author: N. PATRICK CROOKS, J.

text:
    Megal Development Corporation, Plaintiff-Respondent, v. Craig Shadof, d/b/a Spectrum Investments, and Susan Shadof, Defendants-Appellants.
    Supreme Court

      No. 2004AP1594-FT.

      Oral argument September 7, 2005.

      Decided November 8, 2005.

    2005 WI 151
    (Also reported in 705 N.W.2d 645.)

      For the defendants-appellants there were briefs by Todd C. Esser and Todd C. Esser & Associates, Milwaukee; and Henry E. Koltz and Schmidt, Darling & Erwin, Milwaukee, and oral argument by Todd C. Esser.

    For the plaintiff-respondent there was a brief by O. Thomas Armstrong, Roy L. Frange, Jr., Valerie L.

      Bailey-Rihn, Patrick J. Schoen and Quarles & Brady LLP, Milwaukee, and oral argument by Valerie L. Bailey-Rihn.

    An amicus curiae brief was filed by J. Bushnell Nielsen, Daniel Kelly, Krista J. Ebbens, and Reinhart Boerner Van Deuren S.C., Waukesha, on behalf of the Wisconsin Land Title Association.
   N. PATRICK CROOKS, J.

¶ 1. This appeal is before the court on certification from the court of appeals, pursuant to Wis. Stat. § 809.61 (Rule) (2003-04). Defendants Craig and Susan Shadof (Shad-ofs) appeal an order of the circuit court denying their application for satisfaction of a judgment and a judgment lien under Wis. Stat. § 806.19(4), where the underlying judgment had been discharged in bankruptcy. The Shadofs appealed, and the court of appeals certified the issue of whether § 806.19(4) requires the satisfaction of a judgment debt against a homestead, where the underlying judgment has been discharged in bankruptcy, yet the debtor's homestead equity exceeds the allowable homestead exemption, and where the debtor failed to seek avoidance of the judgment lien in the bankruptcy court. The court of appeals further raised the issue of whether, if § 806.19(4) does require the satisfaction of a judgment debt when the underlying judgment has been discharged in bankruptcy, the statute is in conflict with, and therefore preempted by, federal bankruptcy law.

¶ 2. We conclude that the circuit court erred in refusing to satisfy the judgment debt pursuant to Wis. Stat. § 806.19(4). The plain language of the statute unambiguously provides that when a proper application is received by the clerk and submitted to the judge for signature, the only thing required for satisfaction of a judgment debt and cessation of an associated judgment lien is that the underlying judgment has been discharged in bankruptcy. Further supporting our conclusion is the legislative history of the statute, as well as persuasive precedent discussed herein. We also conclude that § 806.19(4) is not in conflict with, and therefore not preempted by, federal bankruptcy law.

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¶ 3. The relevant facts are not in dispute. On May-18, 1994, Megal Development Corporation (Megal) obtained a small claims judgment for eviction and money damages against the Shadofs in the amount of $52,713.78. Pursuant to Wis. Stat. §§806.10(1), 806.15(1) and 815.20(1), the judgment subsequently became a lien upon the Shadofs' homestead property located in Waukesha County, Wisconsin.

¶ 4. In February 2003 the Shadofs filed for Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the Eastern District of Wisconsin. They included the Megal judgment as a dischargeable debt on Schedule D of their bankruptcy forms. On June 12, 2003, at the conclusion of the bankruptcy proceedings, Judge James E. Shapiro granted the Shadofs a Discharge of Debtor, which included a discharge of the debt to Megal. The Trustee in bankruptcy found that after subtracting the first and second mortgages, the homestead exemption, and the judgment lien from the value of the homestead, there was no money left in the estate to pay unsecured creditors. Therefore, the Trustee abandoned the property at which point it reverted to the Shadofs. Coming out of bankruptcy, the Shadofs' homestead equity exceeded the $40,000 homestead exemption.

¶ 5. During the bankruptcy proceeding, Megal filed an Objection to Debtor's Claim for Exemption on May 22, 2003, arguing that the Shadofs had equity in their homestead in excess of the $40,000 exemption. The bankruptcy court set aside Megal's objection as premature, because the Shadofs had not sought to avoid any portion of Megal's judgment lien. However, the bankruptcy court order specified that Megal retained the right to challenge any subsequent lien avoidance motion brought under 11 U.S.C. § 522(f)(2004).

¶ 6. On June 16, 2003, the Shadofs filed an application with the Waukesha County Circuit Court seeking an order satisfying the Megal judgment and the judgment lien pursuant to Wis. Stat. § 806.19(4). Circuit Court Judge Donald J. Hassin, Jr. signed an order satisfying Megal's judgment and associated judgment lien on June 20, 2003. That same day, Megal filed an objection to the Shadofs' application based upon the position that § 806.19(4) only permits satisfaction of judgments, and judgment liens, which have been discharged in bankruptcy. As a result, the circuit court vacated its previous order and scheduled the matter for further proceedings.

¶ 7. At the hearing on application for satisfaction, Megal argued that under Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773 (1992), a Chapter 7 bankruptcy proceeding discharges a person's in personam debt, but not the in rem judgment lien, which survives bankruptcy. Because the judgment lien had not been discharged, Megal maintained it was inappropriate to satisfy the lien under Wis. Stat. § 806.19(4). Megal asserted that the Shadofs could not obtain satisfaction of a debt under the statute when they possessed equity in their homestead in excess of the statutory exemption. The circuit court, Judge Mark S. Gempeler presiding, agreed with Megal. Judge Gempeler's order did three things. First, it denied satisfaction of the judgment granted to the Shadofs in bankruptcy. Second, it granted Megal's motion to extend indefinitely the judgment lien to permit Megal to execute on its judgment. Finally, it stayed Megal's right to execute the judgment during the pendency of the appeal of its decision, or the expiration of the Shadofs' appeal rights. The Shadofs appealed to the court of appeals, which certified the matter to this court.

