component of a system, but does not require that the effluent reaching groundwater meet ch. 160 standards.

¶ 12. Wisconsin Admin. Code ch. Comm 83 is also deficient, according to the Friends, because it does not "utilize" Wis. Stat. ch. 160 groundwater standards in "regulating practices and activities" associated with private systems. The Friends acknowledge that the rule prohibits owners of private systems from introducing "wastewater or substances in such quantities or concentrations . . . that results in exceeding the enforcement standards and preventative action limits specified in ch. NR 140 ...." Section Comm 83.32(l)(a). They assert, however, that the rule improperly places "the entire burden on homeowners who may not have the knowledge, financial ability, interest or discipline to maintain these systems." To comply with ch. 160, the Friends contend that the department should have ensured regular maintenance of the systems by requiring government ownership of the systems, prohibiting installation in the absence of a servicing contract, or demanding "reporting on a regular schedule."

¶ 13. The department found in its Record of Decision that: (1) Wis. Admin. Code ch. Comm 83 "requires technologies to satisfy" the groundwater standards; (2) the rule "requires compliance with Chapter NR 140, Wis. Adm. Code, standards," except for nitrates and the preventative action limit for chloride, which are not required; and (3) "data . .. indicate [s] that systems designed and maintained in accordance with the proposed rule will meet the groundwater standards at a well.. . although . . . exceptions may occur." As we have described, the DNR concurred that ch. Comm 83 complies with Wis. Stat. ch. 160, and its representative testified that DNR "supports this rule because," among other things, it represented an improvement over the existing rule in "[g]roundwater standards conformance."

¶ 14. The Friends do not expressly argue that the department (or the DNR) erred as a factual matter in determining that private systems which are designed, installed and maintained in conformity with Wis. Admin. Code ch. Comm 83 requirements will meet Wis. Stat. ch. 160 groundwater protection standards. If they had, our review of this factual determination would be deferential. Cf. Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368, 393, 401 N.W.2d 805 (1987) ("We will not independently weigh the evidence .... Our task is simply to ascertain whether [an agency's rule] is reasonably supported by any facts in the record.") The Friends' challenge thus rests on an assertion that the department should have included more, or more specific, references to the groundwater standards established under ch. 160 in the text of the rule.

¶ 15. We now examine the provisions of Wis. Stat. ch. 160 with which the Friends claim Wis. Admin. Code ch. Comm 83 fails to comply. They point first to § 160.001 (quoted above at ¶ 3), which explains the legislature's intent that the numerical groundwater standards "will become criteria for the protection of public health and welfare, to be achieved in groundwater regulatory programs." Section 160.001. More specifically, under § 160.001(4), any regulations which "establish specific design and management criteria for regulated facilities and activities," must "ensure that the regulated facilities and activities will not cause the concentration of a substance ... to exceed the enforcement standards and preventive action limits under [ch. 160]." Wisconsin Stat. § 160.19(1) requires agencies to review their rules and amend them as necessary "to ensure that the activities, practices and facilities regulated by the regulatory agency will comply with this chapter." Finally, an "agency may not promulgate rules defining design and management practice criteria which permit an enforcement standard to be attained or exceeded at the point of standards application." Section 160.19(3).

¶ 16. All of the cited provisions require regulatory agencies to ensure that their rules result in compliance with the numerical groundwater standards established under ch. 160, but none requires that a rule must expressly incorporate or refer to the standards. We conclude that Wis. Admin. Code ch. Comm 83 does not fail for lack of compliance with the language of Wis. Stat. ch. 160 because we find no requirement that the statutory standards must be incorporated into the text of an agency rule.

¶ 17. Moreover, we note that Wis. Admin. Code ch. Comm 83 does specifically refer to the groundwater standards in several places. The department noted in its Record of Decision that its predecessor rule lacked any reference to the groundwater standards of Wis. Admin. Code ch. NR 140, but that the present ch. Comm 83 expressly incorporates them. For example, § Comm 83.32(1) (a) prohibits "the introduction of wastewater or substances in such quantities or concentrations" to a private system "that results in exceeding the enforcement standards and preventive action limits specified in ch. NR 140 Tables 1 and 2 at a point of standards application." And, under § Comm 83.29, the department's "range of responses" to a groundwater standards exceedence are spelled out:

Pursuant to s. 160.21, Stats., the department may respond with any one or more of the actions, delineated under Table 83.29 if the preventive action limits or enforcement standards enumerated in ch. NR 140 Tables 1 and 2 are exceeded at a point of standards application as a result of the performance of a [private system] ....

Section Comm 83.29(l)(a).

¶ 18. We next consider whether, notwithstanding the lack of a conflict between Wis. Admin. Code ch. Comm 83 and the language of Wis. Stat. ch. 160, the rule nonetheless contravenes legislative intent. Our consideration is brief because one of the sections on which the Friends rely plainly expresses the legislature's intention to grant regulatory agencies considerable latitude in constructing rules that comply with ch. 160:

In order to comply with this chapter, a regulatory agency is not required to adopt a particular type of regulation; regulatory agencies are free to establish any type of regulation which assures that regulated facilities and activities will not cause the concentration of a substance in groundwater affected by the facilities or activities to exceed the enforcement standards and preventive action limits under this chapter at a point of standards application.

