author: CURLEY, J.

text:
    In re the Commitment of George Melvin Taylor: State of Wisconsin, Petitioner-Respondent, v. George Melvin Taylor, Respondent-Appellant.

    Court of Appeals

      No. 03-1509.

      Submitted on briefs February 4, 2004.

    Decided March 30, 2004.

    2004 WI App 81
    (Also reported in 679 N.W.2d 893.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender, of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 6-8-04.

   CURLEY, J.

¶ 1. George Taylor appeals from a Chapter 980 commitment order entered after a jury found him to be a sexually violent person, and an order denying his postcommitment motion. Taylor contends that his trial counsel's failure to challenge the State's use of peremptory challenges to strike only male jurors deprived him of his constitutional right to the effective assistance of counsel. Because Taylor has failed to establish that the results of the jury selection process would have been different had an objection been made, we affirm.

I. Background.

¶ 2. In May 1997, the State filed a petition seeking to have Taylor committed as a sexually violent person under Chapter 980. See Wis. Stat. ch. 980 (1997-98). Prior to the trial, Taylor filed a motion in limine seeking to have the entire trial recorded, including voir dire. The trial court denied the motion indicating that it was not the court's practice to record voir dire, but that if a problem developed, a court reporter would be utilized. The voir dire process subsequently occurred off the record. At the conclusion of voir dire, the proceedings went back on the record. Several jurors were struck for cause. After both parties made use of their peremptory challenges, with the State striking four men, the selected jury consisted of seven women and six men. No objections were made.

¶ 3. After a four-day trial, the jury found Taylor to be sexually violent. He was subsequently committed to institutional care. Taylor appealed the commitment order, and after several motions were filed and the confusion as to the status of Taylor's representation was resolved, we issued an order remanding the matter to the trial court to allow Taylor to file a postcommitment motion.

¶ 4. In his postcommitment motion, Taylor moved the court to vacate his commitment order because the trial court failed to record the voir dire process and because he received ineffective assistance of counsel. The trial court denied the motion in two separate orders. Taylor appealed. This court affirmed in part, but remanded the matter to the trial court to examine the effect of trial counsel's failure to raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), in light of the State's use of all four of its peremptory challenges on male jurors. State v. Taylor, No. 98-1030, unpublished slip op. (WI App Nov. 21, 2000).

¶ 5. Taylor then filed a postcommitment motion requesting a new trial. The basis of his motion was his contention that his trial counsel did not provide him with effective assistance when he failed to raise a Batson challenge after the State struck only male jurors. The court held a. Machner hearing, at which the voir dire process was "reconstructed" from testimony of the assistant district attorney and defense counsel, handwritten notes, and a jury panel roster. Both trial counsel admittedly remembered very little, if anything, about the individual jurors. They did, however, have their respective handwritten notes on which to rely.

¶ 6. The testimony established that the first juror struck by the State had a prior battery conviction, served on a civil jury, and felt that prosecutors were unfair. The second juror struck by the State was married to an attorney and had served as the foreman in a criminal jury trial that went to verdict. The third stricken juror had previously served as a juror in at least one prior criminal trial. Although the exact details of his background were unclear, the fourth juror had been on at least two juries, and served as the foreperson in at least one.

¶ 7. The assistant district attorney testified that she struck the first juror because "he was absolutely hellbent on telling me ... how unfair this prosecution against him had been, and I figured this is not a good person to keep on a jury." He had also served on a prior jury, and the assistant district attorney testified that she did not like using "repeat jurors." She struck the second juror because his wife was an attorney and because he had been the foreman of a criminal jury that reached a verdict. She testified that she struck the third and fourth jurors because of their previous criminal jury experience. She explained: "These trials are so different from criminal jury trials, that I feel peoples' expectations would be to see a criminal jury trial and they are not going to be getting one. I try to avoid that kind of confusion."

¶ 8. On cross-examination, the assistant district attorney testified that she had not considered whether the individual jurors were male or female when she struck them. In response to the question as to whether, in general, she had a preference as to male or female jurors in Chapter 980 cases, she replied: "All things being equal, I like men because they tend to be more critical of predators. These other people I absolutely didn't want on my jury for the reasons I already stated." On re-direct, in response to a question regarding whether there were any other jurors with prior criminal jury experience, she replied that there were two other jurors that had prior civil jury experience, one of whom may have had experience on a criminal jury as well.

¶ 9. Taylor's trial counsel testified that he was aware of Batson at the time of Taylor's trial, but that he did not recall why he did not raise a Batson challenge. He further testified that he could not recall what his understanding of Batson was at the time of Taylor's trial — whether he "contemplated gender as a basis for Batson at the time." After being questioned in regard to the 1994 Supreme Court case making gender a viable basis for a Batson challenge, he indicated that he could not recall "one way or another" whether he was aware, at the time of Taylor's trial, that gender was a basis for a Batson challenge.

¶ 10. Following the testimony, the trial court heard argument from the State and Taylor, and questioned Taylor's postcommitment counsel in regard to the lack of transcripts. It then held:

What we have here is a claim that [trial counsel] did not raise Batson issues as to the State's striking of all males in the jury selection. Clearly we don't have a transcript of the jury selection voir dire, so it makes this a little bit more difficult, but my concern and my questions that I asked her really helped me come to the conclusion that a transcript would probably not have made much difference.
The bottom line is that we heard from [the assistant district attorney] today, and if a Batson challenge were to have been made she would have testified as to the reasons why she struck the four males. And in my mind right now today from what I heard on the stand, they all appear reasonable. And if I were the trial judge at the time, I would have denied the Batson challenge at that time.
So under all of the circumstances in determining that the Batson challenge would have been without merit at the time that it may have been brought up, it is clear that the trial attorney's performance is clearly not deficient, and, therefore, the motion is denied.

Taylor now appeals.

II. Analysis.

¶ 11. Taylor contends that his trial counsel's failure to object to the State's use of its peremptory challenges to strike only male jurors deprived him of his constitutional right to the effective assistance of counsel. Taylor insists that the trial court "made no findings of fact with respect to what trial counsel knew or what his reasons for failing to make the objection were," and that the trial court "incorrectly held that counsel was deficient only if counsel's objection would have been successful." Taylor argues that the proper question, when determining whether trial counsel's performance was deficient, is whether, based upon the information known to counsel at the time of jury selection, there was a prima facie case under Batson, and if so, whether trial counsel had a strategic reason for foregoing the challenge. Taylor contends that there was a prima facie case and that trial counsel had no strategic reason for foregoing the challenge.

¶ 12. Furthermore, Taylor contends that his trial counsel's deficient performance was prejudicial. He asserts that since there is no Wisconsin case that discusses how prejudice should be measured in a situation such as this — when an allegation of ineffectiveness is grounded in the failure to raise a Batson challenge — this court should adopt the approach employed by the Alabama Supreme Court in Ex parte Yelder, 575 So. 2d 137 (Ala. 1991). In that case, the Alabama court held that "the failure of trial counsel to make a timely Batson objection to a prima facie case of purposeful discrimination by the State in the jury selection process through its use of peremptory challenges is presumptively prejudicial to a defendant." Id. at 139. Taylor urges this court to presume prejudice and conclude that he was deprived of his constitutional right to the effective assistance of counsel.

¶ 13. Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the defendant was prejudiced as a result of this deficient conduct. See id. at 687; see also State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). To prove deficient performance, the defendant must identify specific acts or omissions of counsel that fall "outside the wide range of professionally competent assistance." See Strickland, 466 U.S. at 690. To show prejudice, the defendant must demonstrate that the errors were so serious that the result of the proceeding was unreliable. Id. at 687.

¶ 14. Both prongs of the Strickland test involve mixed questions of law and fact. Pitsch, 124 Wis. 2d at 633-34. We will not disturb the trial court's findings of fact unless they are clearly erroneous. Id. at 634. However, "[t]he questions of whether counsel's behavior was deficient and whether it was prejudicial to the defendant are questions of law, and we do not give deference to the decision of the [trial] court." Id. Finally, it is of consequence to note that if the defendant fails to meet either prong — deficient performance or prejudice —the ineffective assistance of counsel claim fails. Strickland, 466 U.S. at 697.

¶ 15. This case, as indicated above, involves a complicating factor — the ineffectiveness claim is rooted in trial counsel's failure to raise a Batson objection during the jury selection process. In Batson, the Supreme Court declared:

Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial. A person's race simply "is unrelated to his fitness as a juror."

476 U.S. at 87 (citations omitted). The Court accordingly held:

[T]he State's privilege to strike individual jurors through peremptory challenges... is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.

Id. at 89 (footnote and citation omitted). This principle was later extended to the peremptory strikes of defense counsel, see Georgia v. McCollum, 505 U.S. 42 (1992), and civil litigants, see Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). It was also extended to situations in which the peremptory challenge was exercised to strike a juror of a different race than that of the defendant, see Powers v. Ohio, 499 U.S. 400 (1991), and as is relevant to this case, to peremptory challenges based upon gender, see J.E.B. v. Alabama, 511 U.S. 127 (1994).