¶ 8. Statutory interpretation is an issue of law which we review de novo. While the review is de novo, this court benefits from the analyses of the circuit court and the court of appeals. State v. Anderson, 2005 WI 54, ¶ 23, 280 Wis. 2d 104, 695 N.W.2d 731 (citing State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 14, 271 Wis. 2d 547, 679 N.W.2d 514).

¶ 9. We address two issues in this case. First, whether under the circumstances presented, Wis. Stat. § 806.19(4) requires the satisfaction of Megal's judgment debt, including the judgment lien against the Shadofs1 homestead. Second, if this court determines that § 806.19(4) does require satisfaction of the judgment debt, is that statute preempted by federal bankruptcy law. We will consider each in turn.

¶ 10. The first issue before the court is whether Wis. Stat. § 806.19(4) requires satisfaction of a judgment debt, including a judgment lien, when the underlying judgment has been discharged in bankruptcy, but the equity in the homestead to which the lien attaches exceeds the homestead exemption.

¶ 11. Megal argues that the plain language of the statute is unambiguous, and clearly requires that in order for a judgment debt, including a judgment lien, to be satisfied under the statute, the lien itself, not simply the underlying judgment, must have been avoided in bankruptcy. Megal bases this interpretation on the distinction between in personam judgments, and in rem judgment liens (an in rem action based upon in per-sonam liability). Bankruptcy provides a discharge of in personam liability for debts. See Dewsnup, 502 U.S. at 418. However, a bankruptcy discharge leaves a lien on real property intact. Id. (citing Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150 (1991) ("Rather, a bankruptcy discharge extinguishes only one mode of enforcing a claim - namely, an action against the debtor in personam - while leaving intact another - namely, an action against the debtor in rem.")).

¶ 12. Because an in rem judgment lien survives bankruptcy, Megal urges, a debtor must pursue an 11 U.S.C. § 522(0(2004) motion in federal court to avoid the lien. Therefore, to make Megal's in personam judgment debt and in rem judgment lien eligible for satisfaction under Wis. Stat. § 806.19(4), the Shadofs must have successfully avoided the lien under § 522(f). Having failed to avoid the lien, Megal reasons, its judgment lien was not "discharged" in bankruptcy, and is therefore ineligible for satisfaction under § 806.19(4).

¶ 13. The Shadofs also believe the statute to be unambiguous, yet in support of the opposite result. The Shadofs maintain that the plain language of Wis. Stat. § 806.19(4) clearly states that if a judgment debt is discharged in bankruptcy, the judgment shall be satisfied if a proper application is made to the court. The court of appeals seems to agree, stating in its certification "On the surface, Wis. Stat. § 806.19(4) appears to clearly and unambiguously entitle a judgment debtor to a satisfaction of a judgment debt that has been discharged in bankruptcy."

¶ 14. The Shadofs contend that the statute provides a checklist of conditions which, if met, shall lead to the satisfaction of a creditor's judgment and associated judgment lien. Wisconsin Stat. § 806.19(4) requires judgment debtors to (1) "secure[] a discharge of a judgment debt in bankruptcy"; (2) give notice to judgment creditors; and (3) make a proper application for an order of satisfaction, certifying that the judgment has been discharged in bankruptcy. The Shadofs do not dispute Megal's position that ordinarily liens survive bankruptcy. See Johnson, 501 U.S. at 84. Nor do they question the contention that 11 U.S.C. § 522(f) (2004) provides a means in the federal bankruptcy code for a debtor to avoid such liens.

¶ 15. The Shadofs' position is that Wis. Stat. § 806.19(4) provides a mechanism through operation of state law for a debtor to obtain satisfaction of a judgment and a judgment lien when the underlying judgment has been discharged in bankruptcy, whether or not the debtor has first obtained a lien avoidance. Having satisfied what they interpret to be the exclusive requirements of § 806.19(4), the Shadofs believe the circuit court should have satisfied the judgment and judgment lien.

HH HH

¶ 16. [W]e have repeatedly held that statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted).

¶ 17. In this case, both parties urge the court to conclude that the statute is unambiguous, yet they disagree as to its meaning. We find the language of the statute clearly and unambiguously supports the Shad-ofs' position. Wisconsin Stat. § 806.19(4)(a) provides in relevant part that "[a]ny person who has secured a discharge of a judgment debt in bankruptcy.. . may submit an application for an order of satisfaction of the judgment...." Subsection (4)(d) then states in relevant part that "[u]pon receipt of a completed application . . . the clerk shall satisfy of record each judgment described in the application. Upon satisfaction, a judgment shall cease to be a lien on any real property that the person discharged in bankruptcy owns or later acquires."

¶ 18. Megal urges the court to adopt an alternate understanding of the statute. Megal would have us read the statutory phrase "judgment" as encompassing two elements — the in personam judgment debt, and the associated judgment lien. After discussing the discharge of a "judgment debt," Wis. Stat. § 806.19(4) refers exclusively to the satisfaction of a "judgment." Megal argues that since the rights of secured creditors to proceed against property in rem survive Chapter 7 proceedings, only the in personam judgment debt, not the entire judgment, has been "discharged." Because the Shadofs failed to seek an order under 11 U.S.C. § 522(f) (2004) to avoid the in rem judgment lien, the lien was not "discharged in bankruptcy." Therefore, neither the judgment nor the judgment lien is eligible to be satisfied under § 806.19(4).

