author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John W. Page, Defendant-Appellant.

    Court of Appeals

      No. 99-2015-CR.

      Submitted on briefs July 20, 2000.

    Decided November 30, 2000.

    2000 WI App 267
    (Also reported in 622 N.W.2d 285.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Thomas J. Balistreri, assistant attorney general.
    Before Vergeront and Deininger, JJ., and William Eich, Reserve Judge.

      Petition to review dismissed.

   VERGERONT, J.

¶ 1. John Page appeals his judgment of conviction for stalking, entry to a locked dwelling, and criminal damage to property contrary to WlS. STAT. §§940.32(2) (1997-98), 943.15, and 943.01(1), respectively, all committed with a dangerous weapon in violation of WlS. STAT. §. 939.63. He contends the evidence at trial was insufficient to support the jury's findings on the dangerous weapon enhancer under the standard established in State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994). We conclude the evidence was sufficient to support a finding beyond a reasonable doubt that he committed each of these three offenses while possessing a dangerous weapon to facilitate each predicate offense, which fulfills the standard established in Peete. We therefore affirm.

BACKGROUND

¶ 2. The three offenses for which Page was convicted involved his former wife, Pok Sun Page. The State's theory was that Page stalked Pok Sun in a course of conduct from February to March 12, 1998, which culminated with his breaking into her residence on March 12 and damaging the building in the process. The State alleged that Page possessed a knife when he committed each of the three crimes.

¶ 3. At trial, the State presented the following evidence. Pok Sun lived with their two children. Page had told Pok Sun that if she ever had a boyfriend, he would kill them both. When a male co-worker of hers came to her residence to teach her how to drive in January or February of 1998, Page pounded on the door and told Pok Sun to get the man out of the house. Thereafter, he came to her house almost everyday, pounding on the door or just standing outside. He also frequently called their son to ask about Pok Sun's coworker, and he began parking his car away from the parking lot where Pok Sun could not see it. Pok Sun and her son were frightened by Page's conduct; she did not let Page into her residence when he came, but instead spoke to him through a window.

¶ 4. On the morning of March 12,1998, while Pok Sun went out to warm up her car in the parking lot, Page entered her residence briefly, then went to her car, sat down in it, and began searching for the owner's manual. Pok Sun ran into the house, and then back to the car when she believed Page was gone. Page reappeared and angrily told her through the car window that he wanted to use her car, and then left. Later that evening, Pok Sun and her daughter went out and her son stayed home, although he was to have accompanied them. Page had known about their plans to go out. While home that evening, the son heard a drilling noise coming from a back window on the ground floor. He was afraid someone was trying to break-in, so he turned out the lights, locked the door, ran across the street and then ran to a neighbor's house. He saw Page's car parked nearby and he saw Page open the door of Pok Sun's residence from the inside. A neighbor went to Pok Sun's residence to investigate.

¶ 5. When police officers arrived at Pok Sun's residence, they found entry to the residence had been made by means of a drilled rear window. The officers found Page inside the residence and, after a fight, placed him under arrest. After they left with Page, the son found Page's glove and hat on the floor inside the residence, and in a closet he found a cordless drill, some screwdrivers, two pairs of pliers, two knives, one with a nine-and-one-half-inch blade, and two hoods. The next day the brakes on Pok Sun's car failed and she struck another vehicle. A mechanic who examined her car later that day discovered the brake lines were not rusty and had been severed at three wheels. He testified it was highly unusual for all three to break at the same time.

¶ 6. The only witness for the defense was the neighbor who went to investigate for Page's son, and his testimony was consistent with that of the State's witnesses.

¶ 7. In addition to being instructed on the elements of the offenses of stalking, entry into a locked dwelling and criminal damage to property, the jury was instructed on the dangerous weapon enhancer for each offense. Specifically, the jury was instructed that in order to find Page guilty beyond a reasonable doubt of committing each crime while possessing a dangerous weapon, it must be satisfied Page "committed the crime while possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime."

¶ 8. After the jury returned guilty verdicts finding Page had committed each of the three offenses while possessing a dangerous weapon, Page filed a post-conviction motion challenging the sufficiency of the evidence to support the findings on the dangerous weapon. The court denied the motion.

DISCUSSION

¶ 9. When we review a challenge to the sufficiency of the evidence to support a guilty verdict, we uphold the verdict unless the evidence, viewed most favorably to the conviction, including all reasonable inferences drawn in favor of the verdict, is so lacking in probative value and force that no reasonable jury could have found guilt beyond a reasonable doubt based on the evidence. State v. Poellinger, 153 Wis. 2d 493, 504, 507, 451 N.W.2d 752 (1990).

¶ 10. On appeal, Page does not question the sufficiency of the evidence to convict him of the underlying three offenses, but only the sufficiency of the evidence to convict him of the penalty enhancer for a dangerous weapon under WlS. Stat. § 939.63. This statute provides:

Penalties; use of a dangerous weapon. (l)(a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.

Section 939.63(l)(a)l. As to this statute, Page does not contend the evidence is insufficient for a reasonable jury to find beyond a reasonable doubt that he possessed the nine-and-one-half-inch blade knife. Rather, he contends that under Peete the State must prove a "factual nexus" between the dangerous weapon and the predicate offense, namely, that the weapon "facilitated" the commission of the crime. According to Page, in Peete the court explained the term "facilitate" is parallel in meaning to the statutory terms "using" or "threatening to use" the dangerous weapon. Page argues that, even if the knives found in Pok Sun's residence were dangerous weapons, there was no evidence he "used or threatened to use" them in the commission of any of the three crimes. Indeed, Page points out, there is no evidence Pok Sun and, the children knew Page possessed the knives until after his arrest.

¶ 11. We disagree with Page's reading of Peete and, therefore, with the premise of his argument. In Peete, the police officers found cocaine and loaded handguns while searching Peete's residence. Peete, 185 Wis. 2d at 11. He was charged with possession of cocaine with intent to deliver while in possession of a dangerous weapon. Id. The jury was instructed that if it was "satisfied beyond a reasonable doubt that the defendant committed the crime while possessing a dangerous weapon," it could answer "yes" to the question whether Peete committed the crime while possessing a dangerous weapon. Id. at 12-13. The court first decided that "possession" under WlS. STAT. § 939.63 included constructive as well as actual possession. Id. It then addressed the question whether the phrase "while possessing" requires the State to prove the existence of a nexus between the crime and the weapon. Id. at 9. The State and Peete both asserted the State did have to prove a nexus, and the court agreed. Id. at 16-17.

¶ 12. The court went on to define an adequate nexus. It concluded, when the State charges that a defendant has committed a crime while possessing a dangerous weapon, the State must prove the defendant possessed the weapon to facilitate commission of the predicate offense. Id. at 18. The court arrived at this conclusion by analyzing the language of WlS. STAT. § 939.63. Id. The court observed that when the defendant commits a crime while using or threatening to use a dangerous weapon, the weapon facilitates the commission of the crime because the use or threat of use makes the victim afraid, protects the defendant, and protects any contraband in the defendant's possession. Id. "Thus," the court stated, "the nexus requirement we establish, that a defendant possess the weapon to facilitate commission of the predicate offense, makes the language 'while possessing' in sec. 939.63 parallel in meaning to 'while ... using' or 'while ... threatening to use.'" Id. The court reversed the jury's answer to the question on the weapon enhancer and remanded for a new trial on that issue "[b]ecause the court did not require that the jury find beyond reasonable doubt that Peete possessed a dangerous weapon to facilitate the commission of the predicate drug offense." Id. at 19.

¶ 13. The court in Peete did not make "possessing" under WlS. STAT. § 939.63 the equivalent of either "using" or "threatening to use," as Page contends. Rather, the court validated "possessing" as a third alternative under the statute, as long as it was further defined as "possessing to facilitate commission of the crime." Page's reading of Peete — that possessing under § 939.63 requires evidence of either use or threat of use — directly contradicts the court's analysis in Peete and makes "possessing" superfluous. Under the correct reading oí Peete, if the evidence is such that a reasonable jury may find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it should that become necessary, the evidence is sufficient under § 939.63 even if the defendant did not actually use or threaten to use the weapon in the commission of the crime.

¶ 14. With this understanding of Peete, we consider whether there is sufficient evidence for a reasonable jury to find, beyond a reasonable doubt, that Page possessed the knife with the nine-and-one-half-inch blade to facilitate each of the three predicate crimes. Viewing the evidence most favorably to the State and drawing all reasonable inferences in favor of the State, we conclude the evidence is sufficient.

¶ 15. The jury could reasonably infer Page used the drill to break the latch on a window through which he then entered the premises. Because the knife was found with the drill and with other tools that could also be used for breaking into the residence, the jury could reasonably infer Page possessed the knife in order to protect himself and prevent interference by another, thereby facilitating breaking into the apartment. Since two crimes were committed when Page broke into the apartment — entry into a locked building and criminal damage to property — the jury could reasonably infer he possessed the knife for the purpose of facilitating those two crimes.

¶ 16. With respect to the stalking offense, the jury could reasonably infer Page not only possessed the knife when he entered Pok Sun's residence, but had it readily available while he was in her residence. It could also reasonably infer he entered Pok Sun's residence to culminate his course of stalking her by causing her to fear injury or death. Finally, the jury could reasonably infer Page possessed the knife to facilitate stalking Pok Sun, intending to use it to cause her to fear death or injury.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 940.32(2) provides:
      (2) Whoever meets all of the following criteria is guilty of a Class A misdemeanor:
      (a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or herself or a member of his or her immediate family or to fear the death of himself or herself or a member of his or her immediate family.