¶ 16. As has been noted by several courts when faced with ineffective-assistance-of-counsel claims such as Taylor's, it would fly in the face of the premise of Batson to require a defendant to show that the outcome of the trial would have been different if the composition of the jury, in regard to race or gender, had been altered. See, e.g., Davidson v. Gengler, 852 F. Supp. 782, 786-87 (W.D. Wis. 1994); Yelder, 575 So. 2d at 138-39. Thus, it seems that instead of determining whether the outcome of the trial was unreliable or would have been different, the proper determination should be whether the jury selection would have resulted differently. Facing a somewhat similar situation, the United States District Court for the Western District of Wisconsin determined:

[T]he correct application of the Strickland ... test for determining prejudice on an ineffective assistance claim is not whether the outcome of the trial would have been different, but. . . whether the results of [the] jury selection process would have been different had a Batson objection been made.

Davidson, 852 F. Supp. at 783 (citation omitted). The court further observed that should defendants be required to prove that race or gender had an impact on the outcome of the trial, "they would have no realistic way to prove that the outcome of a trial would have been different had a particular juror not been struck[,]" as "[t]hey are prohibited from inquiring into the deliberations process to obtain evidence." Id. at 787.

¶ 17. Having determined that the proper inquiry is whether the result of the jury selection process would have been different had a Batson objection been made, the federal court went on to reject the Yelder approach embraced by Taylor. The court reasoned that presuming prejudice in such cases would create the presumption that all Batson objections have merit. Instead, it concluded:

Applying Strickland to the jury selection process would require a criminal defendant to prove that if the Batson objection has been made there was a "reasonable probability" it would have been sustained and that the trial judge would have taken curative action before the trial began.
Determining prejudice through an evaluation of the result of a hypothetical Batson objection protects both Strickland's principle of outcome determinative prejudice and Batson's mandate that the jury selection process not be infected by purposeful discrimination.

Davidson, 852 F. Supp. at 787. We agree and adopt this approach. Thus, in order to show prejudice, Taylor must establish that had trial counsel made the Batson objection, there is a "reasonable probability" that it would have been sustained and the trial court would have taken the appropriate curative action.

¶ 18. Accordingly, we must now turn to the Bat-son challenge itself. Our supreme court has adopted the Batson principles and analysis. State v. Lamon, 2003 WI 78, ¶ 22, 262 Wis. 2d 747, 664 N.W.2d 607 (citing State v. Davidson, 166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991)). Lamon reiterates the three-part, burden shifting analysis set forth in Batson for the evaluation of such a challenge:

[I]n order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant's race from the venire, and (2) the facts and relevant circumstances raise an inference that the prosecutor used peremptory strikes to exclude venirepersons on account of their race.

Lamon, 262 Wis. 2d 747, ¶ 28 (footnote omitted). Then, if the trial court finds that the defendant has indeed established a prima facie case, "the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]" and "[t]he prosecutor's explanation must be clear, reasonably specific, and related to the case at hand." Id., ¶ 29 (citation omitted). This step concerns the facial validity of the prosecutor's explanation. That is, unless the prosecutor intended to cause a disparate impact with his or her peremptory strike, the impact itself does not compromise the neutrality of the strike. Id., ¶ 30. Finally, after the prosecutor offers a neutral explanation for the strike, the trial court "has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established." Id., ¶ 32. The defendant has the "ultimate burden" of persuading the trial court that there was purposeful discrimination. Id. Thus, a showing of disparate impact is not enough — proof of discriminatory intent or purpose is essential for a successful Batson challenge.

¶ 19. Taylor urges us to employ a de novo standard of review in assessing the trial court's determination on the Batson challenge. He recognizes the general rule that a trial court's finding on the issue of discriminatory intent will not be overturned unless clearly erroneous, but insists that, under the circumstances of this case, de novo review would be appropriate. Taylor cites Holder v. Welborn, 60 F.3d 383 (7th Cir. 1995), in support of this contention.

¶ 20. In Holder, the Seventh Circuit determined that the reasoning utilized by the Supreme Court for applying the clearly erroneous standard — "the trial court generally conducts the Batson inquiry contemporaneously with the voir dire procedure, and therefore is in the best position to witness the statements of the challenged jurors and to assess the credibility of the prosecutors as they seek to justify the exercise of a peremptory challenge" — was inapplicable to the circumstances of Holder's case. Id. at 388. In particular, Holder's Batson hearing was held more than eight years after the voir dire proceeding; neither the magistrate who presided over the hearing nor the judge who eventually decided the case was present at the original proceeding, and thus neither had the opportunity to observe the demeanor of the venirepersons as they answered questions posed by counsel; and both defense counsel and the prosecutor had very little, if any, recollection of the actual proceeding, and thus had to rely upon their notes and the transcripts of the voir dire for the Batson hearing. Id. Accordingly, the court concluded: "[S]ince [the magistrate, the judge,] and the members of this panel all have basically been provided with only a cold record from which to determine if a Batson violation occurred at Holder's jury trial, we find that no deference is warranted under these circumstances." Id.

¶ 21. Taylor relies on the similarities between the circumstances of his case and those in Holder to support his contention. There is, however, a critical difference — the voir dire proceeding was not reported in this case. While it may initially seem that the lack of transcripts would strengthen Taylor's argument that we should adopt the Holder approach, it appears to do quite the opposite. That is, the Seventh Circuit's decision in Holder is grounded in part on the existence of the "cold record" that was available to both courts. Here, the only record available for our review is that of the Batson hearing, during which the trial court had the opportunity to observe the prosecutor and consider her explanation for her peremptory strikes first hand. We do not have that same unique ability to assess the prosecutor's credibility — we were not at the hearing. As such, the fact remains that, regardless of the similarities between the instant case and Holder, the trial court's determination on the merits of a Batson challenge in this case boiled down to a credibility determination.

¶ 22. In Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion), the Supreme Court rejected the contention that appellate courts should independently review the trial court's ultimate determination on discriminatory intent:

Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."
. .. [I]f an appellate court accepts a trial court's finding that a prosecutor's race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.

Id. at 366-67 (citations omitted). Thus, discriminatory intent is a question of historical fact. Lamon, 262 Wis. 2d 747, ¶ 45. Moreover, Wisconsin has adopted the clearly erroneous standard of review for all three steps of the Batson inquiry. See State v. Lopez, 173 Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992). Here, as noted above, the merits of the Batson challenge boiled down to a determination of the assistant district attorney's credibility — an issue of fact. As such, we conclude that the appropriate standard of review is whether the trial court's finding was clearly erroneous. We conclude that it was not.

¶ 23. Assuming arguendo that Taylor managed to establish a prima facie case of purposeful discrimination, the essential inquiry that remained was whether the prosecutor had viable gender-neutral explanations for her peremptory challenges. The assistant district attorney testified that she struck the first juror because of his statement that he believed that prosecutors were unfair, and because of his prior civil jury experience. She testified that she struck the second juror because his wife was an attorney and because he had been the foreman of a criminal jury that reached a verdict. She testified that she struck the third and fourth jurors because of their previous criminal jury experience, and because of the significant difference between criminal and Chapter 980 trials. These explanations are reasonable. The trial court accepted this testimony as credible, and presumably concluded that Taylor failed to meet the ultimate burden of establishing discriminatory intent. We see no reason to upset that determination, as it was not clearly erroneous.

¶ 24. Taylor has not persuaded us that had trial counsel raised a Batson objection, there is a "reasonable probability" that it would have been sustained. Thus, he has failed to establish that his trial counsel's failure to challenge the State's use of its peremptory challenges to strike only male jurors deprived him of his constitutional right to the effective assistance of counsel. We affirm.

By the Court. — Orders affirmed.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

        J.E.B. v. Alabama, 511 U.S. 127 (1994).

       Taylor also contends that since there is no record of the voir dire proceeding, this court should either assume that the record would support Taylor's claim or grant him a new trial on that basis alone. Taylor does not cite any authority in support of his contention that we should assume that the record would support Taylor's claim, and as such, we refuse to even consider it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) ("Arguments unsupported by references to legal authority will not be considered.")
      Regarding his contention that we should grant him a new trial purely on the basis of the lack of record, we decline to do so. In a footnote, Taylor cites State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 784 (1987) in support of his request. However, Perry is clearly distinguishable, and Taylor fails to explain why Perry should mandate a new trial here. In Perry, portions of the transcripts from the defendant's trial were lost in the mail, including the entire testimony of two witnesses and portions of motion arguments, discussions on stipulations, in-chambers conferences, the prosecutor's closing argument, an offer of proof from a defense witness, and the instructions to the jury. Id. at 95-96. The supreme court concluded that the deficiencies in the trial transcripts deprived the defendant of his right to a meaningful appeal, especially considering that one of his claims of error included prosecutorial misconduct. See id. at 107-09. Here, nothing was "lost." Voir dire was not reported, but at the time of the trial, that was not required. Compare SCR 71.01(2) (1995-96) with SCR 71.01(2) (1997-98) (amended Jan. 1,1998). Furthermore, the trial court adequately "reconstructed" the record during the Machner hearing. Taylor has failed to persuade us that the absence of transcripts from the voir dire
        proceedings deprives him of his right to a meaningful appeal, especially considering the nature of a Batson claim — the district attorney's mindset while exercising the State's peremptory challenges would not have been recorded in a transcript, except to the extent of the explanations she would have offered. Those explanations, however, were still available at the hearing following remand.

       Considering the "facts and relevant circumstances" of this case — e.g., the final composition of the jury and the relevant information available concerning the potential jurors — an inference that the prosecutor used peremptory strikes to exclude potential jurors on account of their gender appears tenuous. However, once a neutral explanation has been offered, "and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303.