¶ 19. The weakness in, Megal's position is evident when the statute is reviewed in light of terms used in bankruptcy. First, applying the technical meaning particular to bankruptcy, a discharge "voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor. . . ." 11 U.S.C. § 524(a)(1) (2004). Black's Law Dictionary defines "discharge" as "[t]he release of a debtor from monetary obligations upon adjudication in bankruptcy." Black's Law Dictionary 475 (7th ed. 1999). In other words, in personam liability is "discharged" in bankruptcy. However, liens, including judicial liens, are "avoided" in bankruptcy. Black's Law Dictionary 936 (7th ed. 1999). Wisconsin Stat. § 806.19(4) clearly provides that a person who has "secured a discharge of a judgment debt" may apply for "an order of satisfaction of the judgment." Wis. Stat. § 806.19(4)(a) (emphasis added). Therefore, even if we accept Megal's parsing of the statute, satisfaction of the in personam money judgment would lead to a satisfaction of the entire judgment. Once the judgment is satisfied, the judgment lien would be satisfied in accord with § 806.19(4)(d). There is no statutory language requiring that an associated judgment lien first be avoided before it can be satisfied.

¶ 20. The final sentence of Wis. Stat. § 806.19(4)(d) states: "Upon satisfaction, a judgment shall cease to be a lien on any real property that the person discharged in bankruptcy owns or later acquires." Wis. Stat. § 806.19(4)(d) (emphasis added). Although "judgment debt" could be understood to be comprised of only the in personam judgment, a judgment lien is not a judgment in rem.

¶ 21. In this case, we find the language clearly provides that a debtor may have a judgment and an associated judgment lien satisfied through operation of state law, when the underlying judgment has been discharged in bankruptcy. Megal urges this court to read into the statute requirements that are simply not there. Had the Wisconsin Legislature intended to require avoidance under 11 U.S.C. § 522(f) (2004) before a judgment and judgment lien could be satisfied through state procedure, it could have done so. It did not. Another interpretation would require us to read additional language into the statute. We decline to do so.

IV

¶ 22. Further buttressing our plain language reading of Wis. Stat. § 806.19(4) is the legislative history of the statute. While the traditional rule is that " 'resort to legislative history is not appropriate in the absence of a finding of ambiguity'" this court has recognized that "[o]n occasion ... we consult legislative history to show how that history supports our interpretation of a statute otherwise clear on its face." Seider v. O'Connell, 2000 WI 76, ¶¶ 50, 52, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 23. The legislative history of Wis. Stat. § 806.19(4) strongly supports the position that the discharge of an in personam judgment in bankruptcy allows for a satisfaction of both the judgment itself and an associated judgment lien. In the past 20 years, there have been two significant amendments to the statute. Both amendments were in response to a Wisconsin court having narrowly construed the statute against the debtor. 1985 Wis. Act 137, 1995 Wis. Act 393. As we have repeatedly stated, when a statute is repealed and recreated following a judicial interpretation, it is "presumed to be the result of conscious deliberation on the part of the legislature." Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 633, 547 N.W.2d 602 (1996) (citation omitted).

¶ 24. The first significant amendment of the statute came in 1985, following the court of appeals' decision in State Central Credit Union v. Bigus, 101 Wis. 2d 237, 304 N.W.2d 148 (Ct. App. 1981). In Bigus, the question before the court was quite similar to the issue in this case: "whether a satisfaction order entered on behalf of a discharged bankrupt relieves the discharged bankrupt of the statutorily created in rem effects of a judgment... ." Id. at 239-40.

¶ 25. The court of appeals sought to reconcile what it felt to be "apparently conflicting remedial statutes." Id. at 241. Wisconsin Stat. § 806.15(1) gave a judgment creditor a lien against real property owned by the judgment debtor. Yet the last sentence of the statute provided "the limitation that, where a satisfaction order has been entered upon a claim discharged in bankruptcy, a judgment based upon that claim cannot 'thereafter become a lien on any real property of the discharged person then owned or thereafter acquired.'" Bigus, 101 Wis. 2d at 241. In apparent conflict was Wis. Stat. § 806.19(4) that "provide[d] that a person discharged in bankruptcy can obtain a satisfaction of judgment order from the proper court upon application." Id. The Bigus court read the two statutes together "to mean that a judgment lien can be enforced against the bankrupt's property if the judgment was obtained before a satisfaction order is entered pursuant to sec. 806.19(4)." Id. at 243.

¶ 26. The Bigus court failed to consider the language immediately preceding the statutory language it relied upon, however. The final sentence of Wis. Stat. § 806.15 actually stated "A judgment based upon a claim discharged in bankruptcy shall upon entry of the order of satisfaction or discharge cease to be and shall not thereafter become a lien on any real property of the discharged person then owned or acquired." Wis. Stat. § 806.15(1) (1981-82) (emphasis added). By ignoring the statutory phrase "cease to be" the court was able to reason that the legislature only intended to prevent the attachment of liens on property after the conclusion of the bankruptcy proceeding.

¶ 27. The legislature expressed its displeasure with the Bigus decision by amending the statute in 1985. The 1985 Wisconsin Act 137 removed the language from Wis. Stat. § 806.15(1) upon which the court of appeals had based its reasoning and repealed and recreated Wis. Stat. § 806.19(4).