        (b) The actor has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to himself or herself or a member of his or her immediate family or will be placed in reasonable fear of the death of himself or herself or a member of his or her immediate family.
      (c) The actor's acts induce fear in the specific person of bodily injury to himself or herself or a member of his or her immediate family or induce fear in the specific person of the death of himself or herself or a member of his or her immediate family.

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

       We refer to Pok Sun Page by her first two names to distinguish her from the defendant, John Page.

       Page was also convicted of one count of felony armed burglary and one count of criminal damage to property (regarding Pok Sun's vehicle), but the court entered a separate judgment with respect to those and they are not involved in this appeal. The jury acquitted Page of one felony armed burglary count.

       We do not understand Page to be arguing that a reasonable jury could not have decided that a knife with a nine-and-one-half-inch blade is a dangerous weapon. In the event Page does intend to raise this issue, we hold that a reasonable jury could make that determination based on the evidence.

       In the later case of State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), the supreme court ruled that the holding of State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994), regarding the nexus requirement applies to actual as well as constructive possession.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    Dodgeland Education Association, Petitioner-Appellant, v. Wisconsin Employment Relations Commission and Dodgeland School District, Respondents-Respondents.
    Court of Appeals

      No. 00-0277.

      Oral argument September 14, 2000.

    Decided November 30, 2000.

    2000 WI App 260
    (Also reported in 623 N.W.2d 159.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Melissa A. Cherney and Bruce Meredith of Wisconsin Education Association Council, Madison.
    On behalf of the respondents-respondents, the cause was submitted on the briefs of John D. Niemisto, assistant attorney general, and James E. Doyle, attorney general; and Kirk D. Strang of Lathrop & Clark, LLP, Madison.
    Before Roggensack and Deininger, JJ., and William Eich, Reserve Judge.

      Petition to review granted.

   DEININGER, J.

¶ 1. The Dodgeland Education Association appeals an order in which the circuit court affirmed a ruling of the Wisconsin Employment Relations Commission. The commission determined that the Dodgeland School District had submitted a "qualified economic offer," and therefore that, although the district had a duty to bargain with the association regarding the economic impact of a change in teachers' preparation time, the impact issue could not be arbitrated. The association claims that the commission erred in concluding that the district had made a "qualified economic offer" because preparation time is a "fringe benefit" which must be maintained in order to have a "qualified economic offer." We conclude that we must accord the commission's interpretation of WlS. Stat. § 111.70(l)(nc) (1997-98) at least due weight deference, and under that standard of review, we affirm the commission's ruling.

BACKGROUND

¶ 2. The facts which spawned the present litigation are not in dispute. On April 1, 1996, the district and the association entered into a memorandum of understanding regarding teachers' preparation time. It provided that "absent mutual agreement by the parties to modify the number of preparation periods," middle school and high school teachers were to have two preparation periods per day, and elementary teachers were to have them during art, music and physical education classes and at lunch. The parties further agreed in the memorandum that "the current practice as set forth... shall continue in effect until June 30, 1997," and that "[although agreed upon as a practice to continue through June 30, 1997, the Collective Bargaining Agreement will not reflect the above references to preparation periods."

¶ 3. The commission found that it was the district's "general expectation and teachers' general practice" that preparation time was to be used for such purposes as: lesson planning, grading papers, meeting with students, making phone calls to parents, and numerous other activities auxiliary to a teacher's classroom duties. The commission also found, however, that "a teacher performing in a satisfactory manner is not subject to discipline if he/she chooses to accomplish the above tasks at times other than preparation periods and uses preparation periods as break time."

¶ 4. The 1995-97 contract between the district and the association contained provisions for the compensation of teachers who were "assigned to cover other classes during their regularly assigned preparation periods." Basically, the compensation specified was the "per period" rate provided in the contract for "substitute pay."

¶ 5. The district notified the association by letter in December 1997 that "since the Memorandum of Understanding regarding teacher preparation time ended June 30, 1997, there is no longer any guarantee of prep time." The letter further advised the association that the district intended "to discontinue the alleged teacher prep time past practice commencing with the next semester." During negotiations for the parties' 1997-99 contract, the association submitted a "preliminary final offer" which called for the "Continuation of preparation time memorandum." The district's "preliminary final offer" for the 1997-99 contract proposed to "maintain all fringe benefits and its percentage contribution toward the cost thereof' and to "provide the minimum increase in salary which Sec. 111.70(l)(nc)2, Stats., allows for the purposes of a qualified economic offer."

¶ 6. The district subsequently petitioned the commission for a declaratory ruling that it could not be compelled to proceed to binding arbitration regarding either (1) the association's proposal to continue the preparation time provisions contained in the previous memorandum of understanding, or (2) the terms of its offer for 1997-99 on "economic issues." In proceedings before the commission, the association proposed that, if the district "chooses to establish a schedule for a teacher which includes less preparation time" than that set forth in the previously effective memorandum of understanding, the teacher would be compensated for "work overload" based on a formula related to his or her "regular teaching salary."

¶ 7. To better understand the parties' proposals, and their significance to the issue under consideration, a brief description of impasse resolution procedures under WlS. STAT. § 111.70 and the changes effected by 1993 Act 16 is in order. Prior to the 1993 amendments, if the parties to a municipal employment collective bargaining agreement became "deadlocked with respect to any dispute between them over wages, hour and conditions of employment to be included in a new collective bargaining agreement," either party (or both of them) could petition the commission "to initiate compulsory, final and binding arbitration." WlS. STAT. § 111.70(4)(cm)6. Such "interest arbitration," however, is available only for "mandatory subjects of bargaining," that is, those which are "primarily related" to "wages, hours and conditions of employment," as opposed to those which are primarily related to the formulation or management of public policy, which are deemed "permissive subjects of bargaining." See City of Beloit v. WERC, 73 Wis. 2d 43, 54, 242 N.W.2d 231 (1976). Even those matters which relate primarily to educational policy, however, may impact on a teacher's "wages, hours or conditions of employment," and those impacts are mandatorily bargainable and thus subject to binding interest arbitration. Id.

¶ 8. Based in part on prior rulings, the commission determined in this case that the issue of how much preparation time, if any, a teacher should be allowed during the school day was not a mandatory subject of bargaining. The commission also concluded, however, that the association's proposal for compensation for reductions in the previously agreed upon preparation time was a mandatorily bargainable "impact." Thus, as the commission noted, the district would "have had no obligation to proceed to interest arbitration over" the preparation time issue itself, but "because a preparation time 'impact' proposal is a mandatory subject of bargaining, the District would have had an obligation to bargain over the 'impact' proposal and could be compelled [prior to 1993] to proceed to interest arbitration over the inclusion of the 'impact' proposal in a successor agreement." In the commission's words, "[t]his . . . litigation raises the question of whether the foregoing allocation of rights and duties continues to be valid under [WlS. Stat. § 111.70] as it now exists."

¶ 9. In 1993, the legislature amended the provisions of WlS. Stat. § 111.70 as they apply to bargaining units "consisting of school district professional employees." See § 111.70(4)(cm)5s. Under the revised statute, if a school district makes a "qualified economic offer," "no economic issues are subject to interest arbitration." Id. To be a "qualified economic offer," a proposal must "maintain the percentage contribution by [the district] to the ... employes' existing fringe benefit costs ... and . . . maintain all fringe benefits provided to the . . . employes in a collective bargaining unit, as such contributions and benefits existed on the 90th day prior to expiration of any previous collective bargaining agreement between the parties." Section 111.70(l)(nc)la Additionally, the district must propose to provide an average salary increase which meets or exceeds certain percentages specified in the statute. See § 111.70(l)(nc). Either a district or a bargaining unit may request the commission to determine whether the district "has submitted a qualified economic offer" which would preclude compulsory interest arbitration of economic issues. See § 111.70(4)(cm)5s. The district did so in this case.

¶ 10. The association argued before the commission that it should declare the preparation time provisions of the parties' previous memorandum of understanding to be a "fringe benefit," which the district was obligated to maintain in order to have a valid "qualified economic offer." The commission concluded, however, that "because the preparation time memorandum is a permissive subject of bargaining, it is not a 'fringe benefit' which the District must maintain as part of its qualified economic offer." The commission further concluded that the association's "impact proposal" (regarding compensation for reduced preparation time) was an "economic issue," see WlS. STAT. § 111.70(l)(dm), which must be the subject of bargaining, but cannot be arbitrated in light of the district's qualified economic offer. One commissioner dissented, concluding that the legislature intended to adopt an existing judicial definition for "fringe benefits" in the qualified economic offer amendments, and that under that definition, the district must maintain the status quo regarding teacher preparation time for it to have a qualified economic offer.

¶ 11. The association sought review of the commission's determination in circuit court. The court affirmed the commission's decision, and the association appeals.

ANALYSIS

¶ 12. Our review is of the commission's decision, not that of the trial court. See Gordon v. State Med. Examining Bd., 225 Wis. 2d 552, 556, 593 N.W.2d 481 (Ct. App. 1999), review denied, 228 Wis. 2d 168, 599 N.W.2d 409 (1999) (No. 98-2144). The initial dispute in this appeal, as in many involving our review of statutory interpretations by administrative agencies, is over the level of deference we should accord the commission's conclusion that teacher preparation time is not a "fringe benefit" within the meaning of WlS. Stat. § 111.70(l)(nc)l.a. When reviewing an agency's legal conclusion, a court may apply one of three levels of deference to the agency's interpretation of the law:

First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the [law], the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.

Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992) (citations omitted).

¶ 13. The association argues that our review should be de novo because the commission has not previously been called upon to define "fringe benefits" within the context of evaluating whether a qualified economic offer has been made under the "recent" amendments to WlS. Stat. § 111.70. In addition, the association claims that the commission's interpretation is in conflict with a judicial definition of "fringe benefits," and that there are "broader reasons" for us to give little if any weight to the commission's interpretation, given that, in the association's view, the commission "failed to consider the extraordinarily damaging impact of its interpretation ... on the union and its bargaining rights." See West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 14-15, 357 N.W.2d 534 (1984).

¶ 14. The commission and the district both respond that the commission's conclusion that preparation time is not a "fringe benefit" within the meaning of the qualified economic offer provision is entitled to great weight deference from this court. In support, they point to the commission's experience and specialized knowledge in administering WlS. STAT. § 111.70 in general, and the qualified economic offer provisions in particular; to the fact that the commission has enacted rules regarding the implementation of the qualified economic offer provisions; and to the need for uniformity and consistency which deference to the commission's interpretation and application of the qualified economic offer legislation will promote. Both respondents acknowledge, however, that the dispute over the meaning of the term "fringe benefits" in the present context is "very nearly" an issue of first impression, and argue in the alternative that the commission's ruling is entitled to at least "due weight" deference. We agree with the latter argument.

¶ 15. There can be no question that the commission for oyer two decades has, at the legislature's direction, administered the statutes relating to municipal employment relations. Also, since the enactment of the qualified economic offer amendments in 1993, it has engaged in rulemaking and issued declaratory rulings interpreting and applying the new provisions. The commission has consistently determined in prior rulings that teacher preparation time is primarily a matter of educational policy and management, and is thus not a mandatory subject of bargaining. Thus, as we discuss below, we have little difficulty granting great weight deference to the commission's conclusion that, on the present facts, the district had a duty to bargain only the impact of its decision to curtail the amount of preparation time from that previously allowed in its memorandum of understanding with the association, but not the preparation time allotment itself. See West Bend Educ. Ass'n, 121 Wis. 2d at 13.

¶ 16. If we were to likewise grant great weight to the commission's interpretation of the term "fringe benefits" in the qualified economic offer statute, we would accept its interpretation so long as its interpretation is "reasonable," even if the association's interpretation were more reasonable. See Ufe Inc. v. LIRC, 201 Wis. 2d 274, 287, 548 N.W.2d 57 (1996). Due weight deference, however, involves only the breaking of a tie between competing reasonable interpretations in favor of the agency's position. Id. at 286-87.

¶ 17. We are satisfied that the commission has considerable expertise in addressing fringe benefit issues in other contexts, and that it has gained experience in interpreting many aspects of the qualified economic offer provisions, through rulemaking and otherwise. See Racine Educ. Assn v. WERC, 2000 WI App 149, ¶ 20, 238 Wis. 2d 33, 616 N.W.2d 504, review denied, 2000 WI 121, 239 Wis. 2d 309, 619 N.W.2d 92 (2000) (No. 99-0765). The commission acknowledges, however, that it "has not been presented with numerous disputes involving Act 16's QEO amendments since the law went into effect in 1993." The present litigation presented the commission with its first opportunity to consider whether a district's unilateral reduction of teacher preparation time periods precludes it from having a qualified economic offer under WlS. STAT. § 111.70(1)(nc)1.a. No longstanding commission interpretation is at stake, and the question before us is thus "very nearly" one of first impression. Under the circumstances, we are content to affirm the commission's interpretation if it is reasonable, provided that an alternative interpretation is not more reasonable. See id. at ¶ 19.

¶ 18. We now apply this standard to the dispute at hand. The commission's conclusion that teacher preparation time is not a "fringe benefit" within the meaning of WlS. STAT. § 111.70(l)(nc)l.a is largely based on the. following syllogism: All "fringe benefits" are mandatory subjects of bargaining; teacher preparation time is not a mandatory subject of bargaining; therefore, teacher preparation time cannot be a "fringe benefit." The commission noted in its decision that in its rules implementing the qualified economic offer amendments, the definitional examples of "fringe benefits" include no permissive subjects of bargaining, but do include numerous mandatory subjects, such as retirement benefits and various forms of group insurance. The commission also surveyed its decisions interpreting the statute in question, other statutory references to "fringe benefits," and case law, and concluded that the term universally encompasses only mandatory subjects of bargaining, such as holidays, mileage reimbursement, sick pay, convention days, and the like.

¶ 19. The commission also noted that including a permissive subject of bargaining, such as preparation time, in the definition of "fringe benefit," would require the district to maintain existing educational policies or forfeit its opportunity to have a "qualified economic offer." It concluded that this would represent "the loss of employer control over matters primarily related to educational policy,", and that there was no evidence in the legislative history of the qualified economic offer amendments of "such a significant concept." Additionally, the commission noted that requiring the district to bargain the impact of any reduction in teacher preparation time, albeit without recourse to binding arbitration, was not "meaningless," given that (1) prior to 1978, the collective bargaining statute for non-protective employees did not provide for interest arbitration; and (2) the parties had agreed upon the preparation time memorandum in 1996, even though it was a permissive subject of bargaining and even though the qualified economic offer legislation was in effect.

¶ 20. We conclude that the commission's interpretation that "fringe benefits," as used in WlS. STAT. § 111.70(l)(nc)l.a, does not include teacher preparation time is reasonable. An agency's interpretation is reasonable if it does not directly contravene the words of the statute, if it is not clearly contrary to legislative intent, and if it has a rational basis. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). The commission's interpretation meets these criteria. The legislature has not defined "fringe benefits" in § 111.70(1), and nothing in the history of the legislation provided by the parties suggests an intent to include permissive subjects of bargaining within the term. We also deem the commission's analysis to be rationally based on the historical treatment of fringe benefits as mandatory subjects of bargaining, as contrasted to teacher preparation time, which has traditionally been deemed a permissive subject.

¶ 21. We turn now to the association's interpretation to see if it presents a more reasonable alternative to that of the commission. The association first points out that this court has established the definition of a "fringe benefit" as "an employment benefit granted by an employer that involves a money cost without affecting basic wage rates." Brown County Attorneys Ass'n v. Brown County, 169 Wis. 2d 737, 742-43, 487 N.W.2d 312 (Ct. App. 1992). It notes further that our Brown County opinion was published prior to the enactment of the qualified economic offer provisions, and thus, the legislature must be presumed to have knowledge of "the legal definition" of fringe benefits when it used the term in the new provisions. The association further claims that the provision of preparation time to teachers meets the Brown County definition because preparation time "is of substantial value" to teachers, and it represents a "cost" to the district. Finally, given the longstanding distinction between mandatory and permissive subjects of bargaining, the association agrees with the dissenting commissioner, who noted that if the legislature wished to limit the "fringe benefits" which must be maintained in order to effect a qualified economic offer to benefits that are mandatory subjects of bargaining, it could have easily said so. According to the association, because the legislature chose instead to focus on "economic" and "non-economic" issues in the qualified economic offer provisions, the commission "had no authority" to read in a mandatory-subject-of-bargaining limitation.

¶ 22. The association also makes several arguments grounded in what it sees as the purpose and intent of the legislature, as well as the public policy at stake, in the qualified economic offer provisions. It notes that the net effect of the commission's ruling in this case means that association members will be required to work longer hours for the same compensation because the district continues to expect teachers to perform all of the duties previously accomplished during preparation time. The association argues that the legislature expressly conditioned a district's ability to avoid binding interest arbitration on its maintenance of the status quo for employee benefits, and that to permit the district to "gut. the existing arrangements between the parties" and still avoid arbitration, violates both the language of the statute and the intent of the legislature.

¶ 23. The association points out that the commission has previously recognized the "importance of interest arbitration to meaningful bargaining," given its members' lack of a right to strike. It thus argues that the commission's present interpretation, in the words of the dissenting commissioner, "is simply unfair ... [TJeachers are peremptorily stripped of their previous legal right to arbitrate the economic impact of the loss of their benefit without any compensatory recourse . . . [which is] in total disharmony with apparent legislative efforts to create a balanced quid pro quo." Finally, the association asserts that its interpretation does not hamstring a school board's ability to set educational policy — the district may still choose to reduce the number of preparation periods it previously provided to teachers, but if it does so, it may not avail itself of the qualified economic offer amendments to avoid binding arbitration on economic issues in the event of a bargaining impasse.

¶ 24. We conclude that the association's proffered interpretation is also reasonable. It focuses on the language of the statute, arguably relevant case law, and colorable claims as to the legislative purpose and intent behind the qualified economic offer provisions. We cannot conclude, however, that an interpretation that the legislature intended to require that, in order to have a qualified economic offer, a school district must maintain the status quo on matters beyond those fringe benefits that have traditionally been deemed mandatory subjects of bargaining, is more reasonable than the commission's conclusion that it did not so intend.