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    In the Matter of the Guardianship of Carly A.T.: Amy Z., Petitioner-Respondent, v. Jon T., Appellant.
    Court of Appeals

      No. 03-0606.

      Submitted on briefs February 5, 2004.

    Decided March 31, 2004.

    2004 WI App 73
    (Also reported in 679 N.W.2d 903.)

      On behalf of the appellant, the cause was submitted on the briefs of Geoffey Dowse of Madrigrano, Ziever, Aiello, Marry & Dowse, S.C. of Kenosha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Anita R. Cruise of Legal Action of Wisconsin, Inc., Racine.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. Jon T. appeals from a child support order issued by the circuit court in the context of a Wis. Stat. ch. 880 (2001-02). guardianship proceeding. Jon challenges the order on two grounds. First, Jon argues the circuit court did not have the authority to issue a child support order in the context of a ch. 880 guardianship proceeding. Alternatively, Jon contends that neither the guardianship petition nor the ensuing proceedings provided him with adequate notice that child support would be addressed at the hearing.

¶ 2. We conclude that the circuit court had the authority to address child support in the context of a Wis. Stat. ch. 880 guardianship proceeding. However, we further conclude that neither the petition nor the proceedings themselves provided Jon with advance notice that child support would be addressed at the hearing. We therefore reverse and remand for a hearing on child support with Jon having been given adequate notice to respond to the claim.

BACKGROUND

¶ 3. On January 9, 2003, Carly A.T.'s maternal aunt, Amy Z., petitioned the probate branch of the Racine county circuit court for permanent guardianship of Carly. The petition recited that Carly's mother was deceased and that Carly's father, Jon, had been charged with felony physical abuse of Carly. At the ensuing hearing, the circuit court granted the petition and appointed Amy as Carly's guardian. Over Jon's objection, the court also entered an order for child support in the amount of $143 per week.

¶ 4. Jon appeals, raising two arguments. First, he contends that a circuit court does not have the authority to issue a child support order in a guardianship proceeding. Alternatively, he contends that the guardianship petition did not provide him fair and adequate notice that child support would be addressed at the guardianship hearing.

DISCUSSION

Subject Matter Jurisdiction/ Competency to Proceed

¶ 5. Jon first contends that the probate branch of the circuit court did not have the authority to order child support in the context of a guardianship proceeding under Wis. Stat. ch. 880. Jon couches his argument in terms of subject matter jurisdiction, arguing that the circuit court does not have subject matter jurisdiction over child support because ch. 880 does not give the court the power to enter such an order. Instead, Jon contends that the guardian was required to file a petition in family court for child support under Wis. Stat. ch. 767.

¶ 6. As noted, Amy's petition was filed in the probate branch of the circuit court. Both the family court and the probate court are circuit courts. Morrissette v. Morrissette, 99 Wis. 2d 467, 470, 299 N.W.2d 590 (Ct. App. 1980). "[T]he circuit courts possess 'plenary' jurisdiction by virtue of Wis. Const. Art. VII, § 8, and that jurisdiction, in the sense of judicial power to act, does not depend on legislative authorization." Schoenwald v. M.C., 146 Wis. 2d 377, 390, 432 N.W.2d 588 (Ct. App. 1988) (citing Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 551, 307 N.W.2d 881 (1981)). Thus, "[n]o circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Schoenwald, 146 Wis. 2d at 390 (citation omitted).

¶ 7. In light of this law, Jon's reliance on the law of subject matter jurisdiction is misplaced. Instead, Jon's argument is more properly cast in terms of the circuit court's competency to proceed. While a circuit court may have subject matter jurisdiction to consider and determine any type of action, failure to comply with a statutory mandate results in a loss of competency that prevents a court from adjudicating the specific case before it. See Kohler Co. v. Wixen, 204 Wis. 2d 327, 336-37, 555 N.W.2d 640 (Ct. App. 1996). As the Schoe-nwald court explained, even though a circuit court may have subject matter jurisdiction, it "may nevertheless lack 'competency' to act because the state has not conferred power upon the court." Schoenwald, 146 Wis. 2d at 390.

Competency is a narrower concept than subject matter jurisdiction and is grounded in the court's power to exercise its subject matter jurisdiction. Although a court is vested with subject matter jurisdiction by the constitution, the legislature may enact statutes which limit a court's power to exercise subject matter jurisdiction. Such legislative measures affect a court's competency rather than its jurisdiction.

Kohler Co., 204 Wis. 2d at 336 (citation and footnote omitted). We therefore address Jon's argument as a challenge to the circuit court's competency to proceed.

¶ 8. Amy, the petitioner, first raised the issue of child support in her closing statement to the circuit court. Jon responded by challenging the authority of the circuit court to address child support in a guardianship proceeding under Wis. Stat. ch. 880. In response, the circuit court stated, "With respect to child support, that is something that in a guardianship this Court does routinely, because when a child is not living with a parent, that parent still has the legal and moral obligation to support the child."

¶ 9. The guardianship statutes lend support to the circuit court's determination. Wisconsin Stat. § 880.07 sets out the requirements for a guardianship petition. Among other requirements, this statute provides that a petition for guardianship "shall state, so far as may be known ... [a]ny . . . claim, income, compensation, pension, insurance or allowance to which the proposed ward may be entitled." Sec. 880.07(l)(e). In keeping with this statute, the preprinted Petition for Guardianship of Minor form used in this case provides a space for the petitioner to indicate those claims, including a space to indicate support "to which the minor may be entitled" and the person who would be responsible for providing that support. A child's right to support is fundamental. Weidner v. W.G.N., 125 Wis. 2d 212, 215, 371 N.W.2d 379 (Ct. App. 1985), affirmed, 131 Wis. 2d 301, 388 N.W.2d 615 (1986). The language in § 880.07(1)(e) that "[a]ny . .. claim ... to which the proposed ward may be entitled" is broad enough to take in a claim for support. By providing that a guardianship petition include such a potential claim, it follows that the legislature envisioned that the circuit court has the authority to adjudicate such a claim.

¶ 10. We recognize that Wis. Stat. ch. 880 does not otherwise address support nor provide guidelines as to how support should be determined. However, the failure of ch. 880 to further expound upon support is not fatal to a circuit court's competency to address the issue. There is nothing in ch. 880 which prohibits a circuit court from addressing support in a guardianship proceeding or which directs the court to defer to the jurisdiction vested in the family branch of the circuit court in matters of support. Thus, there is nothing to indicate that the legislature has limited the circuit court's plenary jurisdictional power to address child support in the context of a ch. 880 proceeding. See Kohler Co., 204 Wis. 2d at 336.

¶ 11. We note that support is not the only area in which Wis. Stat. chs. 880 and 767 overlap. Prior case law instructs that when a subject is addressed in both chs. 767 and 880, a circuit court conducting a ch. 880 proceeding may look to ch. 767 for guidance. See F.R. v. T.B., 225 Wis. 2d 628, 639-40, 593 N.W.2d 840 (Ct. App. 1999).

¶ 12. In F.R., the court of appeals held that the circuit court had not exceeded its authority in a Wis. Stat. ch. 880 proceeding by granting visitation privileges to a child's maternal grandmother under Wis. Stat. § 880.155. F.R., 225 Wis. 2d at 646. In reaching its decision, the court noted that § 880.155 employed the term "best interests of the child" but did not define what the court is to consider in making its determination. F.R., 225 Wis. 2d at 639. To assist on this question, the court turned to the Family Code, noting:

When lawmakers knowingly use the same phrase or terminology in two different statutes addressing similar topics, we presume that the legislature intended them to have the same meaning in both statutes.
In light of [the similarities between the statutes,] we look to other provisions within ch. 767, Stats., for guidance on how to interpret the "best interests" language.

F.R., 225 Wis. 2d at 639-40 (citation omitted).

¶ 13. Although Wis. Stat. ch. 880 does not otherwise provide guidance on support, Wis. Stat. ch. 767 addresses support in a number of situations. Relevant to this case, Wis. Stat. § 767.08 governs "[a]ctions to compel support" which can be brought by any "nonle-gaily responsible relative" who assumes the responsibility for the care of a child without legal custody, but not in violation of a court order. Thus, as in F.R., an issue raised under ch. 880 but not fleshed out by that chapter may be analyzed under the guidance of ch. 767.

¶ 14. Jon contends, however, that the following language of Wis. Stat. § 767.01(1) limited the jurisdiction of the circuit court in this case:

The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in such actions and to carry their orders and judgments into execution as prescribed in this chapter. All actions affecting the family shall be commenced and conducted and the orders and judgments enforced according to these statutes in respect to actions in circuit court, as far as applicable, except as provided in this chapter.

Jon then additionally notes that Wis. Stat. § 767.02(l)(f) specifically identifies an action for child support as an action affecting the family.

¶ 15. We reject Jon's argument. While Wis. Stat. § 767.01(1) mandates the application of Wis. Stat. ch. 767, this directive is subject to an important qualifier —"as far as applicable." This signals the legislature's recognition that in certain instances other provisions of other statutes might also address a matter relating to the family. And this proves to be such a case. As we have already noted, a Wis. Stat. § 880.07(l)(e) guardianship proceeding may trigger a need for the circuit court to determine parental support.