¶ 28. Several years later, in Overhead Door Co. v. Hazard, the Dane County Circuit Court interpreted the amended statute. The issue in that case was "whether a surviving judicial lien against the bankrupt's property precludes a motion for satisfaction of the judgment under sec. 806.19(4) Wis. Stats." In Overhead Door, the judgment debtor had obtained a discharge of the underlying judgment, but his motion for an order to avoid the judgment lien under 11 U.S.C. § 522(f)(2004) had been denied. The circuit court denied satisfaction of the lien under the Wisconsin statute, stating that because the lien was not successfully avoided under § 522(f) "the judgment at issue was not 'completely voided by the discharge in bankruptcy' as required by sec. 806.19(4)."

¶ 29. In 1995, the legislature acted again. In a move similar to that ten years earlier, the legislature, in its 1995 amendments, removed the language upon which the Overhead Door court had based its reasoning. Rather than requiring the debtor to certify that each judgment had been "completely voided by the discharge," it was now sufficient that the listed judgments be "discharged in bankruptcy." 1995 Wis. Act 393. In addition, the final sentence of the current statute was added to Wis. Stat. § 806.19(4)(d). With both of these amendments, the legislature clearly was attempting to correct an interpretation of the statute that ran counter to its intent.

¶ 30. Further supporting our plain language interpretation of the statute is In re Spore, 105 B.R. 476 (Bankr. W.D. Wis. 1989), a 1989 case from the United States Bankruptcy Court for the Western District of Wisconsin which interpreted Wis. Stat. § 806.19(4). Although the facts were different, and the court was examining the 1985 amendment of the statute, the argument employed by the debtors in that case was exactly the same as that put forward by Megal. The court in Spore reasoned that prior. examinations of § 806.19(4) and its predecessors which had construed debtor's rights narrowly, including Bigus, had failed to consider Wis. Stat. § 806.21 and the combined effect of the two statutes. The court, by presenting a summary of cases that have examined § 806.19(4) and its predecessors, started from the position that "Wisconsin has provided debtors discharged in bankruptcy the legal basis and the legal means to avoid liens in state court since 1943." Spore, 105 B.R. at 483.

¶ 31. In analyzing the relationship between federal bankruptcy law and Wis. Stat. §§ 806.21 and 806.19(4), the court emphasized the unitary nature of judgments. Spore, 105 B.R. at 480. Spore reiterated the fact that a lien survives discharge of the underlying judgment in bankruptcy, and emphasized that "a discharge in bankruptcy voids all aspects of all judgments to the extent of the debtor's personal liability." Id. at 478 (citing 11 U.S.C. § 524(a)(2)(1989)).

¶ 32. At the time of the Spore decision, Wis. Stat. § 806.21 provided "If a judgment is satisfied in whole or in part or as to any judgment debtor and such satisfaction docketed, such judgment shall, to the extent of such satisfaction, cease to be a lien...Wis. Stat. § 806.21 (1987-88). Reading § 806.21 in conjunction with Wis. Stat. § 806.19(4), and in light of Wisconsin's long history of providing a mechanism for extinguishing judgment liens after bankruptcy, the Spore court concluded that Wisconsin law "provide [s] the legal basis and the legal means for debtors discharged in bankruptcy to void liens surviving bankruptcy." Spore, 105 B.R. at 485. The court explained:

At the present time, Wis. Stat. § 806.15(1) provides for the creation of a lien upon the docketing of a judgment; Wis. Stat. § 806.19(4) provides for the satisfaction of a judgment by a debtor discharged in bankruptcy; and Wis. Stat. § 806.21 provides for the destruction of a lien upon satisfaction. Clearly, no further ambiguity exists for Wis. Stat. § 806.19(4).

Id.

¶ 33. Megal contends that Spore is no longer good law after the United States Supreme Court decisions in Johnson and Dewsnup. Both Johnson and Dewsnup stand for the proposition that liens pass through bankruptcy despite the discharge of an underlying judgment. Neither holding altered the law with regard to this concept. Megal misstates the reasoning in Spore by arguing that the court held, in error, that a bankruptcy discharge voided both the in personam and in rem aspects of a judgment. Since that is an incorrect reading of the Spore decision, we conclude that Spore is still good law.

¶ 34. The Wisconsin Legislature, on multiple occasions, has demonstrated its intent to allow debtors to obtain satisfaction of both a judgment and a judgment lien when the underlying judgment has been discharged in bankruptcy. In this decision, we are recognizing and enforcing policy choices made by the Wisconsin Legislature. If the legislature determines such policies are no longer consistent with the best interests of the citizens of this state, it is its exclusive prerogative to amend the statute.

V

¶ 35. We next turn to the issue of whether Wis. Stat. § 806.19(4) is preempted by the Supremacy Clause of the United States Constitution. U.S. Const, art. VI, cl. 2. Because we find that § 806.19(4) does not conflict with federal bankruptcy law, the statute is not preempted.

¶ 36. The United States Constitution is "the supreme law of the land." U.S. Const, art VI, cl. 2. As the United States Supreme Court explained in Gibbons v. Ogden:

[I]t has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act, inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law.

Gibbons v. Ogden, 22 U.S. 1, 210-11 (1824).

¶ 37. "Federal preemption may occur through express preemption or implied preemption. Congress may expressly preempt contradictory - or even coterminous - state laws in the text of the laws it passes." Olstad v. Microsoft Corp., 2005 WI 121, ¶ 38, 284 Wis.2d 224, 700 N.W.2d 139 (citations omitted). "Congress may also impliedly preempt state laws by completely occupying a given regulatory field." Id. In addition, "implied conflict preemption will be found 'where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Miezin v. Midwest Express Airlines, Inc., 2005 WI App 120, ¶ 10, 284 Wis.2d 428, 701 N.W.2d 626. However, "if the preemption is only implied, courts typically require clear evidence of legislative intent to preempt." Olstad, 284 Wis.2d 224, ¶ 38. Further, the U.S. Supreme Court has articulated a "strong presumption" against preemption. Id.