¶ 25. First, we do not agree with the association that our definition of "fringe benefits" in Brown County Attorneys Ass'n v. Brown County, 169 Wis. 2d 737, 487 N.W.2d 312 (Ct. App. 1992), necessarily informs us of the legislature's intent when it used the term in WlS. STAT. § 111.70(l)(nc). The collective bargaining rights of municipal employees under § 111.70 were not before us in Brown County, and the statute we construed was one of very limited scope dealing with the transition of prosecutors from county to state employment in 1990. Wisconsin Stat. § 978.12(6) provides that prosecutors making the transition to state employment could opt to remain covered by a county's fringe benefit plan in lieu of state benefits. Id.; Brown County, 169 Wis. 2d at 740. We reversed a circuit court declaratory judgment that legal education seminar fees, bar dues, mileage reimbursement, beeper pay, and a casual day/disability plan were not fringe benefits within the meaning of § 978.12(6). Brown County, 169 Wis. 2d at 740. In doing so, we applied a dictionary definition of the term (" '[A]n employment benefit... granted by an employer that involves a money cost without affecting basic wage rates,'" see id. at 742-43 (citation omitted)) and concluded that each of the disputed items came within it. Although we accept the association's assertion that we must presume the legislature is aware of judicial interpretations of a statute when amending that statute, see State v. Rosenburg, 208 Wis. 2d 191, 196 ¶ 10, 560 N.W.2d 266 (1997), we reject the notion that the same presumption applies with respect to the judicial interpretation of a different statute in a context not relevant to the new legislation under consideration.

¶ 26. Even if our Brown County definition were controlling, however, we are not convinced that "teacher preparation time" would necessarily come within it. We note first, as did the commission in its decision, that the specific items under consideration in Brown County (reimbursement for legal education, bar dues, and mileage; beeper pay; a casual day/disability plan) all primarily relate to wages, hours and conditions of employment, and would thus be mandatory subjects of bargaining. We concluded in our Brown County opinion that all "fringe benefits . . . are essentially 'compensation' for work done." Id. at 743. It makes little sense to talk in terms of teacher preparation time as being "compensation for work done." As the district notes, at issue in Brown County was whether the county's past practice of paying prosecutors for being on call during evenings, weekends and holidays was a "fringe benefit," as opposed to being part of their "basic wage rate." See id. at 742-43. The fringe benefit question did not involve whether the county (or the state) could require prosecutors to be on call, or how much on-call time could be demanded of them, which are closer analogues to the present dispute over the amount of preparation time the district will allow during a class day.

¶ 27. Finally, we acknowledge the important and significant role that binding interest arbitration has played in the resolution of municipal employment disputes in Wisconsin over the past two decades. The fact remains, however, that in the 1993 amendments, the legislature sought to limit the occasions that an employer of "school district professional employees" can be required to submit contract disputes to interest arbitration. We conclude that it is not more reasonable to conclude that in so doing, the legislature intended to require an employer to maintain the status quo in matters not subject to mandatory bargaining, than to conclude, as did the commission, that the legislature's fringe benefit maintenance requirement extends only to matters traditionally subject to mandatory bargaining. If it is true, as the association argues, that the determination at issue involves significant policy judgments relating to the implementation and administration of the qualified economic offer amendments to Wis. Stat. § 111.70, that is all the more reason for us to defer to the commission's interpretation. See Ufe Inc., 201 Wis. 2d at 286 ("The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question.").

¶ 28. The association argues in the alternative that, if we conclude the commission did not err in determining that an item must be a mandatory subject of bargaining in order to be a "fringe benefit" under WlS. Stat. § 111.70(l)(nc), we must then conclude that the commission erred when it determined that the teacher preparation time at issue in the present case was not a mandatory subject of bargaining. We disagree.

¶ 29. The commission noted that it has consistently ruled that the amount and allocation of teacher preparation time is a permissive subject of bargaining. It then relied on the testimony of the district's superintendent as support for its conclusion that

the amount of preparation time provided to teachers during the workday directly impacts on fundamental educational policy issues such as: (1) how many and what' types of classes can be offered to students; (2) how will existing school buildings be used; and (3) how should the student day be structured.

As we have noted, the commission's determination that a particular item is not a mandatory subject of bargaining is generally entitled to great weight deference from a reviewing court. Blackhawk Teachers' Fed'n v. WERC, 109 Wis. 2d 415, 421-24, 326 N.W.2d 247 (Ct. App. 1982). The commission's determination in this case that the teacher preparation time at issue is a permissive subject of bargaining satisfies all four of the criteria identified by the supreme court for granting great weight deference to an agency's legal ruling. See Harnischfeger Corp., 196 Wis. 2d at 660 ("(1) [T]he agency was charged by the legislature with the duty of administering the statute; (2). . . the interpretation of the agency is one of long-standing; (3) . . . the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) . . . the agency's interpretation will provide uniformity and consistency in the application of the statute."). The association does not seriously argue otherwise, and in fact concedes that "there may be greater deference due" the commission's determination regarding whether preparation time is a mandatory or permissive subject of bargaining than is due its interpretation of "fringe benefits."

¶ 30. The association notes, however, that the commission has also consistently determined employee "break periods" to be a mandatory subject of bargaining. It argues that, on the present record, teacher break periods are the real issue, not the structuring of a student's day. The association points to testimony from the district's superintendent that teachers may use preparation time any way they choose, including spending time in the teacher's lounge, and to his testimony that reducing teacher preparation periods represents a cost savings to the district because it reduces the need to hire additional staff to cover time with students. Thus, in the association's view, preparation time is in reality "break time," that its reduction directly affects the hours a teacher must- work, and that the issue is therefore primarily related to hours and conditions of employment. As a mandatory subject of bargaining, the teacher preparation time memorandum of understanding would thus, according to the association, meet the commission's test for a "fringe benefit" which the district must maintain in order for it to have a qualified economic offer under WlS. STAT. § 111.70(l)(nc).

¶ 31. Under the great weight deference standard of review, we will uphold the commission's determination that the teacher preparation time at issue is not a mandatory subject of bargaining if it has "any rational basis." See Blackhawk Teachers' Fed'n, 109 Wis. 2d at 424. The commission's ruling, if it is reasonable, must prevail regardless of whether the association proposes an alternative that is more reasonable. See Ufe Inc., 201 Wis. 2d at 286-87. We are satisfied that the commission's determination that the teacher preparation time at issue was not mandatorily bargainable has a rational basis.

¶ 32. First, the commission's present determination is consistent with its treatment of the issue in rulings spanning the past twenty-five years. More important, however, although the record establishes that teachers may exercise considerable discretion over how they choose to utilize preparation time, and further that maintaining the practices set forth in the memorandum has cost implications for the district, the district also presented testimony that the number of preparation periods in a class day has significant impacts on the number of courses the district may offer, its provision of library and guidance services, and the possible restructuring of a student's day. In short, we conclude that the commission engaged in a proper balancing of the impacts of teacher preparation time on educational policy, as opposed to its impact on teachers' hours and conditions of employment, and reached a rationally-based conclusion that the former outweighed the latter.

CONCLUSION

¶ 33. For the reasons discussed above, we affirm the circuit court's order.

By the Court. — Order affirmed.

       The relevant provisions of WlS. Stat. § 111.70, the Municipal Employment Relations Act, are quoted and discussed below. All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       The association makes an alternative argument challenging this determination, and we discuss the matter further below.

       The commission was careful to distinguish a policy decision regarding the amount of preparation time to be allowed, which it concluded was not a "fringe benefit," from the impact of the decision on teachers, which the commission expressly held was mandatorily bargainable. Because the impact proposal was an "economic issue," however, the commission determined that it was not subject to interest arbitration in light of the district's qualified economic offer. See WlS. STAT. § 111.70(4)(cm)5s.

        See Racine Unified Sch. Dist., Dec. No. 28859-B (WERC, 3/98); Milwaukee Bd. of Sch. Dirs., Dec. No. 20093-A (WERC, 2/83); Oak Creek Sch. Dist, Dec. No. 11827-D (WERC, 9/74).


text:
    State of Wisconsin ex rel. Mark Shimkus, Petitioner-Appellant, v. Kenneth Sondalle, Warden, Fox Lake Correctional Institution, Respondent-Respondent.
    Court of Appeals

      No. 00-0841.

      Submitted on briefs September 12, 2000.

    Decided November 30, 2000.

    2000 WI App 262
    (Also reported in 622 N.W.2d 763.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Mark Shimkus, pro se.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jane A. Cronan, assistant attorney general.
    Before Vergeront and Deininger, JJ., and William Eich, Reserve Judge.
   VERGERONT, J.

¶1. Mark Shimkus, an inmate at Fox Lake Correctional Institution, appeals an order dismissing his petition for certiorari review of a prison disciplinary decision because the petition was not filed within forty-five days of his receipt of the decision as required by WlS. STAT. § 893.735 (1997-98). Shimkus contends in his appellate brief, as he did in his circuit court brief, that he put the certio-rari petition, along with a request for disbursement of the filing fee from his account and postage, in the institution mailbox on the thirty-sixth day from the date of his receipt of the decision. He argues that, because he had no control over the filing of the materials after that date, he has complied with the statute.

¶ 2. Since the parties have completed briefing in this case, we have decided Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409, in which we held the forty-five-day time limit is tolled when a prison inmate places a certiorari petition in the institution mailbox for forwarding to the circuit court. However, we did not decide in Shimkus what proof an inmate needs to present to the circuit court when the inmate wishes to invoke the tolling rule of Shimkus. We now hold when an inmate wishes to invoke that tolling rule, the inmate must present proof, by affidavit or other evidentiary submission, of the date on which he or she placed the certiorari petition in the institution mailbox. Because Shimkus did not submit an affidavit, but relies on unsworn assertions in his briefs, and because the disbursement request form he submitted is not sufficient to prove that date, we conclude Shimkus has not established he deposited his petition in the institution mailbox before the expiration of the forty-five days. We therefore affirm.