Section 160.001(4). This statement of legislative intent reinforces our conclusion that express textual incorporation of or reference to the numerical standards is not a requirement of ch. 160, so long as the rules in question achieve the required results.

¶ 19. The Friends' second challenge focuses on a specific section of the new rule. Their claim is that Wis. Admin. Code § Comm 83.24 conflicts with an express statutory limitation on the department's authority to grant variances. Section Comm 83.24 provides as follows:

Petitions for variance.

(1) The department shall consider and may grant a variance to a provision of this chapter in accordance with ch. Comm 3.
Note: The petition for variance process is to allow the owner of a proposed or existing [private wastewater system] to ask the department's recognition of an alternative method or means for complying with the intent of a specific rule.
(2) (a) Pursuant to s. 145.24, Stats., the department may not approve a petition for variance for an existing [private system] which is determined to be a failing private onsite wastewater treatment system.
(b) For the purposes of this subsection, the department shall consider a petition for variance if the existing [private system] is not considered a failing private onsite wastewater treatment system.

¶ 20. The Friends contend that Wis. Admin. Code § Comm 83.24 "conflicts with the express limitation of § 145.24, Wis. Stats., which authorizes variances only for existing nonfailing" private systems (emphasis added). The statute provides as follows:

145.24 Variances.

(1) If an existing private sewage system either is not located in soil meeting the siting standards or is not constructed in accordance with design standards promulgated under s. 145.02 or 145.13, the owner of the private sewage system may petition the department for a variance to the siting or design standards.
(2) The department shall establish procedures for the review and evaluation of existing private sewage systems which do not comply with siting or design standards.
(3) Upon receipt of a petition for a variance, the department shall require the owner of the private sewage system to submit information necessary to evaluate the request for a variance. If the department determines that the existing private sewage system is not a failing private sewage system, and continued use of the existing private sewage system will not pose a threat of contamination of waters of the state, then the department may issue a variance to allow continued use of the existing private sewage system. The department shall rescind the variance if the existing private sewage system becomes a failing private sewage system or contaminates waters of the state.

According to the Friends, because Wis. Admin. Code § Comm 83.24 purports to allow the department to grant variances for proposed new systems, it violates Wis. Stat. § 145.24 and must be declared invalid. We disagree.

¶ 21. Section 145.24 addresses a specific circumstance — existing systems which do not conform to applicable siting or design standards. The statute limits the department's authority to grant a variance in that circumstance only to an existing system that is not failing. The statute says nothing about the department's authority to grant variances for proposed new systems. Because the statute is silent regarding variances for proposed new systems, the Friends advance an expressio unius argument. We reject it, however, because there is no indication that the legislature intended § 145.24 to be the beginning and the end of the department's authority to grant variances relating to private sewage systems. See Pritchard v. Madison Metro. Sch. Dist., 2001 WI App 62, ¶ 13, 242 Wis. 2d 301, 625 N.W.2d 613, review denied, 2001 WI 88, 246 Wis. 2d 166, 630 N.W.2d 220 (Wis. May 8, 2001) (No. 00-0848) (Court will apply expressio unius rule only where it has "some evidence the legislature intended its application."). Rather, as we discuss below, we conclude that the legislature has granted the department broad authority to grant exceptions and variances from its rules, including Wis. Admin. Code ch. Comm 83.

¶ 22. We agree with the department that its general authority to grant exceptions or variances from its rules and regulations derives from Wis. Stat. § 101.02(6)(e)-(h). See, e.g., § 101.02(6)(h) ("[I]f it shall be found that the order complained of is unjust or unreasonable the department shall substitute therefor such other order as shall be just and reasonable."); § 101.01(9) (" 'Order' means any decision, rule, [or] regulation ... of the department."). Further indication that the department's general authority to grant variances extends to provisions of the plumbing code are found in Wis. Stat. §§ 145.02(2) and (3), and 145.13. The former statute directs the department to establish and enforce plumbing standards "which shall be uniform and of statewide concern so far as practicable," § 145.02(2) (emphasis added), and it grants the department "such powers as are reasonably necessary to carry out the provisions of this chapter." Section 145.02(3). Section 145.13 directs that "[a]ll plumbing installations shall so far as practicable be made to conform with" the code. (Emphasis added.)

¶ 23. In short, we conclude that Wis. Admin. Code § Comm 83.24 neither conflicts with the express language of Wis. Stat. § 145.24 nor contravenes the legislature's intent regarding the department's authority to grant variances. That section of the rule, like ch. Comm 83 as a whole, is therefore reasonable, within the department's authority and valid. See Seider, 2000 WI 76 at ¶¶ 72-73.