¶ 16. A circuit court's broad powers to act in the best interests of a minor were confirmed in Holtzmann v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995). There, the circuit court had dismissed the visitation petition of a child's biological mother's former partner on grounds that there must be an "underlying action affecting the family." Id. at 666. Although holding that the Wis. Stat. ch. 767 visitation statute did not apply, the supreme court nonetheless reversed the circuit court's dismissal of the visitation petition. The court observed that the circuit court had authority to determine visitation rights, apart from the ch. 767 visitation statute, under "the plenary power of circuit courts and their equitable jurisdiction over children." Holtzmann, 193 Wis. 2d at 686. The court also noted prior case law holding that "[cjourts have jurisdiction in equity apart from the divorce statute to act in the best interest of a child" and that "[t]he protection of minors is one of the 'well-established grounds for the exercise of equity jurisdiction.' " Id. at 687 (citing Dovi v. Dovi, 245 Wis. 50, 54-57, 13 N.W.2d 585 (1944)). In addition, the supreme court held that the ch. 767 visitation statute was not intended by the legislature to."be the exclusive means of obtaining court-ordered visitation, or that it supplant or preempt the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute." Holtzmann, 193 Wis. 2d at 658.

¶ 17. Holtzmann and the long-standing precedent upon which it is based supports the circuit court's holding that the court had the competency to address child support in the context of a guardianship proceeding. As Holtzmann teaches, a circuit court has the equitable authority to address a matter traveling to the best interests of a child despite the fact that another more specific statute addresses the topic.

¶ 18. We conclude that the circuit court had the authority to order child support in the context of the Wis. Stat. ch. 880 proceeding. We do so in light of the constitutional grant of broad plenary power to the circuit courts coupled with the petition requirements under Wis. Stat. § 880.07, the lack of any statutory limitation on the circuit court's ability to address child support in the context of a ch. 880 proceeding, and a circuit court's equitable authority, apart from the divorce statutes, to act in the best interests of a child.

Due Process Notice

¶ 19. Having determined that the circuit court had the authority to address child support in the context of a Wis. Stat. ch. 880 proceeding, we turn to Jon's alternative argument that he was denied due process because neither the guardianship petition nor the proceedings notified him that Amy would be seeking child support.

¶ 20. Due process requires that the notice provided reasonably convey the information required for parties to prepare their defense and make their objections. Bachowski v. Salamone, 139 Wis. 2d 397, 412, 407 N.W.2d 533 (1987).

¶ 21. The guardian argues that Jon should have anticipated that all of the issues addressed in' the guardianship petition would be addressed at the hearing. However, while the petition form has a space indicated for the amount of support to which the minor may be entitled and the person who would be responsible for paying it, the petition indicates the support amount as "$0.00" and fails to indicate any person who is paying support or from whom support is sought. Further, Wis. Stat. § 880.07(l)(e) provides that a "petition shall state, so far as may be known .. . [a]ny other claim, income, compensation, pension, insurance or allowance to which the proposed ward may be entitled." The petition fails to so indicate. No reasonable person responding to this petition would anticipate that the petitioner was asserting a claim for support.

¶ 22. As to the proceeding itself, the issue of support was first raised as the parties were making their closing statements to the circuit court. Given that the matter of support was not raised until the final moments of the hearing and was not otherwise addressed at any earlier point in the proceedings, we hold that the proceedings did not provide Jon with fair and adequate notice to address the issue. We reverse the child support order and remand for a new hearing.

CONCLUSION

¶ 23. We conclude that a circuit court has the authority to address child support in the context of a Wis. Stat. ch. 880 guardianship proceeding. However, we further conclude that neither the guardianship petition nor the proceedings themselves, provided Jon with notice that child support was a matter to be litigated at the hearing. As such, we reverse the child support order and remand for a hearing on that issue.

¶ 24. No costs to either party.

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

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

       We note that on May 23,2003, we received correspondence from Jon informing us that Carly had returned to his care and that the child support order at issue on appeal was terminated by a stipulation approved by the circuit court on May 16, 2003. By order dated May 29, 2003, we requested the parties to brief the issue of whether the appeal was rendered moot by virtue of the parties’ stipulation. Jon responded that during the time period that the child support order was effective — from the date of its entry on January 24, 2003, until the time Carly returned to his care — he paid the guardian approximately $2500 in child support. Therefore, we determined that this appeal was not moot.

       We reject Amy's threshold argument that Jon waived his right to challenge the child support order on appeal by failing to raise it before the probate court. The record reflects that Jon raised the issues of jurisdiction and notice in his closing argument, stating: "[T]here's no request for child support before the Court" and "I see nothing in [Wis. Stat.] Chapter 880 that gives this Court jurisdiction on child support." We therefore address the merits of these arguments.

       As to the family court, Wis. Stat. § 767.01, entitled "Jurisdiction," states at subsec. (1) "The circuit courts have jurisdiction of all actions affecting the family ...." As to the probate court, Wis. Stat. § 880.02, entitled "Jurisdiction," states, "The circuit court shall have jurisdiction over all petitions for guardianship."

       "Prior to the 1977 reorganization of the Wisconsin trial courts, probate jurisdiction rested in the county courts. Upon the unification of ail trial courts into a single circuit court level, probate jurisdiction, like family court, is now at the circuit court level." Morrissette v. Morrissette, 99 Wis. 2d 467, 470 n.1, 299 N.W.2d 590 (Ct. App. 1980). Therefore, we reject Jon's reliance on King v. First Nat'l Bank of Kenosha, 39 Wis. 2d 80, 158 N.W.2d 337 (1968), and Gerlach v. Thiem, 58 Wis. 2d 113, 205 N.W.2d 779 (1973), which predate court reorganization and recognition of the plenary power of all the circuit courts.

       This form was developed and adopted by the Forms Committee of the Wisconsin Judicial Conference. Supreme Court Order 98-01 created Wis. Stat. § 758.18, which provides that the Judicial Conference "shall adopt standard forms for use by parties and court officials in all civil and criminal actions and proceedings in the circuit court." This order further mandated the use of such forms effective January 1, 2000, for criminal and juvenile cases, and July 1, 2000, for civil cases.


author: BROWN, J. SNYDER, J.

text:
    Jaime R. Peterson, Plaintiff-Appellant, v. Volkswagen of America, Inc., Defendant-Respondent.

    Court of Appeals

      No. 03-0955.

      Submitted, on briefs November 18, 2003.

    Decided March 31, 2004.

    2004 WI App 76
    (Also reported in 679 N.W.2d 840.)

      SnydeR, J., dissents.
    On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gregory H. Moss, Scott M. Cohen, and Matthew J. McClenahan of Krohn & Moss, Ltd., of Chicago, Illinois.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Bruce D. Huibregtse and Drew J. Cochrane of Stafford Rosenbaum LLP of Madison.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition for review granted 6-8-04.

   BROWN, J.

¶ 1. Jaime R. Peterson appeals from an order dismissing her claim for breach of warranty brought pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-12 (2004). Peterson contends that the circuit court erred in concluding that because she leased, rather than purchased, the vehicle under warranty, she fails to satisfy the Magnuson-Moss Act's definition of a "consumer" and is therefore not entitled to the Act's protections. We hold that where the sale is made in an effort to facilitate a lease, the issuance of the warranty accompanies this sale, and the lessor explicitly transfers its rights in the warranty to the lessee — as was allegedly the case here — the lessee is entitled to the protections of the Act. Accordingly, we reverse and remand the case for further proceedings consistent with this opinion.

¶ 2. This case comes to us as an appeal from a grant of a motion to dismiss. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999). The facts set forth in the complaint must be taken as true and the complaint dismissed only if it appears certain that no relief can be granted under any set of facts the plaintiffs might prove in support of their allegations. Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 923, 471 N.W.2d 179 (1991). The reviewing court must construe the facts set forth in the complaint and all reasonable inferences that may be drawn from those facts in favor of stating a claim. Id. at 923-24. Whether a complaint states a claim for relief is a question of law which this court reviews de novo. Wausau Tile, Inc., 226 Wis. 2d at 245.

¶ 3. This dispute concerns the lease of an automobile, a 1999 Volkswagen Beetle, manufactured by Volkswagen of America, Inc. The complaint states that North Shore Bank purchased the Beetle from Ernie Von Schledorn Pontiac Buick Volkswagen, an authorized Volkswagen dealer, in order to facilitate the lease of the Beetle to Peterson. In consideration for the sale of the Beetle, Volkswagen issued and supplied to North Shore Bank its written warranty, which included two-year or twenty-four-thousand mile bumper-to-bumper coverage, as well as other warranties outlined in the Vehicle Limited Warranty booklet. On or about March 27,1999, Peterson leased and took possession of the Beetle from North Shore Bank. On or about that same date, North Shore Bank assigned its rights in the Volkswagen warranty to Peterson. The complaint further alleges that the transfer of Volkswagen's warranty "occurred during the duration of said warranty."

¶ 4. Pursuant to Volkswagen's warranty, Peterson tendered the Beetle to Volkswagen's authorized dealerships for repair on numerous occasions. Specifically, Peterson tendered the Beetle for repair due to defects in its engine as evidenced by intermittent illumination of the check engine light, intermittent illumination of the check oil light, the vehicle not running, and problems with the keyless entry system and windows. Volkswagen, through its authorized dealerships, attempted to repair the Beetle on at least four occasions. Volkswagen, however, was unable to remedy the defects in the car.