BACKGROUND

¶ 3. The relevant allegations in Shimkus's petition for writ of certiorari are as follows. After a hearing on July 20, 1999, Shimkus was found guilty of a violation of Wis. Admin. Code § DOC 303.24, disobeying orders, and Wis. Admin. Code § DOC 303.28, disruptive conduct. He appealed to the warden, alleging certain errors in the proceeding, and the warden affirmed the disciplinary committee's decision. He then filed complaints with the Institution Complaint Review System, which were dismissed by the secretary of the Department of Corrections on September 21,1999.

¶ 4. Shimkus's petition is stamped as received in the circuit court for Dodge County on November 8, 1999, and stamped as filed in the circuit court on November 16,1999.

¶ 5. The circuit court issued a writ ordering the State to return the record of the institutional proceedings. In response, the State moved to quash the writ on the ground that the certiorari petition was not timely filed. In his brief opposing the motion, Shimkus asserted that on October 27, 1999, he placed his certio-rari petition in the institution mailbox, accompanied by a request to include in the mailing the filing fee for the action. Shimkus filed with his brief a carbon copy of a disbursement request, which requested a check for a filing fee in the amount of $122 be paid to the Dodge County Clerk of Courts. Shimkus's name is in the signature box, and under "date signed" is written "10/27/99." In the portion to be completed by department staff, there is a signature under "disbursement approved by" and "11/2/99" under "date signed." Under "date paid" is written "11/3/99." Shimkus argued the circuit court should consider the date he placed the petition and other materials in the institution mailbox as the date he filed the petition in circuit court, and he referred to the disbursement request as proof that date was October 27,1999.

¶ 6. In reply the State contended Shimkus had offered no proof of when he placed the petition in the institution mailbox. In addition, the State objected to consideration of any date other than November 16, 1999, as the date of filing.

¶ 7. The circuit court concluded Shimkus had not filed the petition within forty-five days from September 21,1999, and therefore quashed the writ and dismissed the petition.

DISCUSSION

¶ 8. On appeal Shimkus renews his argument that we should consider the date on which he placed the certiorari petition in the institution mailbox to be the date of filing within the meaning of Wis. Stat. § 893.735(2) and (3). He also argues that date was October 27, 1999, and he therefore met the statutory requirement that the petition be filed with the court within forty-five days from the date of the decision.

¶ 9. The interpretation of a statute and its application to a known set of facts presents a question of law, which we review de novo. Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673 (1985).

¶ 10. We have already addressed Shimkus's first argument in another action brought by him. We concluded in Shimkus that when an inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five-day time limit in WlS. STAT. § 893.735(2) is tolled. Shimkus, 2000 WI App 238 at ¶ 14. We therefore turn to Shimkus's second argument — that he deposited his petition in the institution mailbox on October 27, 1999, well within the forty-five days of September 21, 1999, the date of the secretary's decision. Shimkus points to the disbursement request form as proof of the date on which he placed the petition in the institution mailbox.

¶ 11. The State makes two responses to this argument: first, the disbursement request form is not authenticated within the meaning of WlS. STAT. § 909.01, and, therefore, we may not consider it; and, second, even if we consider that document, it does not prove the date on which Shimkus deposited his petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts. In Shimkus we addressed in a footnote the State's authentication argument with respect to the disbursement request form in that case stating:

FN2. The State suggests in its brief that we cannot consider the disbursement authorization to which Shimkus refers because it is "unauthenticated." We note in this regard, however, that the record, presumably approved by both parties, includes a copy of a "Disbursement Request" dated September 6, 1999. And although it is not "authenticated," as the State says, it is a Department of Corrections form, it contains an approval signature, it requests that the institution pay the sum of $122 out of Shimkus's account for "Filing fee for certio-rari" to the Dodge County Clerk of Courts, and it indicates that a check in that amount was issued on September 20,1999.

Shimkus, 2000 WI App 238 at ¶ 3 n.2. However, we did not address in Shimkus the second argument the State makes here: the disbursement request form, even if admissible, is not proof of the date on which Shimkus deposited the petition in the institution mailbox.

¶ 12. We agree with the State that the disbursement request form does not show when Shimkus deposited his petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts. The form is evidence that on October 27, 1999, Shimkus signed a request for a check drawn on his account in the amount of $122 payable to the Dodge County Clerk of Courts for the filing fee for a certiorari petition; and that an officer approved the disbursement on November 2, 1999, and "paid by check" on November 3, 1999. Shimkus asks us to assume from this form that October 27, 1999, is the date on which he deposited the certiorari petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts, but this form provides no basis for deciding that as a matter of law he did so. This court may not find facts, nor draw inferences from evidence when there is more than one reasonable inference. State v. Friday, 147 Wis. 2d 359, 370-71, 434 N.W.2d 85 (1989). It may be reasonable to infer from the form that Shimkus deposited his petition in the institution mailbox on October 27, 1999, along with the disbursement request and asked the prison officials to forward the certiorari petition, along with the requested check, to the Dodge County Clerk of Courts, but that is not the only reasonable inference. It is also reasonable to infer Shimkus deposited the certi-orari petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts after the officer approved the disbursement and made out the check, that is, on or after November 3, 1999.

¶ 13. In order for Shimkus's petition to be timely under the Shimkus rule, he must have deposited it in the institution mailbox on or before November 5,1999. Without any evidence other than the disbursement request form, we cannot conclude as a matter of law that Shimkus did so. It is undisputed the petition was received by the Dodge County Clerk of Courts on November 8, 1999, and we take judicial notice under WlS. STAT. § 902.01 that that day was Monday. Assuming Shimkus must have placed the petition in the institution mailbox before Sunday, November 7 in order for it to arrive on November 8 at the office of the •Dodge County Clerk of Courts, we are nevertheless not able to conclude as a matter of law that he did not do so on November 6. It may be that institution regulations or procedures appropriate for judicial notice under § 902.01 would supply the missing evidentiary basis, but Shimkus has not presented any to us.

¶ 14. Shimkus implicitly asks that we accept his unsworn assertion in his briefs as evidence of the date on which he placed the petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts. We are persuaded we should not do so. With the enactment of WlS. STAT. § 893.735, the legislature shortened the deadline for filing petitions for writs of certiorari from the six months that had previously governed at common law to forty-five days. State ex rel. Collins v. Cooke, 2000 WI App 101, ¶ 4, 235 Wis. 2d 63, 611 N.W.2d 774. The much shorter forty-five-day period, and the precise definition in § 893.735(2) and (3) of when the forty-five days begins and ends, indicate a legislative intent to impose short and precise time limitations on inmates' certiorari actions. We have tolled the forty-five-day time period in Shimkus to take into account the practical limitations on inmates; however, we conclude it is both fair to inmates and more consistent with legislative intent to require an inmate who wishes to assert the Shimkus tolling rule present proof of the date on which he or she placed the petition in the institution mailbox. An unsworn assertion in a brief is not evidence, and, we conclude, is not sufficient to entitle an inmate to the benefit of the Shimkus tolling rule.

¶ 15. We hold that an inmate who wishes to assert the Shimkus tolling rule in response to a timeliness challenge must present evidence of the date on which he or she deposited the petition in the institution mailbox for forwarding to the clerk of courts for filing. An affidavit setting forth what the inmate did and when, signed by the inmate and notarized by a person authorized by law to administer oaths, see Wis. Stat. § 887.01, is one type of such evidence, which is practicable for an inmate acting pro se to produce and file with the court. There are undoubtedly other methods of proving the critical date, but we do not undertake to present an exhaustive list here.

¶ 16. We have considered whether it is fair to Shimkus to apply in this case the requirement that he present evidence of the date on which he deposited the petition in the institution mailbox, and we conclude that it is. Shimkus's brief in opposition to the State's motion in the circuit court shows he understood that, under his theory of the law, the date on which he deposited the petition in the institution mailbox was the critical date for determining whether it was timely filed. He may at that time have believed the copy of the disbursement request form was evidence of that date, but, when the State in its reply brief asserted it was not, Shimkus was put on notice the form might not adequately prove the critical date. He had the opportunity then to submit an affidavit supplying additional facts. Alternatively, he might have submitted prison regulations or procedures, of which the court could take judicial notice, that would, coupled with the form,' establish the date on which he signed and dated the disbursement request was also the date on which he put the certiorari petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts. However, Shimkus did neither. The result is we cannot conclude from the disbursement request form that Shimkus placed the certiorari petition in the institution mailbox on or before November 5, 1999, for forwarding to the Dodge County Clerk of Courts.

¶ 17. Since Shimkus has not established that he comes within the Shimkus tolling rule, and since it is undisputed the certiorari petition was not received by the Dodge County Clerk of Courts until after November 5, 1999, we affirm the circuit court's order dismissing the petition on the ground that it was not timely filed.

By the Court. — Order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version, unless otherwise noted.

       The State also contended dismissal was appropriate because Shimkus had not served the State with the required documents proving he had exhausted his administrative remedies. The circuit court did not address this argument, and we do not, because it is not necessary to a resolution of the appeal.

       Wisconsin Stat. § 893.735 provides in part:
      Action by prisoner contesting a governmental decision. (1) In this section, "prisoner" has the meaning given in s. 801.02(7)(a)2.
      (2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.

        (3) In this section, an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.