¶ 38. In this case, there is no express preemption. In the absence of explicit language preempting state law, the question of "whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process. . . ." Perez v. Campbell, 402 U.S. 637, 644, 91 S. Ct. 1704 (1971). First, the court must construe the state and federal statutes. Id. Second, we must ascertain whether they are in conflict. Id.

¶ 39. The Shadofs argue that an interpretation of Wis. Stat. § 806.19(4) that allows a debtor to extinguish a judgment and judgment lien upon the satisfaction of the underlying judgment in bankruptcy does not in any way conflict with federal bankruptcy law. Instead, it reflects policy decisions of the legislature to provide additional protections to Wisconsin residents at the conclusion of a bankruptcy proceeding.

¶ 40. Megal maintains that an interpretation of Wis. Stat. § 806.19(4) that would allow a judgment lien to be satisfied when an underlying in personam judgment was discharged in bankruptcy, even though equity remains after applying the homestead exemption, would impermissibly interfere with the Bankruptcy Code (Code), and therefore be preempted by the Supremacy Clause. Megal's position is that such a reading of the statute would afford substantive rights to the debtor expressly at odds with the Code's provisions concerning the equitable distribution of assets among debtors and creditors. If the judgment lien is extinguished by operation of statute, Megal argues, the Shadofs would end up with a windfall, perhaps as much as $20,000, directly in conflict with the Code's goal of providing debtors with a "fresh start" not a "head start." Taylor v. AGE Fed. Credit Union, 3 F.3d 1512, 1516 (11th Cir. 1993).

¶ 41. In support of its preemption argument, Megal cites to a long list of cases that stand for the proposition that state laws that interfere with the Bankruptcy Code, or provide additional regulations, are preempted. Megal further argues that exemptions that operate only in the context of bankruptcy override Congress's determination of how property should be administered, and are therefore preempted.

¶ 42. One of the cases Megal relies on is Kanter v. Moneymaker, in which the United States Court of Appeals for the Ninth Circuit struck down a California statute that limited the assignment of an interest in monies recovered from personal injury actions, which were otherwise available to satisfy creditors' claims. Kanter v. Moneymaker, 505 F.2d 228 (9th Cir. 1974). The court held that the statute" 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' since it would operate to deny to the trustee assets which could ordinarily be reached in satisfying the claims of general creditors." Id. at 231 (citations omitted). Megal, therefore, concludes that although California had the right to exempt property from the claims of creditors, it could not create exemptions which either interfered with bankruptcy proceedings, or operated only in the context of a bankruptcy.

¶ 43. Megal further cites In re Cross, 255 B.R. 25 (Bankr. N.D. Ind. 2000), to support the proposition that exemptions that operate only in the context of a bankruptcy are preempted by federal law. Cross relied on the Supremacy Clause to strike down an Indiana statute that prevented a trustee in bankruptcy from reaching property held by spouses as a tenancy by the entireties, to satisfy the claims of creditors when only one of the two spouses filed bankruptcy. Id. at 32. However, "outside of bankruptcy, Indiana law allows entireties property to be used to satisfy the claims of creditors, but only for the joint debts of both spouses. .. ." Id. The offending Code section at issue "completely exempt[ed] entireties property from administration by a hank-ruptcy trustee where only one of the two spouses files bankruptcy, without regard to the existence of joint creditors." Id. (citation omitted).

¶ 44. We conclude that both Kanter and Cross are distinguishable. Both cases involved state exemption statutes that operated to limit the powers of the trustee during the bankruptcy proceeding from reaching assets that could ordinarily be reached by creditors. The court, in each case, found that while the Bankruptcy Act recognizes state exemptions to assist the debtor to make a fresh start, the provisions at issue failed to meet the criteria of a general exemption. While Wis. Stat. § 806.19(4) is particular to the bankruptcy proceeding, in that it requires the discharge of judgments in bankruptcy before it can operate, it does not create an exemption. Nor does it limit the powers of the trustee during bankruptcy or operate to interfere in any way with the bankruptcy proceeding itself — it simply does not operate during bankruptcy. Section 806.19(4) is dormant until the conclusion of the federal bankruptcy proceeding, and, thus, it does not conflict with the Code. Therefore, neither Kanter nor Cross requires us to conclude that § 806.19(4) is preempted by federal law.

¶ 45. Further, federal bankruptcy law allows variations among states in judgment clearing statutes. South Dakota, for example, provides that:

[a]ny person discharged in bankruptcy may file in the office of each clerk of court in which a judgment has been rendered ... a certified copy of any bankruptcy court order specifying any judgment discharged in bankruptcy. The clerk shall enter the discharge order in the judgment docket and the entry shall discharge the judgment specified from and after that date.

S.D. Codified Laws § 15-16-20 (West 2003). New York requires the debtor wait a minimum of one year from the time of the discharge in bankruptcy before he may apply for an order "directing that a discharge or qualified discharge of record be marked upon the docket of the judgment." N.Y. Debt. & Cred. Law § 150 (McKinney 2003). New York courts will direct a qualified discharge be placed on the judgment docket only if:

(a) it does not appear whether the judgment was a lien on real property owned by the bankrupt or debtor prior to the commencement of the bankruptcy proceedings, or (b) if it appears that the judgment was a lien on such real property and it is not established to the satisfaction of the court that the lien was invalidated or surrendered. ...