¶ 5. In August 2002, Peterson revoked her acceptance of the vehicle in writing. Volkswagen refused Peterson's attempt to revoke acceptance of the Beetle. Thereafter, Peterson filed a three-count complaint against Volkswagen, alleging that (1) Volkswagen breached its written warranty pursuant to the Magnuson-Moss Act; (2) Volkswagen breached its implied warranty of merchantability pursuant to the Magnuson-Moss Act; (3) Peterson revoked her acceptance of the Beetle pursuant to the Magnuson-Moss Act.

¶ 6. Volkswagen filed a motion to dismiss Peterson's complaint pursuant to Wis. Stat. § 802.06 (2001-02), arguing that because Peterson is an automobile lessee, she failed to satisfy the definition of the term "consumer" in the Magnuson-Moss Act. The circuit court agreed and granted Volkswagen's motion to dismiss, concluding that the Magnuson-Moss Act applies only when "a warranty, whether written or implied, [is] in connection with the sale of a vehicle." This appeal follows.

¶ 7. The sole issue we address on appeal is whether Peterson has standing to pursue her claim under the Magnuson-Moss Act. The Act allows a "consumer" to bring a suit where he or she claims to be "damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this [Act] or under a written warranty, implied warranty, or service contract." 15 U.S.C. § 2310(d)(1). The interpretation of a statute is a question of law that we review de novo. Morris v. Juneau County, 219 Wis. 2d 543, 550, 579 N.W.2d 690 (1998).

¶ 8. For purposes of the Act, a "supplier" is "any person engaged in the business of making a consumer product directly or indirectly available to consumers." 15 U.S.C. § 2301(4). In addition, a "warrantor" is defined to mean "any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty." 15 U.S.C. § 2301(5). Here, Peterson has alleged that Volkswagen is in the business of manufacturing, selling and distributing motor vehicles and related equipment and services as well as marketing, supplying and selling written warranties to the public through a system of authorized dealerships, including Ernie Von Schledorn. Therefore, Peterson has alleged that Volkswagen is both a "supplier" and a "warrantor."

¶ 9. We now turn to the question of whether Peterson qualifies as a "consumer" under the Act. The Act defines three categories of "consumer": a category one consumer is "a buyer (other than for purposes of resale) of any consumer product"; a category two consumer is "any person to whom such product is transferred during the duration of an implied or written warranty (or service contract)"; and, a category three consumer is "any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract)." 15 U.S.C. § 2301(3). Accordingly, there are three classes of individuals that may qualify as a "consumer": (1) buyers; (2) transferees; and (3) persons entitled to enforce the warranty. Szubski v. Mercedes-Benz, U.S.A., L.L.C., 796 N.E.2d 81, 85 (Ohio Com. Pl. 2003). Here, Peterson alleged in her complaint that she leased and took possession of the Beetle during the time in which a written two-year or twenty-four-thousand mile "bumper to bumper" warranty issued by Volkswagen was in effect. We agree with Peterson that a plain reading of the Act reveals that this is sufficient to establish that the automobile was transferred to her during the effective period of the warranty. See id. at 85 (holding that a lessee qualified as a transferee where the plaintiffs "alleged that they leased the automobile during the time period in which a written four-year or fifty-thousand mile 'bumper to bumper' warranty issued by the manufacturer was in effect"); see also Black's Law Dictionary 1504 (7th ed. 1999) (defining "transfer" as "to change over the possession or control of'). This, however, does not end the inquiry. The Act allows enforcement only of an implied or written warranty as defined by the Act. Cohen v. AM Gen. Corp., 264 F. Supp. 2d 616, 619 (N.D. Ill 2003).

¶ 10. A written warranty is defined as:

(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

15 U.S.C. § 2301(6) (emphasis added). Thus, to qualify as an enforceable written warranty for purposes of the Act, a writing must have either been made as part of a sale or made "in connection with a sale by a supplier," and "be a part of the basis of the bargain between a supplier and a buyer for purposes other than resale." See id.

¶ 11. Peterson contends that Volkswagen's warranty was given "in connection with a sale" of the car and the sale was "for purposes other than resale." She points out that in her complaint she alleges that a sale occurred between North Shore Bank and the Ernie Von Schledorn dealership and this sale was for the nonre-sale purpose of facilitating and financing the lease of the car. Volkswagen responds that, under the Act, a sale to a consumer with a passage of title is required in order for there to be a "written warranty." Volkswagen suggests that because the Act does not define "buyer" or "sale," we must look to the Uniform Commercial Code to define those terms. Under the UCC, the definition of "sale" demands a "passing of title." Uniform Commercial Code § 2-106(1) (1989). "Buyer" is defined as "a person who buys or contracts to buy goods." Uniform Commercial Code, § 2-103(l)(a) (1989). According to Volkswagen, Peterson was neither a "buyer" nor a party to a "sale" because there is no transfer of title in a lease transaction. Thus, Volkswagen contends, Peterson has no standing to pursue her claim under the Act.

¶ 12. As both parties recognize, no Wisconsin court has addressed the question of whether an automobile lessee is entitled to enforce a written warranty issued as part of a lease transaction under the Act. The persuasive authorities of other jurisdictions are divided on this question.

¶ 13. In DiCintio v. DaimlerChrysler Corp., 768 N.E.2d 1121, 1122-23 (N.Y. 2002), the New York Court of Appeals held that the Act did not apply to a thirty-six-month lease with an option to buy. The court held that a lessee was not a "consumer" because he was neither a buyer, a transferee nor a person entitled to enforce the warranty. Id. at 1124. The court determined that no "written warranty" was in effect during the lease period because no "sale" had occurred as that term is defined in the UCC. Id. The court reasoned that the lessee enjoyed a different bundle of rights than a buyer, could have chosen not to buy, and paid less than a buyer who opts for a monthly payment plan. Id. at 1125. The court also noted that congress's inclusion of leases in other consumer protection statutes, such as the Truth in Lending Act, is evidence that congress knew how to draft legislation to protect leases and opted not to include such protection in the Magnuson-Moss Warranty Act. Id. at 1125-26. Other courts have also held that the Act does not cover leases. See Sellers v. Frank Griffin AMC Jeep, Inc., 526 So. 2d 147, 155-56 (Fla. Dist. Ct. App. 1988) (holding that the Act's provisions did not apply to a pure automobile lease that offered no purchase option because leases and sales give rise to very different legal obligations); D.L. Lee & Sons, Inc. v. ADT Sec. Sys., Mid-South, Inc., 916 F. Supp. 1571,1580 (S.D. Ga. 1995) (concluding "[t]here must be an identifiable purchase and sale before the provisions of the Magnuson-Moss Act apply").

¶ 14. On the other hand, in Cohen, 264 F. Supp. 2d at 618, 621, the United States District Court for the Northern District of Illinois held that the Act applied to the lease of a 1999 American General Hummer where the lease terms included an option to buy at the end of the lease period. The court held that the warranty delivered from the manufacturer to the lessor was a "written warranty" as defined by the Act. Id. at 620. The court reasoned that the terms of the warranty were part of the bargain between the manufacturer and the lessor; therefore, the warranty was issued "in connection with" the sale of the vehicle from the manufacturer to the lessor. Id. at 619-20. Accordingly, the court held that the term "sale" as defined in the Act, "is not limited to transactions between the warrantor and the ultimate consumer." Id. at 619. The court rejected the DiCintio court's conclusions with respect to the significance of a lessee's rights as compared to a buyer's rights:

The Act does not require us to look at the bundle of rights acquired by the purchaser and the lessee. Instead, a plain reading of the Act forces us to simply look for a warranty exchange in connection with a sale. Defendant clearly sold the vehicle to Mister Leasing and, when doing so, made a series of promises in connection with this sale. This is enough for the warranty to meet the first part of the definition of "written warranty" in 15 U.S.C. § 2301(6).

Cohen, 264 F. Supp. 2d at 620. Other courts are of a similar mind. Szubski, 796 N.E.2d at 88 (holding that the Act does not require the sale to be made to an ultimate consumer with a passage of title to that party); Dekelaita v. Nissan Motor Corp. in USA, 799 N.E.2d 367, 373 (Ill. App. Ct. 2003) (holding that the Act does not limit a "sale" to transactions between the warrantor and the ultimate consumer); Voelker v. Porsche Cars North Am., Inc., 353 F.3d 516, 524-25 (7th Cir. 2003) (holding that the act applied to automobile lease transactions where the lessee is entitled to enforce the warranty under state law).