       In Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409, we decided to apply the rationale in Houston v. Lack, 487 U.S. 266 (1988), because we found that rationale persuasive: unlike litigants who are not incarcerated, inmates are not able to file documents with the court directly and have no control over the documents once they are delivered to the prison officials for forwarding to the court. Shimkus, 2000 WI App at ¶ 13. However, we did not decide that the deposit in the institution mailbox constituted "filing" within the meaning of WlS. STAT. § 893.735(2) and (3) because we recognized that there were requirements for filing a petition for certiorari in addition to the time limitation — such as paying a filing fee or establishing the right to a waiver of the fee. See Shimkus, 2000 WI App at ¶ 13-14. We therefore concluded that deposit of the petition in the institution mailbox for forwarding to the circuit court tolled the forty-five-day time limit but did not prevent the court from rejecting the petition for other defects, such as the failure to pay the required fee or establish the right to waiver of the fee. Id. at ¶ 14.

       Wisconsin Stat. § 909.01 provides:
      General provision. The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

       In contrast, when there is only one reasonable inference to be drawn from the evidence, the drawing of that inference is a question of law and an appellate court may draw it. Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 570-71, 360 N.W.2d 65 (Ct. App. 1984).

       We observe that Shimkus, acting pro se in this case, filed a petition that is properly signed and notarized.

       We do not suggest that submission of such evidence by the inmate is conclusive. As we recognized in Shimkus, the institution may submit evidence to dispute the date on which, according to the inmate's submission, he or she placed the certi-orari petition in the institution mailbox. Shimkus, 2000 WI App 238 at ¶ 6.

       Because of this disposition, we do not address Shimkus's argument that November 8, 1999, rather than November 16, 1999, is the date we should consider to be the date the petition was "filed" under WlS. STAT. § 893.735(3).


author: ANN WALSH BRADLEY, J. DIANE S. SYKES, J.

text:
    Frank Musa, Plaintiff-Appellant-Petitioner, v. Jefferson County Bank, Defendant, James V. Buelow, Defendant-Respondent, Milwaukee Mutual Insurance Company, Intervenor.
    Supreme Court

      No. 98-2738.

      Oral argument October 31, 2000.

    Decided January 17, 2001.

    2001 WI 2
    (Also reported in 620 N.W.2d 797.)

      For the plaintiff-appellant-petitioner there were briefs by Sean N. Duffey, Richard H. Schulz and Schulz & Duffey, S. C., Milwaukee, and oral argument by Sean N. Duffey.

    For the defendant-respondent there was a brief by J. Paul Neumeier, Jr., Raymond E. Krek and Krek & Associates, S.C., Jefferson, and oral argument by J. Paul Neumeier, Jr.

   ANN WALSH BRADLEY, J.

¶1. The petitioner, Frank Musa (Musa), seeks review of a published decision of the court of appeals affirming the circuit court's order to set aside a jury's award of damages against the respondent, James V. Buelow (Buelow). The jury awarded Musa $4,000 in compensatory damages for mental health treatment expenses and $50,000 in punitive damages.

¶ 2. Musa asserts that the court of appeals improperly extended the substantial other damages requirement of Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), to recovery of mental health care expenses in an action for intentional interference with a contractual relationship. Buelow advances that even if the court of appeals erred by such an extension, the circuit court's decision must be upheld because the jury's award of special damages is not supported by an award of general damages and because the mental health treatment expenses are subject to a requirement of foreseeability. We decline here to extend the substantial other damages requirement and we reject Buelow's arguments requiring general damages and foreseeability. Accordingly, we reverse the court of appeals and remand to the circuit court.

¶ 3. This case presents us with questions of law regarding a jury's award of compensatory and punitive damages. The relevant facts are undisputed. Musa formerly owned the Jefferson House hotel in Jefferson, Wisconsin. He mortgaged the property through the Jefferson County Bank (bank), which had the right to approve any sale under the mortgage. Buelow was the bank officer responsible for Musa's account.

¶ 4. In the early 1980s, Musa attempted to sell the hotel. In the process he engaged in discussions and negotiations with numerous prospective buyers, including Tzelal Aliu. No sale was completed, and Musa eventually lost the Jefferson House to the bank through foreclosure.

¶ 5. In 1989 Musa sued Buelow and the bank, alleging numerous causes of action. Through motions to dismiss, summary judgment, appeal, and remand, Musa's case was winnowed to the theories of liability that were tried to the jury. Musa proceeded to trial on the claims that both the bank and Buelow, personally, were liable for intentional interference with the contractual relationship between Musa and several potential buyers, including Aliu, and that the bank had breached its duty of good faith. Because the factual basis of Musa's claims is not relevant to this opinion, it suffices to say that at trial Musa presented evidence sufficient to convince the jury of both Buelow's and the bank's liability.

¶ 6. This appeal concerns only the damages awarded by the jury on the claim that Buelow tor-tiously interfered with Musa's contractual relationship with Aliu. As damages for Buelow's tortious interference, the jury awarded Musa $4,000 in compensatory damages for mental health treatment expenses and $50,000 in punitive damages. In answering the special verdict, the jury did not award Musa any damages for his pecuniary loss of benefits on the contract or for his emotional distress.

¶ 7. On the claim that the bank breached its duty of good faith, the jury assessed $385,200 for Musa's pecuniary loss of benefit on the Aliu contract. However, the bank is not a party to this appeal. Neither the claims against it nor the damages for which it is liable are at issue.

¶ 8'. Upon Buelow's post-verdict -motion, the circuit court set aside the damages assessed against Buelow on the Aliu claim. The court offered two justifications for vacating the $4,000 compensatory damage award. First, the court applied the foreseeability requirement for consequential damages arising from a breach of contract and concluded that the mental health care expenses were not foreseeable. Second, the court stated that it could not find authority for awarding consequential damages in the absence of damages for a pecuniary loss of benefits on the Aliu contract. Having set aside the compensatory award, the court concluded that the punitive damages must likewise be set aside.

¶ 9. Musa appealed and the court of appeals affirmed. Initially the court of appeals affirmed on the grounds that the mental health treatment expenses were not foreseeable. However, the court withdrew that opinion and affirmed on alternative grounds.

¶ 10. In its published opinion, the court of appeals concluded that the compensatory damage award failed because the "substantial other damages" requirement of Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), for recovery of emotional distress damages in the intentional tort context applies with equal force to damages for mental health care treatment expenses. The court extended the Anderson requirement because it concluded that a plaintiff must necessarily establish "severe emotional distress" in order to recover mental health treatment costs. Thus, the court reasoned, the award implicates the same policy concerns underlying the Anderson substantial other damages requirement.

¶ 11. Because the jury awarded Musa no other compensatory damages with regard to Buelow, the court of appeals concluded that the Anderson requirement was not met. The court's decision to vacate the $4,000 award left Musa with no compensatory damage award against Buelow, and thus the punitive damages were invalid.

¶ 12. Musa asserts that the court of appeals improperly extended the substantial other damages requirement of Anderson to recovery of mental health care expenses. In response, Buelow argues that the substantial other damages requirement is applicable and also asks us to uphold the decision to set aside the compensatory damage award on two other grounds. First, he argues that the mental health treatment expenses, as special damages, are not recoverable in the absence of an award of general damages. Second, he argues that the court should employ a foreseeability requirement found in the Restatement (Second) of Torts § 774A to the mental health care treatment expenses. The fate of the punitive damage award hinges on the validity of the compensatory damage award.

¶ 13. Each of the issues raised by the parties presents us with a question of law. We review such questions independently of the determinations rendered by the circuit court and the court of appeals. Miller v. Thomack, 210 Wis. 2d 650, 658, 563 N.W.2d 891 (1997).

¶ 14. The first question we address is whether recovery of damages for mental health care treatment expenses under a theory of intentional interference with contract is subject to a requirement of substantial other damages. We conclude that recovery of these expenses is not contingent upon recovery of such other damages.

¶ 15. In Anderson v. Continental Insurance Co., this court explained that for an insured to recover emotional distress damages in a bad faith action against an insurer, the plaintiff must "plead and prove substantial damages aside and apart from the emotional distress itself and the damages occasioned by the simple breach of contract." 85 Wis. 2d at 695-96. While the focus of Anderson was on the bad faith cause of action, the court also stated that for intentional torts, in general, recovery of emotional distress requires "substantial other damages in addition to damages for emotional distress." Id. at 694.

¶ 16. In Bauer v. Murphy, the court of appeals applied the substantial other damages requirement to an action for intentional interference with a contractual relationship. 191 Wis. 2d 517, 534-35, 530 N.W.2d 1 (Ct. App. 1995). Thus, pursuant to Bauer, an award of emotional distress damages in a tortious interference case will not survive in the absence of substantial other damages.

¶ 17. In the case at hand, however, the jury did not award Musa emotional distress damages. It awarded him damages for mental health treatment expenses. Musa argues that this distinction renders the rule of Anderson inapplicable. Buelow, echoing the court of appeals' reasoning, argues that the policy reasons underlying the Anderson substantial other damages requirement apply equally to mental health treatment expenses and emotional distress damages. We agree with Musa and refuse to extend the substantial other damages requirement to the recovery of mental health care treatment costs.

¶ 18. Requiring substantial other damages as a prerequisite to the recovery of mental health treatment expenses would require us to treat such expenses as a class apart from other medical, hospital, and related expenses. While we have never specifically held that recovery of mental health treatment costs is subject to the same standards as recovery of other health care expenses, Wisconsin courts have never treated mental health treatment expenses differently than other health care costs.