Id. Wisconsin Stat. § 806.19(4) provides a mechanism to allow a lien which has survived a bankruptcy to be satisfied through a state procedure. For states that do not have a means of satisfying liens, 11 U.S.C. § 522(f)(2004) provides a mechanism to avoid liens through the federal bankruptcy code. However, the Code itself takes no position on the enforcement or lack thereof of liens after there has been a discharge in bankruptcy, unless § 522(f) has been utilized.

¶ 46. Megal additionally argues that an interpretation of Wis. Stat. § 806.19(4) allowing for a judgment and a judgment lien to be satisfied after the underlying judgment is discharged would operate contrary to Wisconsin's homestead exemption, where equity remains after applying the exemption. We disagree. Neither statute relies upon, or makes reference, to the operation of the other. They are not contingent, nor in conflict.

¶ 47. We agree with the Shadofs' position that Wis. Stat. § 806.19(4) does not conflict with, and is therefore not preempted by, federal bankruptcy law. In this case, the Shadofs' property, including their homestead, was with the Trustee in bankruptcy for purposes of administration. After determining that once secured creditors were accounted for, along with the homestead exemption, there would be no assets left in the estate to pay unsecured creditors, the Trustee abandoned the homestead property which then reverted back to the Shadofs.

¶ 48. Finally, Megal urges that the Shadofs' interpretation of the statute would violate the Due Process Clause of the XIV Amendment to the United States Constitution, by depriving them of a property right without due process of law. The Shadofs maintain, and we agree, that a judgment lien is nothing more than a mechanism for the enforcement of an in personam money judgment. The judgment and the associated judgment lien only exist through the operation of the Wisconsin statutes. Wis. Stat. §§ 806.10, 806.15.

Such a lien, under a judgment "does not constitute or create an estate, interest, or right of property in the lands which may be bound for its satisfaction; it gives merely a right to levy on such lands to the exclusion of adverse interests subsequent to the judgment."... "the lien of a judgment on lands does not constitute, in law, per se, a property or right in the land itself, and a plaintiff who obtains a judgment does not thereby acquire any interest or estate in the property."

Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 435, 272 N.W. 657 (1937). The issue of due process was first raised at the oral arguments on this case, but was not fully argued or briefed by counsel for the parties, and, therefore, we do not address it further.

VI

¶ 49. It is for these reasons we conclude that the circuit court erred in refusing to satisfy the judgment debt pursuant to Wis. Stat. § 806.19(4). The plain language of the statute unambiguously provides that when a proper application is received by the clerk and submitted to the judge for signature, the only thing required for satisfaction of a judgment debt and cessation of an associated judgment lien is that the underlying judgment has been discharged in bankruptcy. The legislative history of the statute, as well as persuasive precedent discussed herein, provide additional support for our conclusion. We also conclude that § 806.19(4) is not in conflict with, and therefore is not preempted by, federal bankruptcy law.

By the Court. The decision of the circuit court is reversed, and this matter is remanded for further proceedings consistent with this decision.

       All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

       Wisconsin Stat. § 806.19(4) states in relevant part:
      (a) Any person who has secured a discharge of a judgment debt in bankruptcy and any person interested in real property to which the judgment attaches may submit an application for an order of satisfaction of the judgment and an attached order of satisfaction to the clerk of the court in which the judgment was entered.
      (b) The application and attached order shall be in substantially the following form:
      APPLICATION FOR ORDER OF SATISFACTION OF JUDGMENTS DUE TO DISCHARGE IN BANKRUPTCY
      TO: Clerk of Circuit Court.... County
      1. (Name of judgment debtor) has received an order of discharge of debts under the bankruptcy laws of the United States, a copy of which is attached, and .... (Name of judgment debtor or person interested in real property) applies for satisfaction of the following judgments:.... (List of judgments ....)
      2. a. Copies of the schedules of debts as filed with the bankruptcy court showing each judgment creditor for each of the judgments described above are attached; or
      b. Each judgment creditor for each of the judgments described above has been duly notified of the bankruptcy case in the following manner:.... (statement of form of notice).
      3. The undersigned believes that each judgment listed above has been discharged in bankruptcy, and no inconsistent ruling has been made by, or is being requested by any party from, the bankruptcy court.
      Dated this .... day of,. (year)
      .... (Signature)
      Judgment Debtor, Person Interested in Real Property or Attorney for Debtor or Person

        ORDER OF SATISFACTION
      The clerk of circuit court is directed to indicate on the judgment and hen docket that each judgment described in the attached application has been satisfied.
      Dated...
      .... (Signature)
      Circuit Judge
      (c) Any person submitting an application and attached proposed order shall serve a copy of the completed application and attached proposed order on each judgment creditor for each of the judgments described in the application within 5 business days after the date of submission.
      (d) Upon receipt of a completed application, the clerk shall submit the attached proposed order for signature by a judge after which the clerk shall satisfy of record each judgment described in the application. Upon satisfaction, a judgment shall cease to be a lien on any real property that the person discharged in bankruptcy owns or later acquires.

       A contrary position was expressed in In re Spore: "A discharge does not fail to void any aspect of a judgment; a discharge in bankruptcy voids all aspects of all judgments to the extent of the debtor's personal liability." In re Spore, 105 B.R. 476, 478 (Bankr. W.D. Wis., 1989) (citation omitted).

       Section 1 of the Bankruptcy Act of 1898 defines "discharge" as "the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted under this act." Pitcairn v. Scully, 97 A. 120, 121 (Pa. 1916).

       Black's Law Dictionary defines "lien avoidance" as "Bankruptcy. A debtor's depriving a creditor of a security interest in an asset of the bankruptcy estate. 11 U.S.C.A. §§ 506(d), 522(f)." Black's Law Dictionary 936 (7th ed. 1999).