¶ 15. We agree with the courts that have held that where the sale of a vehicle is merely to facilitate a lease, the issuance of the warranty accompanies this sale, and the lessor explicitly transfers its rights in the warranty to the lessee — the lessee is protected by the Magnuson-Moss Act. The interpretations in DiCintio and cases that concur with it are not required by the language of the Act, as Cohen, Szubski and other opinions show. See Szubski, 796 N.E.2d at 87-88; Dekelaita, 799 N.E.2d at 373; Cohen, 264 F. Supp. 2d at 619-20. The statutorily defined term "written warranty" does not dictate that the sale be made to an ultimate consumer with a passage of title to the party. The language of the Act demands only that we find a warranty exchange between a buyer and a supplier in connection with a sale made for purposes other than resale. 15 U.S.C. § 2301(6). Furthermore, like the courts in Cohen and Szubski, we believe this interpretation is in keeping with the purposes of the Act, which is to protect the ultimate user of the product. See DiCintio, 768 N.E.2d at 1123 (quoting H.R. Rep. No. 93-1107 reprinted in 1974 U.S.C.C.A.N. 7702, 7708); Cohen, 264 F. Supp. 2d at 620-21; Szubski, 796 N.E.2d at 87-88. To the extent that a lessee fits the definition of "consumer" by receiving an automobile in transfer, it would be unreasonable, if not illogical, to conclude that a lessee does not enjoy the same right to enforce a warranty as a purchaser enjoys. The Cohen court aptly articulated this point when it made the following observation:

Plaintiffs here fit squarely within the definition of "consumer" in that they are entitled to enforce the warranty by the terms of 15 U.S.C. § 2301(3). If we then determine that this warranty does not qualify as a written warranty under the Act, there is nothing for the plaintiffs to enforce. Moreover, when selling the [consumer product to the lessor], [the manufacturer] was aware that [the lessor] was facilitating a lease and transferring possession of the vehicle to plaintiffs. It knew that plaintiffs would be the users of the vehicle and the only party who would likely seek to enforce the warranty. If they are unable to do so, the assurances of the manufacturer are empty — no party would be able to enforce the warranty.

Cohen, 264 F. Supp. 2d at 621.

¶ 16. In reaching our conclusion, we observe that in Voelker, the Seventh Circuit conducted a thorough and painstaking analysis of the Act as it applies to automobile lessees claiming breach of written warranty. There, Porsche, the manufacturer, sold the automobile to one of its dealerships, which then took title to the vehicle and leased it to Voelker. Voelker, 353 F.3d at 520. As part of the lease agreement, Porsche and the dealership provided Voelker with a written warranty. Id. Before determining that Voelker qualified as a category three consumer, the Seventh Circuit rejected Voelker's claims that he could proceed as either a category one or a category two consumer. The court maintained that Voelker was not a buyer "for purposes other than resale" because the term "buyer," presupposes that a "sale" take place and the only "sale" in that case, which occurred between Porsche and its dealership, was for the purposes of resale. Id. at 523. The court next determined that he failed to allege facts that would show that the automobile was transferred to him "during the duration of [the written warranty.]" Id. at 524. The court explained that the warranty by its own terms did not begin until after possession of the car was transferred to Voelker. Id. The court then held that Voelker qualified as a category three consumer because he was entitled under applicable State law to enforce the obligations of the warranty against Porsche. Id. at 525. The court observed that under the state law of Illinois, as an assignee of that warranty, a lessee like Voelker was entitled to enforce the rights arising from the warranty. Id. at 524 (citing Collins Co. v. Carboline Co., Ltd., 532 N.E.2d 834, 837 (1988), which held that an assignee of a warrantee's rights under an express warranty succeeds to all those rights and stands in privity with the warrantor).

¶ 17. Unlike the court in Voelker, we need not reach the question of whether Peterson qualifies as a category three consumer by virtue of Wisconsin law because the facts as alleged are different. Peterson's complaint alleges the vehicle came with Volkswagen's manufacturer's warranty, which was in effect at the time it was sold to North Shore Bank, and North Shore Bank assigned its rights in the warranty to Peterson when it leased her the vehicle. The complaint further states that the terms of the warranty were part of the bargain between Ernie Von Schledorn, who is alleged to be a supplier by virtue of its status as a Volkswagen dealership, and North Shore Bank, the alleged buyer to whom title of the vehicle passed. It is doubtful that North Shore Bank and Peterson would have agreed to the sale if it were not for the warranty. Additionally, contrary to Volkswagen's assertions, this sale was for purposes other than resale. The complaint states that North Shore Bank would not have purchased the Beetle if it were not for the leasing agreement with Peterson. Nothing in the complaint suggests that North Shore Bank ever intended to add the Beetle to its inventory or advertise it for sale to other parties. Put simply, taking all the allegations in the complaint as true, North Shore Bank profited from this transaction through the lease agreement. Thus, while it may be true that North Shore Bank was likely to sell the vehicle after the expiration of the lease — perhaps even to Peterson pursuant to the lease's option to purchase clause — the purpose of the transaction between North Shore Bank and Ernie Von Schledorn was for the lease of the vehicle to Peterson and not for resale. Accordingly, we hold that Peterson is a category two consumer permitted under the Act to enforce Volkswagen's written warranty.

By the Court — Order reversed and cause remanded.

SNYDER, J.

¶ 18. (dissenting). The majority opinion reverses the order dismissing Peterson's complaint and concludes that she is a consumer under the Magnuson-Moss Warranty Act. I respectfully dissent from the majority opinion conclusion "that Peterson is a category two consumer permitted under the Act to enforce Volkswagen's written warranty." That conclusion is premature and unfair to the trial court and to the parties. I would vacate the order and remand for further consideration of the motion to dismiss by the trial court and the parties.

¶ 19. Peterson is a lessee of the Volkswagen vehicle. The majority opinion acknowledges that at the time of the dismissal order, February 26, 2003, existing case law supported the trial court's holding that a "lessee" was not a "consumer" under the Act. DiCintio v. DaimlerChrysler Corp., 768 N.E.2d 1121, 1124 (N.Y. 2002); Sellers v. Frank Griffin AMC Jeep, Inc., 526 So. 2d 147, 156 (Fla. Dist. Ct. App. 1988); and D.L. Lee & Sons, Inc. v. ADT Sec. Sys., Mid-South, Inc., 916 F. Supp. 1571, 1580 (S.D. Ga. 1995). Our primary function is error correcting, see Cook v. Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246 (1997), and normally that would settle the issue in favor of the trial court's order. However, the majority opinion, relying upon Cohen v. AM General Corp., 264 F. Supp. 2d 616 (N.D. Ill. 2003), concludes that DiCintio is wrongly decided and that Peterson is a category two consumer under the Act.

¶ 20. The Cohen decision was released on March 10, 2003. The trial court was not aware of the Cohen analysis on February 26, 2003, when it applied DiCintio (issued February 13, 2002) and dismissed Peterson's complaint as not being cognizable under the Act. The parties have briefed Cohen's, impact on the appellate issue and we can review the Cohen argument even though the argument was not available to the trial court. See Harvest Sav. Bank v. ROI Invs., 209 Wis. 2d 586, 596, 563 N.W.2d 579 (Ct. App. 1997). Cohen concludes that "thepurpose of the transaction between [the buyer/lessor] and the [manufacturer] was not for resale, but for the lease of the vehicle to [the lessee]." Cohen, 264 F. Supp. 2d at 619. Cognitively, Cohen then concedes that "other courts have disagreed with this interpretation." Id.

¶ 21. One other court that is not in lockstep with Cohen is Voelker v. Porsche Cars North America, Inc., 353 F.3d 516 (7th Cir. 2003). Voelker (released December 12, 2003) returned to the analysis of "consumer" under 15 U.S.C. § 2301(3), rather than focusing on Cohen's reliance upon the definition of written "warranty" under 15 U.S.C. § 2301(6), to address whether lessee Voelker had standing as a consumer to assert a breach of written warranty claim. In doing so, Voelker specifically addressed and denied Voelker's standing as a category two consumer.

¶ 22. In denying category two consumer standing, the Voelker court asked "[H]as Voelker alleged facts that would show that he is 'any person to whom such product is transferred during the duration of [a] written warranty (or service contract) applicable to the product?' " Voelker, 353 F.3d at 524 (citing to 15 U.S.C. § 2301(3)). The Voelker court looked to the written warranty itself, attached to Voelker's well pled complaint, and determined that Voelker was not a category two consumer under the Act:

That warranty, however, did not begin until after possession of the car was transferred to Voelker, and not "during [the warranty's] duration." By its own terms, the warranty did not take effect until one of four antecedents occurred: "the date the car [was] first delivered to the first retail purchaser, or the date it [wa]s first used as a demonstrator, lease, or company car, whichever c[ame] first." The only triggering event that Voelker identifies is the date that the car was first used — by himself — as a lease car. Because the warranty did not begin until the date the car was "first used as a ... lease" car, the warranty did not begin until after [the lessee] took possession. Thus, Voelker has failed to allege that the car was "transferred [to him] during the duration" of the New Car Limited Warranty, and, accepting all of the allegations in his complaint as true, he does not qualify as a category two consumer.

Voelker, 353 F.3d at 524.

¶ 23. Peterson's complaint alleges that she took possession of the vehicle on May 27, 1999. Peterson further alleges that she is "a lessee of a consumer product who received the [Volkswagen vehicle] during the duration of a written warranty period applicable to the [vehicle] and who is entitled by the terms of the written warranty to enforce against Manufacturer the obligations of said warranty." (Emphasis added.) Unlike Voelker, however, Peterson neither attaches the Volkswagen written warranty to her complaint, nor provides the specific term(s) of the warranty that she relies upon in her complaint, to establish the factual support for her conclusory allegation. Even under Wisconsin's liberal pleading rules, Peterson has failed to present the critical facts in her complaint that would allow her to claim standing as a category two consumer under the Act.