¶ 19. In order to recover mental health care expenses, or any health care expenses for that matter, a plaintiff must bring forth evidence that the charges were reasonably and necessarily incurred for treatment of injuries or conditions arising from the occurrence which is the subject of the action. See Lautenschlager v. Hamburg, 41 Wis. 2d 623, 630, 165 N.W.2d 129 (1969); see also Wis JI — Civil 1756. Thus, while Buelow contends that there is a "qualitative difference" between mental health treatment and other forms of medical care, we find no legally significant differences in the context of recovery of medical expenses.

¶ 20. Moreover, mental health treatment expenses do not implicate the policy concerns that have caused courts to exercise reserve in the context of emotional distress damages and which justify the substantial other damages requirement. The difficulty in establishing the authenticity of a claim of emotional distress and the fear of unlimited liability on the part of the tortfeasor have historically led courts to place impediments in the way of a plaintiffs access to emotional distress damages. Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 639, 655, 517 N.W.2d 432 (1994).

¶ 21. We have no reason to believe that the authenticity of mental health treatment expenses poses a problem given the likely existence of documentation of those expenses. Likewise, we note that a tortfeasor's liability for mental health treatment expenses is not without limits. Such expenses are submitted in a specific dollar amount and must be established to be both reasonable in amount and necessary.

¶ 22. While the court of appeals concluded that the policy concerns underlying the substantial other damages requirement were implicated in this case, it did so only because it misconstrued what is needed to prove mental health treatment costs in an action for tortious interference with contract. The court injected a requirement that the plaintiff establish "severe emotional distress" into the tried and true formula for recovery of medical expenses.

¶ 23. While severe emotional distress is required to recover emotional distress damages in some contexts, e.g., Anderson, 85 Wis. 2d at 696, no Wisconsin court has ever held that emotional distress is a prerequisite to recovery of mental health care expenses. Indeed, requiring proof of emotional distress to recover mental health care treatment costs would be akin to requiring a plaintiff to prove pain and suffering in order to recover other medical expenses to treat a physical injury. However, we long ago rejected the notion that the law required such proof. Dickman v. Schaeffer, 10 Wis. 2d 610, 616, 103 N.W.2d 922 (1960).

¶ 24. Additionally, the parties engage in an ancillary debate over whether an award of mental health care costs might itself constitute substantial other damages supporting an award of emotional distress damáges. Buelow argues that if an award of mental health care expenses can itself constitute substantial other damages, fraudulent claims of emotional distress damages will become more common. He argues that in the absence of a substantial other damages requirement for those costs, fraudulent plaintiffs will pursue intentional tort actions in which the only damages are mental health care expenses and emotional distress damages.

¶ 25. However, no Wisconsin case has held that mental health treatment expenses can satisfy the substantial other damages requirement. Indeed, the phrase "substantial other damages" has remained largely undefined and the few attempts to define the term have led to inconsistent results. See, e.g., Bauer, 191 Wis. 2d at 535 ("special damages"); Estate of Plautz v. Time Ins. Co., 189 Wis. 2d 136, 159, 525 NW.2d 342 (Ct. App. 1994) ("something more than 'nominal damages'").

¶ 26. Thus, the premise remains unproven, and because defining the scope of the substantial other damages requirement would require us to travel far afield from the determinative issues of this appeal, we leave the question for another day. Rather than altering the principles underlying recovery of medical expenses to address Buelow's hypothetical concerns, we will wait for a case in which emotional distress damages are actually awarded to address those concerns.

¶ 27. In sum, we disagree with the court of appeals' conclusion that recovery of mental health treatment expenses in an action, for intentional interference with a contractual relationship requires an award of substantial other damages. Having so concluded, we next turn to Buelow's alternative challenges to the award of compensatory damages.

¶ 28. Buelow argues that the award of mental health treatment costs is invalid because it violates the "general rule" that "a verdict for special damages without an allowance for general damages is improper." 22 Am. Jur. 2d Damages § 42 (1988). Although the terms are rather common in the parlance of attorneys, in recent decades this court has not placed much importance on the generic labels "general" and "special" damages. However, to address Buelow's argument, we will apply those terms to the present context.

¶ 29. The classification of compensatory damages. as either general or special damages is specific to the cause of action being discussed. General damages are broadly defined as

those losses which naturally, or necessarily, result from the defendant's wrongful conduct and the type of injury' the plaintiff sustained. . . .Stated otherwise, general damages are those damages which usually accompany the kind of wrongdoing alleged in the complaint....

1 Jerome H. Nates, et al., Damages in Tort Actions § 3.01[3][a] (2000). In a personal injury action, for example, this would describe pain and suffering. In the tortious interference with contract context, this most accurately describes the pecuniary loss of the benefits of the contract or prospective contract. The jury awarded Musa no such damages.

¶ 30. However, the jury did award Musa special damages. Such damages are generally defined as those that are the

natural, but not the necessary result of an alleged wrong. . . . Special damages are those damages, the amount and nature of which are peculiar to each individual plaintiff. . . .Among the items often classified as special damages are: the cost of medical care, the amount of lost wages or impairment of earning capacity.. . .

Id. Thus, Buelow correctly characterizes the mental health care bills for which the jury awarded Musa $4,000 as special damages. See also State v. Stowers, 177 Wis. 2d 798, 805, 503 N.W.2d 8 (Ct. App. 1993).

¶ 31. While some authorities may consider it a general rule that general damages are a prerequisite to an award of special damages, this is not the law of Wisconsin and has not been for some time. In Dickman, 10 Wis. 2d at 616, this court upheld a jury verdict in a personal injury action awarding both medical expenses and lost wages without an award for pain and suffering. Likewise, in Jahnke v. Smith, 56 Wis. 2d 642, 653, 203 N.W.2d 67 (1973), this court upheld a similar verdict awarding medical expenses without an award for pain and suffering. See also Staehler v. Beuthin, 206 Wis. 2d 610, 623, 557 N.W.2d 487 (Ct. App. 1996) (concluding that verdict awarding damages for medical expenses, but not for pain and suffering, was neither inconsistent nor perverse). Although we did not use the nomenclature of "general" or "special" damages, we rejected in each of these cases a challenge to a verdict awarding special damages, namely medical expenses and lost wages, in the absence of general damages, i.e., pain and suffering.

¶ 32. Our precedent thus clearly allows for the award of special damages in the absence of general damages. Accordingly, we find no reason to uphold the circuit court's decision to vacate the award of compensatory damages on this basis.

¶ 33. Buelow's other chállenge to the compensatory damage award is that the award of mental health treatment expenses is subject to a foreseeability requirement, which cannot be satisfied in this case. Buelow directs us to the Restatement (Second) of Torts § 774A, which imposes a foreseeability requirement on damages for "emotional distress or actual harm to reputation." For the same reasons that he offers in support of the substantial other damages requirement, he argues that we should apply principles of emotional distress damages to mental health treatment costs.

¶ 34. As we explained above, however, we refuse to treat the requirements for emotional distress damages as necessarily applicable to mental health treatment expenses. Therefore, even if we were to adopt and follow lockstep the Restatement section, we would reject the notion that the foreseeability provision is necessarily applicable to mental health treatment expenses. Accordingly, we do not subject the award of mental health treatment expenses to a foreseeability requirement grounded in the authority offered by Buelow.

¶ 35. We next turn to the matter of punitive damages. Our determination with respect to the compensatory damage dictates our punitive damage determination. Punitive damages cannot be awarded in the absence of other damages. Tucker v. Marcus, 142 Wis. 2d 425, 442-46, 418 N.W.2d 818 (1988). The circuit court and the court of appeals determined that the perceived failings of the compensatory damage award doomed the award of punitive damages, and Buelow suggests no other basis for the invalidity of the punitive damages. Because we have determined that the jury's award of compensatory damages is valid, the punitive damage award's sole deficiency has been cured. We therefore conclude that the $50,000 punitive damage award assessed by the jury must be reinstated.

¶ 36. Finally, we note that the dissent arrives at the wrong answer because it responds to the wrong question. We reiterate that the jury did not award Musa damages for emotional distress. It awarded him damages in this tort action for mental health care expenses. Yet the dissent frames the question and analyzes this case as though it were a claim for emotional distress.

¶ 37. No Wisconsin court has held that an award of mental health care expenses is the same as damages for emotional distress. Indeed, no Wisconsin court has ever held that recovery of damages for emotional distress is a prerequisite to recovery of mental health care expenses, and we decline to do so today.

¶ 38. In conclusion, we do not extend the substantial other damages requirement of Anderson to recovery of mental health treatment expenses in an action for intentional interference with a contract. We also reject the contentions that such an award is invalid in the absence of an award of general damages or that the Restatement (Second) of Torts § 774A necessitates that the mental health treatment expenses be foreseeable. The $4,000 compensatory damage award is valid, and as such there is no basis for striking the $50,000 punitive damage award. Accordingly, we reverse the court of appeals and remand the cause for entry of judgment in accordance with this decision.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

DIANE S. SYKES, J.

¶ 39. (dissenting). I respectfully dissent. The majority opinion broadly authorizes recovery of mental health treatment expenses in a claim for tortious interference with contract. It does so in a case in which no damages for mental distress were proven, and, indeed, no other compensatory damages of any kind were awarded against the defendant. This is contrary to the law governing recovery of emotional distress damages in the intentional tort context, as outlined in Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978).