¶ 24. The Friends' final claim raises a constitutional challenge. The legislature has provided in Wis. Stat. § 160.255(3) that "a regulatory agency may promulgate rules that define design or management criteria for private sewage systems that permit the enforcement standard for nitrate to be attained or exceeded." The Friends claim that, because this delegation of authority to the department "contains no express or implied standard" for the department to apply when deciding whether to exempt nitrates, it violates the "Separation of Powers doctrine." Therefore, according to the Friends, the department's exercise of that authority in Wis. Admin. Code § Comm 83.03(4) must be invalidated. See J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis. 2d 69, 89, 336 N.W.2d 679 (Ct. App. 1983) (noting that whether a power delegated to an agency "is constitutionally permissible ... depends on whether its exercise is controlled by adequate standards").

¶ 25. We agree with the intervenors, however, that Wis. Stat. § 160.255 represents a decision by the legislature to remove nitrates as a mandatorily regulated substance as far as private sewage systems are concerned. In creating ch. 160, the legislature established a broad and comprehensive regulatory scheme aimed at protecting the state's groundwater. It also created an exception which permits private sewage systems to exceed the numerical standards established for nitrates. Although it is true that the department could at some point elect to subject private sewage systems to the nitrate standards, this fact does not render the exception unconstitutional.

¶ 26. The legislature has broadly empowered the department to supervise plumbing in Wisconsin for the purpose of ensuring that all plumbing installations are "safe, sanitary and such as to safeguard the public health and the waters of the state." Wis. Stat. § 145.02(1). We agree with the department that this standard provides adequate legislative guidance under which the department could decide to regulate nitrates in private sewage systems, just as it does other substances or concerns that affect "the public health and the waters of the state" that are not specifically addressed by Wis. Stat. ch. 160 groundwater protection standards.

¶ 27. Alternatively, the Friends argue that even if Wis. Stat. § 160.255 is not constitutionally defective, the department erred in not requiring private sewage systems to meet the requisite nitrate standards. They claim the department should not have left nitrates to local regulation via zoning, and it should not have engaged in a "cost-benefit" analysis in deciding not to apply the nitrate standard to private systems statewide. We are not persuaded by the Friends' arguments that the department somehow exceeded its statutory authority in promulgating Wis. Admin. Code § Comm 83.03. Wisconsin Stat. § 160.255 expressly authorizes the department to do precisely what it did, and thus the Friends' final contention is reduced to a claim that the department should not have exempted private systems from the nitrate standards, not that it could not do so. That is not a basis for invaliding a rule under Wis. Stat. § 227.40(4), however. We will not substitute our judgment for that of the department regarding the wisdom of the rule it adopted. See Liberty Homes, Inc., 136 Wis. 2d at 393 ("We will not independently. . . determine whether the agency made the 'best' choice.").

CONCLUSION

¶ 28. For the reasons discussed above, we conclude that the circuit court did not err in declining to declare Wis. Admin. Code ch. Comm 83 invalid.

By the Court. — Order affirmed.

       The League of Wisconsin Municipalities was also a plaintiff in the declaratory judgment action but does not join in this appeal. We will refer to the plaintiffs-appellants, collectively, as "the Friends."

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

       A "regulatory agency" is a state agency which regulates "activities, facilities or practices which are related to substances which have been detected in or have a reasonable probability of entering the groundwater resources of the state," specifically including the Department of Commerce. Wis. Stat. § 160.01(7).

       The intervenors, who respond separately to the Friends' appeal, are perhaps closer to the mark when they assert that the decision to promulgate the revised ch. Comm 83 is entitled to a measure of judicial deference because the department: (1) "engaged in extensive rule-making proceedings before promulgation of its final rules"; (2) "held several hearings around the state"; and (3) "received numerous comments about its draft rules, including comments about the central issue in this case." Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 892, 498 N.W.2d 826 (1993); see also Seider v. O'Connell, 2000 WI 76, ¶ 69, 236 Wis. 2d 211, 612 N.W.2d 659.

       The Friends rely in part on an opinion by the Attorney General, OAG 3-99 (June 15, 1999), to persuade us that Wis. Admin. Code ch. Comm 83 fails to comply with Wis. Stat. ch. 160. The Attorney General opined that "rules incorporating Risk-Based Corrective Action ... for the remediation of petroleum contamination in groundwater" would be inconsistent with ch. 160. 3 Op. Att'y Gen. 1 (1999). The opinion, however, is of little assistance on the present facts. The department acknowledges that its plumbing rules must comply with ch. 160 standards and requirements. The question before us is whether ch. Comm 83 does so. The fact that a different proposed rule, addressing a different topic altogether, may have failed to satisfy statutory mandates, sheds little light on whether the present rule satisfies them.

        "Expressio unius est exclusio alterius" is a "canon of construction holding that to express or include one thing implies the exclusion of the other." Black's Law DictionaRy 602 (7th ed. 1999).

       Wisconsin Admin. Code § Comm 83.03(4)(a) provides as follows: "Pursuant to [Wis. Stat. §] 160.255, the design, installation, use or maintenance of a [private sewage system] is not required to comply with the nitrate standard specified in ch. NR 140 Table 1...."

       Wisconsin Admin. Code § Comm 83.03(5) provides that "[t]his chapter does not affect municipal requirements relating to land use, zoning, or other similar requirements, including, pursuant to [Wis. Stat. §] 59.69, establishing nitrate requirements to encourage the protection of groundwater resources."