       The creation of a judgment lien against a property does not create a new in rem judgment. Rather, it provides a means of pursuing satisfaction of an in personam judgment by going after the debtor's real property. The court in Spore clarified the distinction. "The terms in rem and in personam describe actions, not aspects. When used to describe a judgment, in rem means a judgment against a thing, a right, or status while in personam means a judgment against a person. The terms in rem and in personam are mutually exclusive when applied to judgments." Spore, 105 B.R. at 478 (citation omitted).

       We acknowledge that this result may cause holders of judgment liens to act more quickly, in similar situations, to execute on their liens.

       In oral argument, Megal concluded that there were two situations under which it would be appropriate for a judgment lien to be satisfied under Wis. Stat. § 806.19(4): when a judgment lien is avoided under 11 U.S.C. § 522(f) (2004) or some other federal bankruptcy motion, and when a judgment lien never properly attached due to insufficient equity in a property. See Rumage v. Gullberg, 2000 WI 53, ¶ 28,235 Wis. 2d 279, 611 N.W.2d 458 (holding a creditor's properly docketed judgment was not a valid lien against fully exempt homestead property at the time the debtor sold the property).

       Other state legislatures have chosen to do so. For example, the New Jersey statutes, in a section entitled "Cancellations Following Discharges in Bankruptcy," provide the following limitation to discharges after bankruptcy:
      Where the judgment was a lien on real property owned by the bankrupt prior to the time he was adjudicated a bankrupt, and not subject to be discharged or released under the provisions of the Bankruptcy Act, the lien thereof upon said real estate shall not be affected by said order and may be enforced, but in all other respects the judgment shall be of no force or validity, nor shall the same be a lien on real property acquired by him subsequent to his discharge in bankruptcy.
      N.J. Stat. Ann. § 2A: 16-49.1 (West 2003).
      The Illinois statutes go further and provide for the revival of a judgment.
      If a judgment debtor has filed for protection under the United States Bankruptcy Code and failed to successfully adjudicate and remove a lien filed by a judgment creditor, then the judgment may be revived only as to the property to which a lien attached before the filing of the bankruptcy action.
      735 Ill. Comp. Stat. 5/2-1602 (West 2003).

       The amended language provided that "Any person who has secured a discharge in bankruptcy that renders void one or more judgments . . . may submit an application for an order of satisfaction.. . ."Wis. Stat. § 806.19(4) (1987-88). The proposed form in subsection (4)(b) included a statement that "The undersigned believes that each judgment listed above has been completely voided by the discharge in bankruptcy. ..." Wis. Stat. § 806.19(4)(b) (1987-88). Subsection (4)(d) stated "Upon receipt of a completed application, the clerk shall submit the attached proposed order for signature by a judge after which the clerk shall satisfy of record each judgment described in the application." Wis. Stat. § 806.19(4)(d) (1987-88).

       The debtors reason as follows ... the discharge alone voids the judicial lien only as to personal liability. Since the Bankruptcy Code does not by itself render void the in rem aspects of a judgment... the only reasonable construction of order of satisfaction under Wis. Stat. § 806.19(4) is that such order only voids the in personam aspects of such judgment unless some action has been taken under other sections of the Bankruptcy Code to have the judgment lien voided.

        Spore, 105 B.R. at 478.

       Discussing the importance of limiting preemption to only those situations obviously intended by Congress, Justice Frankfurter noted in his concurrence in Bethlehem Steel Co. v. New York State Labor Relations Board. "To construe federal legislation so as not needlessly to forbid preexisting State authority is to respect our federal system. Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority, completely displacing the States." Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 780, 67 S. Ct. 1026 (1947) (Frankfurter, J. concurring). See also Younger v. Harris, in which Justice Black emphasized the importance of the nation's federal system:
      [T]he notion of "comity, that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," horn in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future.

        Younger v. Harris, 401 U.S. 37, 44-45, 91 S. Ct. 746 (1971).

       Even though bankruptcy is one of only two legislative powers in Article I, Section 8 of the Constitution in which the power to make "uniform" laws is made explicit, the presumption against displacing state law by federal bankruptcy law is just as strong in bankruptcy as in other areas of federal legislative power.

        Pacific Gas & Elec. Co. v. California ex rel. California Dept. of Toxic Substances Control, 350 F.3d 932, 943 (9th Cir. 2003).

       Article I, Section 8, clause 4 of the United States Constitution gives Congress the power "To establish ... uniform Laws on the subject of Bankruptcies throughout the United States." This provision is not at issue in this case. The "Uniformity Clause is not a restriction upon the states. It.. . operates as a limitation on the type of bankruptcy laws Congress may enact. It is difficult, if not impossible, to see how a state law can violate a restriction on the powers of the national legislature." In re Cross, 255 B.R. 25, 31 (Bankr. N.D. Ind. 2000) (citations omitted).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Donald A. Hoffman, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Donald A. Hoffman, Respondent.
    Supreme Court

      No. 2005AP1122-D.

      Decided November 11, 2005.

    2005 WI 154
    (Also reported in 705 N.W.2d 877.)
   The Court entered the following order on this date:

The Office of Lawyer Regulation (OLR) and Attorney Donald A. Hoffman have executed a stipulation pursuant to SCR 22.12 in this reciprocal discipline matter.