¶ 40. The jury in this case found that defendant Buelow tortiously interfered with plaintiff Musa's prospective contract regarding the sale of a hotel. The jury did not, however, award any pecuniary (loss of contract benefits) or emotional distress damages against Buelow. Instead, it awarded an amount corresponding to Musa's mental health treatment expenses — $4,000—as consequential damages, plus $50,000 in punitive damages. The circuit court set aside the mental health treatment damages as unforeseeable and unsupported by any pecuniary damages. The circuit court then eliminated the punitive damages award since there were no longer any compensatory damages to support it. The court of appeals affirmed based upon Anderson.

¶ 41. In Anderson, this court recognized the tort of bad faith refusal to honor an insurance claim. In doing so, the court acknowledged the risks associated with the creation of a tort in the contract context, in particular, the danger of expanding the categories of allowable damages, since tort law is more liberal than contract as far as the types of recoverable damages are concerned. As a result, the court took pains to specify the rules of limitation applicable to recovery of damages for emotional injury in tort:

It is apparent. . .that another aspect of the in terrorem nature of an action for bad faith arises because it is an intentional tort. Intentional torts may in some circumstances result in not only compensatory damages, but also punitive damages and damages for emotional injury....
Some generalities in respect to damages for mental distress.. .are.. .[therefore] appropriate.
In negligent torts, mental distress is compensa-ble only when there is an accompanying or resulting physical injury. Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970). In intentional torts, substantial other damages in addition to damages for emotional distress are required. D.R.W. Corp. v. Cordes, 65 Wis. 2d 303, 222 N.W.2d 671 (1974). Where the tort is specifically that of the intentional infliction of emotional distress, no other damages need be alleged or proved. However, additional limitations are imposed on a cause of action for the intentional infliction of emotional distress. A plaintiff must prove that the purpose of the conduct was to cause emotional distress, that the conduct was extreme and outrageous, that it was the cause in fact of the plaintiff s injury, and that the plaintiff suffered an extreme disabling emotional response. McKissick v. Schroeder, 70 Wis. 2d 825, 832, 235 N.W.2d 686 (1975); Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963).
[T]he tort of bad faith falls within the second category described above, where substantial other damages in addition to the emotional distress are required if there is to be recovery for damages resulting from the infliction of emotional distress. In the bad faith cause of action against an insurance company, we therefore conclude that to recover for emotional distress. . .the plaintiff must plead and prove substantial damages aside and apart from the emotional distress itself and the damages occasioned by the simple breach of contract.
We [further] conclude. . .consistent with. . .McKissick and Alsteen, supra, that in no circumstances may a plaintiff recover for emotional distress, even when there are other accompanying damages, unless the emotional distress is severe. A recovery for emotional distress caused by an insurer's bad faith refusal to pay an insured's claim should be allowed only when the distress is severe and substantial other damage is suffered apart from the loss of the contract benefits and the emotional distress.

Anderson, 85 Wis. 2d at 694-96 (emphasis supplied).

¶ 42. I have quoted at some length from the Anderson opinion because I think the majority has strayed far from the rules it established for recovery of damages for emotional injury in an intentional tort claim. The substantial other damages requirement, and the requirement that the emotional injury be severe in order to be recoverable, exist to preclude recovery for insignificant, questionable, or feigned emotional injuries associated with intentional torts that otherwise have nothing to do with emotional distress or injury. Where the tort arises in the contract setting, the substantial other damages requirement is also a necessary bulwark against the wholesale erosion of the border between contract and tort law remedies.

¶ 43. The majority acknowledges that Anderson's substantial other damages rule was extended to tortious interference with contract claims in Bauer v. Murphy, 191 Wis. 2d 517, 534-35, 530 N.W.2d 1 (Ct. App. 1995). The majority does not overrule Anderson or Bauer, or otherwise circumscribe their application. Rather, the majority simply treats the mental health expenses award in this case as a routine medical and hospital special damages award, as if this were a garden-variety personal injury case instead of a tortious interference with contract claim. In other words, the majority characterizes the $4,000 mental health treatment award against Buelow as something somehow unconnected to an award for emotional injury. This characterization takes the award outside the confines of Anderson and Bauer altogether, thus avoiding the requirement of substantial other damages to support it.

¶ 44. This cuts the heart out of the substantial other damages requirement, clearing the way for the sorts of questionable emotional injury claims in intentional tort lawsuits that Anderson specifically sought to avoid. The majority states that "no Wisconsin court has ever held that emotional distress is a prerequisite to recovery of mental health care expenses." Majority op. at ¶ 23. Perhaps this is because the premise seems fairly self-evident. How can mental health treatment expenses be legally recoverable if there is no compensa-ble mental distress in the first place? This is not comparable to recovery of medical and hospital expenses in the absence of an award for pain and suffering in a personal injury action, for the simple reason that this is not a personal injury action. This is an economic tort, and the law specifies some limits on the recovery of damages for emotional injuries in this context.

¶ 45. The important prerequisite here is that set forth in Anderson: before any damages for emotional injury can be recovered in an intentional tort that does not have the infliction of emotional distress as its gravamen, there must be substantial other damage, proof of some significant harm stemming from the tort that is separate and apart from any claimed emotional injury. If there is such harm, then the law will recognize a collateral, causal emotional injury, assuming it is sevqre, as legitimate and compensable. If there is not, then the law will not allow recovery of damages related to emotional distress, on the theory that if the tortious conduct has caused no (or insubstantial) damage, then any emotional reaction to it does not deserve to be compensated.

¶ 46. And clearly, any expense incurred to treat emotional distress cannot itself satisfy the substantial other damages requirement. Anderson requires that the substantial other damages must be separate and apart from any damages attributable to emotional distress.

¶ 47. The court of appeals' decision in this case was not so much an extension of Anderson as a straightforward application of its principles. I agree with its analysis. The $4,000 consequential damages award against Buelow was properly set aside as unsupported by substantial other damages. This leaves the punitive damages award unanchored to any compensatory damages, and it too was properly set aside. See Tucker v. Marcus, 142 Wis. 2d 426, 431, 418 N.W.2d 818 (1988). Accordingly, I would affirm the court of appeals.

¶ 48. I am authorized to state that Justice JON P. WILCOX joins this dissenting opinion.

        Musa v. Jefferson County Bank, 2000 WI App 33, 233 Wis. 2d 241, 607 N.W.2d 349 (affirming the order and judgment of the Circuit Court for Jefferson County, James R. Kieffer, Judge).

       Wisconsin courts recognize a cause of action for intentional interference with a contractual relationship and intentional interference with a prospective contractual relationship. Cudd v. Croumhart, 122 Wis. 2d 656, 658—59, 364 N.W.2d 158 (Ct. App. 1985); see also Wis JI — Civil 2780. In this case, the special verdict asked the jury whether Musa had either a contract or a prospective contract with each of the prospective buyers. The jury was not required to specify which it found. For simplicity's sake, throughout the opinion we will simply refer to Musa's cause of action as one for intentional interference with a contractual relationship.

       The court also rejected Musa's argument that certain damages awarded to him vis-a-vis the bank should be used to support the damages awarded against Buelow. Musa has raised this argument before this court as well. However, because we reverse on different grounds, we need not decide the issue.

       One authoritative text on Wisconsin's law of damages explains the scope of recoverable medical, hospital, and related expenses:
      Recoverable items of damages include charges by medical doctors, osteopaths, chiropractors, psychologists, psychiatrists, and consultants whose services are requested by treating physicians. Recoverable items further include charges for hospitalization, nursing care, diagnostic tests, medications, therapy, medical appliances, domestic help, and transportation to and from health care providers.
      Russell M. Ware, ed., The Law of Damages in Wisconsin § 9.5 (2d ed. 1994 — 95) (emphasis added). Nothing in this text suggests that recovery of mental health treatment costs in a tort action is or should be treated any differently than recovery of other health care costs.

       In recent years the distinction has been discussed in a line of cases concerning victim restitution under Wis. Stat. § 973.20.
        E.g., State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999).
      In one such case, the court of appeals explained the rather limited significance of the distinction in the tort context:
      In tort law. . .concepts" of general and special damages have meaning primarily at the pleading stage of the action, where the question usually is one of "fair notice from the pleadings." As a result, the discussions in cases and texts generally focus on the need for specific allegations of injury in the complaint. 2 Harper & James, The Law of Torts sec. 25.5, at 1309 (1956).

        State v. Stowers, 177 Wis. 2d 798, 804, 503 N.W.2d 8 (Ct. App. 1993).

       Restatement (Second) of Torts § 774A states, in pertinent part:
      (1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for
      (a) the pecuniary loss of the benefits of the contract or the prospective relation;
      (b) consequential damages for which the interference is a legal cause; and
      (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.
      Restatement (Second) of Torts § 774A (1979).

       Buelow has cited only the Restatement provision in support of his argument that a foreseeability requirement applies to the award of damages for mental health treatment expenses. We recognize that there is a line of argument suggesting that a foreseeability requirement grounded in contract law applies to all consequential damages for which recovery is sought in an intentional interference with a contract claim. Indeed, this was the basis for the circuit court's decision and the court of appeals' withdrawn opinion. However, Buelow neither briefed nor argued the issue of foreseeability in such a manner, and therefore we do not address that line of reasoning.

       Musa argues in the alternative that the pecuniary damages award against Jefferson County Bank, Buelow's employer, should be sufficient to sustain the punitive damages award against Buelow. There is no authority for permitting a compensatory damages award against one defendant to support a punitive damages award against another.