¶ 24. A motion to dismiss for failure to state a claim tests whether the complaint is legally sufficient to state a claim for which relief may be granted. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 331, 565 N.W.2d 94 (1997). If the written warranty of the Peterson vehicle commenced when it was "first used" as a lease car, as did Voelker's warranty, the complaint is not legally sufficient for Peterson to state a claim for relief as a category two consumer under the Magnuson-Moss Warranty Act, and that is the only issue presented in this appeal.

¶ 25. Wisconsin's liberal Wis. Stat. § 802.02 "notice pleading" rule has limitations. Our supreme court has held that our rules of pleadings do not provide a "file first and ask questions later" approach to litigation. Jandrt ex rel. Brueggeman v. Jerome Foods, Inc. 227 Wis. 2d 531, 569, 597 N.W.2d 744 (1999). A plaintiff may not rely on formal discovery to establish the factual basis of its cause of action, thereby escaping the mandates of both Wis. Stat. §§ 802.05 and 814.025 "when the required factual basis could be established without discovery." Jandrt, 227 Wis. 2d at 568 (emphasis added). "Safe harbor," a pleading concept which excuses a complaint's uncertain or unclear factual allegations in order to allow facts to be ascertained with certainty and clarity through later discovery, is not necessary here and "does not relieve an attorney from establishing a factual basis for a claim when that basis could be established by means other than discovery." Id. There is no excuse for Peterson's failure to present in her complaint the written warranty that contains the specific terms upon which relief under her complaint must turn.

¶ 26. Voelker directs that whether Peterson is a category two consumer under the Act turns upon the language of the Volkswagen written warranty itself. The warranty was never provided to the trial court, nor is the warranty even in the appellate record. Liberal "notice pleading" does not equate to misleading, clever or inadequate pleading. Discovery is not necessary here to establish the written warranty upon which the totality of Peterson's claim for relief is based.

¶ 27. In sum, the trial court did not have the benefit, as do we, of either the Cohen or Voelker opinions. Peterson has not provided the written warranty itself as a basis to support her alleged standing as a category two consumer under the Act. I would vacate the order dismissing Peterson's complaint as being premature because it is unknown whether the written warranty supports Peterson's conclusory allegation that she took possession of the vehicle during the period the warranty was in effect. The motion to dismiss Peterson's complaint for failure to state a cause of action should be reinstated and the motion remanded to the trial court to allow an opportunity for the trial court and the parties to consider the same criteria that this court has taken the liberty to review, as well as the relevant portions of the written warranty that would establish whether or not Peterson is a category two consumer under a Voelker analysis.

       Volkswagen contends that North Shore Bank did not purchase the vehicle and Ernie Von Schledorn is, in fact, the lessor. For support, Volkswagen points out that while Peterson's complaint states that North Shore Bank is the lessor, the lease attached to the complaint designates the Ernie Von Schledorn dealership as the lessor of the vehicle. While we acknowledge that this discrepancy causes confusion as to the nature of the transaction and on remand the facts may show differently, the complaint alleges that North Shore Bank bought the vehicle from Ernie Von Schledorn and then leased it to Peterson and we must construe the facts in a complaint and all reasonable inferences as true. See Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 923-24, 471 N.W.2d 179 (1991).

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

       For ease of reference, we will adopt the Seventh Circuit's manner of distinguishing between the three types of consumers. In Voelker v. Porsche Cars North America, Inc., 353 F.3d 516, 522 n.1 (7th Cir. 2003), although the statute itself does not use this terminology, the court referred to the three types of consumers as category one, two and three consumers.

       The dissent argues that even under Wisconsin's liberal pleading rules, Peterson has failed to present the critical facts in her complaint that would allow her to claim standing as a category two consumer under the Act because she did not attach the written warranty to the complaint. Thus, the dissent concludes, our determination that Peterson is a category two consumer is premature. The dissent argues that the proper remedy is to vacate the order dismissing Peterson's complaint, reinstate the motion to dismiss and remand the matter to allow the trial court to review the written warranty using the Voelker analysis.
      Our response to the dissent is twofold. First, the dissent's rationale implies that in order to withstand a motion to dismiss, a complainant under the Act must provide proof of the facts alleged in the complaint by attaching the written warranty. This conclusion is contrary to the law. In assessing the sufficiency of the complaint, the court does not evaluate whether the plaintiff can prove the allegations of the complaint. See, e.g., Vogel v. Liberty Mut. Ins. Co., 214 Wis. 2d 443, 447, 571 N.W.2d 704 (Ct. App. 1997); Riedy v. Sperry, 83 Wis. 2d 158, 165-66, 265 N.W.2d 475 (1978). The purpose of the complaint is to give notice of the nature of the claim; and, therefore, it is not necessary for the plaintiff to set out in the complaint all the facts which must eventually be proved to recover. Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 463, 449 N.W.2d 35 (1989). Second, bearing this in mind, our conclusion is not premature. The outcome of this appeal is driven by the facts alleged in Peterson's complaint — namely, that a sale occurred between Ernie Von Schledorn and North Shore Bank, North Shore Bank leased the vehicle to Peterson and that North Shore Bank assigned to Peterson its rights in Volkswagen's written warranty during the duration of the warranty. Thus, for now, Peterson is a category two consumer. Her status may change if the facts are determined to be different than those alleged in the complaint. To the extent that the facts are later shown to be different, the appropriate remedy will take place at the summary judgment stage.

       The majority opinion also cites to Szubski v. Mercedes-Benz, U.S.A., L.L.C., 796 N.E.2d 81 (Ohio Com. Pl. 2003), Dekelaita v. Nissan Motor Corp. in USA, 799 N.E.2d 367 (Ill. App. Ct. 2003), and Voelker v. Porsche Cars North Am., Inc., 353 F.3d 516 (7th Cir. 2003). Szubski and Dekelaita are cited as being courts "of a similar mind" to Cohen v. AM General Corp., 264 F. Supp. 2d 616 (N.D. Ill. 2003). Voelker will be addressed later in this dissent.

        Voelker was not only released after Cohen but cites to Cohen in its analysis of whether Voelker was a category one consumer. Voelker, 353 F.3d at 523. Voelker was aware of the
        Cohen decision when it held that Voelker did not qualify as a category two consumer and does not cite to Cohen as being relevant to that determination.

        Cohen opines in its rationale that "[i]f [the lessees] are unable to [enforce the warranty], the assurances of the manufacturer are empty — no party would he able to enforce the warranty." Cohen, 264 F. Supp. 2d at 621. To the contrary, in Wisconsin both the lessor and lessee would have standing to enforce the written warranty under our Lemon Law. See Wis. Stat. § 218.0171.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Keith M. Carey, Defendant-Respondent.

    Court of Appeals

      Nos. 03-1578-CR through 03-1583-CR.

      Submitted on briefs February 5, 2004.

    Decided March 31, 2004.

    2004 WI App 83
    (Also reported in 679 N.W.2d 910.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Paul G. LaZotte, assistant state public defender.

      Before Anderson, EJ., Brown and Nettesheim, JJ.

       Petition to review filed.

   BROWN, J.

¶ 1. The State appeals from an order denying its motion for redetermination of Keith M. Carey's competency to stand trial. The State argues that the circuit erred in concluding that it did not have the authority to order Carey to undergo a competency evaluation under the language of Wis. Stat. § 971.14(6)(a) and (d) (2001-02). We agree and reverse and remand for proceedings consistent with this opinion.

¶ 2. The relevant facts underlying this appeal are not in dispute. Carey was charged with several misdemeanors and a number of serious felonies, including two counts of arson, second-degree reckless endangerment, and felony bail jumping. Carey's competency to stand trial was questioned and the circuit court ordered a competency evaluation in August 2002. A staff psychiatrist at the Winnebago Mental Health Institute examined Carey. The psychiatrist concluded that while Carey suffered from "no major mental illness," he was nonetheless incompetent to stand trial due to "a long history of a learning disability" that caused "difficulties understanding legal concepts related to his case." He further determined that Carey did not have "a treatable psychiatric illness" and he was "unlikely to regain competency within the statutory limits."

¶ 3. After receiving a copy of the psychiatrist's report, the State filed a motion asking that Carey also "be examined by a psychologist to determine the extent of the defendant's learning disability and whether or not it renders him incompetent to stand trial and whether it renders him unlikely to regain competence within the statutory time limits." The court granted the motion and ordered that Carey submit to an examination by "a qualified psychologist from Winnebago Mental Health [Institution]." This exam apparently took place and was submitted to the court in November.

¶ 4. At a hearing held in December, the circuit court, relying on the two reports, found that Carey was incompetent to stand trial and not likely to regain competency within one year. The court then suspended the criminal proceedings. At the hearing, the prosecutor filed a statement meeting the requirements of Wis. Stat. § 51.15, the statute providing for emergency detention, and Carey was taken into custody and delivered to an approved public treatment facility.

¶ 5. Subsequently, a different circuit court held a probable cause hearing pursuant to Wis. Stat. §51.20(7). At the probable cause hearing, the court invoked the provisions of § 51.20(7) (d)l, which give the court the authority to convert the proceeding to a Wis. Stat. ch. 55 proceeding. The court appointed a temporary guardian, ordered a temporary protective placement and proceeded as if a petition had been made for guardianship and protective placement or services. Thereafter, Dr. Daniel Knoedler notified the prosecutor that in his opinion Carey was not an appropriate person for a commitment because he is not mentally retarded, the institution intended to discharge Carey and a permanent guardianship or protective placement under ch. 55 would not be sought.

¶ 6. Because Carey was about to be released from his civil commitment and Dr. Knoedler's evaluation indicated that Carey might be competent to stand trial, the State filed a motion for redetermination of Carey's competency. At the motions hearing held on January 10, 2003, the State argued that the court could order Carey to undergo a new competency examination under Wis. Stat. § 971.14(6)(d). Alternatively, the State maintained that the court could order a redetermination of Carey's competency to stand trial pursuant to § 971.14(6)(a). Carey countered that his case did not strictly fall within the precise language of either provision and therefore the circuit court did not have statutory authority to ever order a redetermination of Carey's competency to stand trial. The circuit court agreed with Carey and ruled that it did not have the authority to order a competency evaluation under the language of the various provisions of § 971.14.

¶ 7. The sole issue before us on appeal is whether the circuit court erred in concluding that it did not have the authority to require Carey to undergo a redetermi-nation of his competency to stand trial. As it did before the circuit court, the State contends that such authority can be found in Wis. Stat. § 971.14(6) (a) and (d).

¶ 8. Statutory construction is a question of law that we review de novo. State v. Leitner, 2002 WI 77, ¶ 16, 253 Wis. 2d 449, 646 N.W.2d 341. "When interpreting a statute, our purpose is to discern legislative intent. To this end, we look first to the language of the statute as the best indication of legislative intent. Additionally, we may examine the statute's context and history." Village of Lannon v. Wood-Land Contractors, Inc., 2003 WI 150, ¶ 13, 267 Wis. 2d 158, 672 N.W.2d 275 (citation omitted). Further, we will reject a literal reading of a statute that would lead to an absurd or unreasonable result that does not reflect the legislature's intent. State v. Jennings, 2003 WI 10, ¶ 11, 259 Wis. 2d 523, 657 N.W.2d 393. In interpreting a statute, we are to presume that "the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute." Nunez ex rel. Poulos v. Am. Family Mut. Ins., 2003 WI App 35, ¶ 24, 260 Wis. 2d 377, 659 N.W.2d 171, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (No. 02-1041) (citation omitted).

¶ 9. The statutory scheme for the transition between civil commitment or protective placement and the criminal courts set forth in Wis. Stat. § 971.14 is complex. We, therefore, will begin at the beginning.

¶ 10. Pursuant to Wis. Stat. § 971.14(5)(a), if the court finds that a defendant is not competent, but is likely to become competent, it may commit the defendant to the custody of the department of health and family services for a period of time not to exceed twelve months or the maximum sentence for the most serious offense with which the defendant is charged, whichever is less. In this case, however, the court determined that Carey was incompetent and not likely to become competent within the allotted time. Therefore, Carey could not be committed pursuant to subsec. (5)(a). Rather, the court's finding triggered the provisions of subsec. (6) (a) and (b). Subsection (6) (a) and (b) provide, in relevant part:

(6) DISCHARGE; CIVIL PROCEEDINGS, (a) If the court determines that it is unlikely that the defendant will become competent within the remaining commitment period, it shall discharge the defendant from the commitment and release him or her, except as provided in par. (b). The court may order the defendant to appear in court at specified intervals for redetermination of his or her competency to proceed.
(b) When the court discharges a defendant from commitment under par. (a), it may order that the defendant be taken immediately into custody by a law enforcement official and promptly delivered to a facility specified in s. 51.15(2), an approved public treatment facility under s. 51.45(2)(c) or an appropriate medical or protective placement facility. Thereafter, detention of the defendant shall be governed by s. 51.15, 51.45(11) or 55.06(11), as appropriate. The district attorney or corporation counsel may prepare a statement meeting the requirements of s. 51.15(4) or (5), 51.45(13)(a) or 55.06(11) based on the allegations of the criminal complaint and the evidence in the case. This statement shall be given to the director of the facility to which the defendant is delivered and filed with the branch of circuit court assigned to exercise criminal jurisdiction in the county in which the criminal charges are pending where it shall suffice, without corroboration by other petitioners, as a petition for commitment under s. 51.20, 51.45(13) or 55.06(2).

Thus, when a circuit court discharges a defendant from a commitment under § 971.14(6)(a), the circuit court, pursuant to § 971.14(6)(b), may immediately order that the defendant be taken into custody and held pursuant to Wis. Stat. ch. 51. Thereafter, further proceedings under ch. 51 or Wis. Stat. ch. 55 may occur. Here, after the court discharged Carey, the State invoked § 971.14(6)(b) by seeking and accomplishing Carey's detention under ch. 51, and later, under ch. 55.

¶ 11. Wisconsin Stat. § 971.14(6)(c) provides:

(c) If a person is committed under s. 51.20 pursuant to a petition under par. (b), the county department under s. 51.42 or 51.437 to whose care and custody the person is committed shall notify the court which discharged the person under par. (a), the district attorney for the county in which that court is located and the person's attorney of record in the prior criminal proceeding at least 14 days prior to transferring or discharging the defendant from an inpatient treatment facility and at least 14 days prior to the expiration of the order of commitment or any subsequent consecutive order, unless the county department or the department of health and family services has applied for an extension.

Here, Dr. Knoedler, the evaluator, notified the prosecutor that Carey was not an appropriate candidate for commitment because he was not mentally retarded, he would be released from his temporary placement and a permanent guardianship and protective placement under Wis. Stat. ch. 55 would not be sought. It was this notification that prompted the State's request for reevaluation pursuant to § 971.14(6) (d).

¶ 12. Wisconsin Stat. § 971.14(6)(d) provides:

(d) Counsel who have received notice under par. (c) or who otherwise obtain information that a defendant discharged under par. (a) may have become competent may move the court to order that the defendant undergo a competency examination under sub. (2). If the court so orders, a report shall be filed under sub. (3) and a hearing held under sub. (4). If the court determines that the defendant is competent, the criminal proceeding shall be resumed. If the court determines that the defendant is not competent, it shall release him or her but may impose such reasonable nonmon-etary conditions as will protect the public and enable the court and district attorney to discover whether the person subsequently becomes competent.

Thus, the State, once it learns that a defendant discharged under subsec. (6) (a) may become competent, may move the court to order the defendant to undergo a reevaluation of his or her competency to stand trial. This is precisely what happened here. The second sentence of subsec. (6) (a) grants the court the power to order the reevaluation of the competency of the defendant when the defendant is released from custody. Accordingly, in this case, the circuit court had the authority by virtue of subsec: (6)(d) and the second sentence in subsec. (6) (a) to order the competency examination.

¶ 13. Carey argues that Wis. Stat. § 971.14(6)(d) does not provide authority for the court to order him to undergo a competency evaluation because his commitment and discharge were not accomplished pursuant to subsec. (6)(a). Instead, Carey says that the suspension of the criminal proceedings and his discharge occurred pursuant to subsec. (4)(d) and his commitment occurred pursuant to subsec. (6)(b).

¶ 14. While Carey is technically right that the circuit court committed him under Wis. Stat. § 971.14(6)(b), it is subsec. (6)(a) that specifically envisions and authorizes the court to order a civil commitment under subsec. (6)(b). Furthermore, although Billy Jo W. v. Metro, 182 Wis. 2d 616, 645, 514 N.W.2d 707 (1994), is not directly on point, our supreme court's comments in that case concerning the purposes of § 971.14 are instructive. There, our supreme court recognized that the legislature had interwoven the provisions of Wis. Stat. chs. 51 and 971 to accommodate the constitutional protections against perpetual, unjustified confinement on the one hand and the interests of the public in prosecuting criminal defendants on the other hand. Billy Jo W., 182 Wis. 2d at 645. Thus, in furtherance of the latter, § 971.14(6) provides that the criminal court retains jurisdiction over the defendant, who can be prosecuted once he or she regains competency. Billy Jo W., 182 Wis. 2d at 644-45 (citing State ex rel. Porter v. Wolke, 80 Wis. 2d 197, 204, 257 N.W.2d 881 (1977)). This both ensures that a competent defendant does not escape the consequences of his or her criminal behavior and protects the public from a potentially dangerous competent individual.

¶ 15. Carey's reading of the statute, taken to its logical conclusion, would mean that the criminal proceedings for a person who is found incompetent and unlikely to become competent in the foreseeable future, but who also does not meet the standards for involuntary commitment or protective placement under Wis. Stat. chs. 51 and 55, will always remain suspended and open. The defendant will be released into the community and the court will never have the authority to order a reevaluation of the defendant's competency to stand trial. This is so regardless of whether there is evidence demonstrating the defendant's competence. Given that the purpose of the statute, in part, is to protect the interest of the public in prosecuting criminal defendants, Carey's restrictive reading of the statute is not only highly unreasonable, it also runs contrary to the statute's purposes. We, therefore, hold that the circuit court had the authority under Wis. Stat. § 971.14(6) to order a redetermination of Carey's competency to stand trial and we remand the matter for further proceedings.

By the Court. — Order reversed and cause remanded.

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

       Cases 03-1578, 03-1579, 03-1580, 03-1581, 03-1582 and 03-1583 were consolidated for purposes of this appeal.

       WISCONSIN Stat. § 971.14(4)(d) provides that if the court determines that the defendant is not competent and not likely to become competent within the time period provided in subsec. (5)(a), the proceedings shall be suspended and the defendant released, except as provided in subsec. (6)(b).