Hoffman was admitted to the Wisconsin bar in 1968. His Wisconsin license is on inactive status. See SCR 31.01(5). He was admitted to the Louisiana Bar in 1969. The complaint filed by the OLR alleged that by virtue of having received public discipline in Louisiana, see In re Donald Hoffman, No. 03-B-2499 (La., September 9, 2004), Hoffman is subject to reciprocal discipline under SCR 22.22. The Louisiana Supreme Court imposed a three-month suspension of Hoffman's license to practice law in Louisiana, but deferred the suspension. The OLR complaint also alleged that Hoffman had violated SCR 22.22 (1) by failing to timely notify the OLR of the suspension of his Louisiana law license. On May 4, 2005, this court issued an order directing Hoffman to show cause why the imposition of reciprocal discipline would not be warranted.

The parties executed a stipulation on May 13, 2005. Hoffman maintains that while he does not agree -with the outcome of the Louisiana proceeding, he does not contend that the imposition of reciprocal discipline is unwarranted.

The parties have agreed to a prospective three month suspension of Hoffman's license to practice law in Wisconsin. We accept this stipulation, as we do not defer license suspensions in this state. See, e.g., OLR v. Morec, 2004 WI 118, 275 Wis. 2d 279, 684 N.W.2d 667. Consistent with the OLR's request, we will not impose the costs of this proceeding upon Hoffman. Therefore,

IT IS ORDERED that the license of Attorney Donald A. Hoffman to practice law in Wisconsin is suspended for three months, effective the date of this order, and until the further order of this court; and

IT IS FURTHER ORDERED that Attorney Donald A. Hoffman shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.

Prosser, J., did not participate.


text:
    In the Matter of Disciplinary Proceedings Against David L. DenHartigh, Attorney at Law: Office of Lawyer Regulation, Complainant, v. David L. DenHartigh, Respondent.
    Supreme Court

      No. 2005AP2051-D.

      Decided November 11, 2005.

    2005 WI 155
    (Also reported in 705 N.W.2d 876.)
   The Court entered the following order on this date:

On August 10, 2005, the Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Attorney David L. DenHartigh asking this court to impose reciprocal discipline identical to that imposed on Attorney DenHartigh in the Oregon Supreme Court. That court suspended Attorney DenHartigh's law license for 90 days, effective July 1, 2005. On August 12, 2005, this court issued an order to show cause directing Attorney DenHartigh to show cause in writing by August 31, 2005 why the imposition of the identical discipline imposed by the Oregon Supreme Court would be unwarranted. Attorney DenHartigh failed to respond to the order to show cause.

Attorney DenHartigh was admitted to practice law in Wisconsin on November 23, 1982 and he became licensed to practice law in Oregon on April 26, 1991.

The 90-day suspension in Oregon resulted from neglecting a legal matter entrusted to the lawyer, failing to carry out a contract of employment entered into with a client for professional services, failing to maintain client funds in trust, and failing to maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the lawyer's client regarding them in violation of the Oregon Code of Professional Responsibility.

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney DenHartigh contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that the license of David L. DenHartigh to practice law in the State of Wisconsin be suspended for 90 days, effective the date of this order;

IT IS FURTHER ORDERED that Attorney Den-Hartigh shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.


text:
    In the Matter of Medical Incapacity Proceedings Against Daniel Ensley, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Daniel Ensley, Respondent.
    Supreme Court

      No. 2005AP2109-D.

      Decided November 11, 2005.

    2005 WI 156
    (Also reported in 705 N.W.2d 876.)
   The Court entered the following order on this date:

The Office of Lawyer Regulation (OLR) and Attorney Daniel Ensley entered into a comprehensive stipulation, pursuant to SCR 22.34(1), requesting that this court issue an order indefinitely suspending Attorney Ensley's license to practice law, without an assessment of costs, due to medical incapacity.

Attorney Ensley was admitted to practice law in 1978. On April 15, 2004, Attorney Ensley's status with the State Bar changed from active to inactive and, on November 1, 2004, Attorney Ensley's Wisconsin law license was administratively suspended for failure to pay mandatory dues and remains suspended.

Pursuant to the stipulation, Attorney Ensley submitted evidence of his medical incapacity, described by the Department of Veteran's Affairs to be 100% disabling, which he acknowledges substantially prevents him from performing his duties to acceptable professional standards. Attorney Ensley stipulated that he failed to abide by Supreme Court rules in a number of matters and, due to his medical incapacity, was unable to conform his conduct to law. The stipulation provides that other attorneys acting on Attorney Ensley's behalf have corrected his errors and omissions, and all monies allegedly due clients and courts have been paid. The stipulation further states that Attorney Ensley, represented by counsel, entered into it freely, voluntarily and knowingly.

IT IS ORDERED that this court accept the stipulation of the parties and, effective the date of this order and until further order of the court, Attorney Daniel Ensley's license to practice law in Wisconsin is indefinitely suspended, without the imposition of costs.


author: SHIRLEY S. ABRAHAMSON, C.J. JON E WILCOX, J.

text:
    In re the Termination of Parental Rights to Moriah K., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Robert K., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Briar K., a Person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Robert K., Respondent-Appellant-Petitioner.
    Supreme Court

      Nos. 2004AP2330, 2004AP2331.

      Oral argument September 28, 2005.

    Decided November 18, 2005.

    2005 WI 152
    (Also reported in 706 N.W.2d 257.)

      For the respondent-appellant-petitioner there were briefs by John J. Grau and Grau Law Office, Waukesha, and oral argument by John J. Grau.

    For the petitioner-respondent the cause was argued by Michelle Ackerman Havas, assistant district attorney, with whom on the brief was E. Michael McCann, district attorney.

      An amicus curiae brief was filed by Carol C. Petersen, Milwaukee, on behalf of the Legal Aid Society of Milwaukee, Inc., and there was oral argument by Carol C. Petersen.

   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of an unpublished opinion of the court of appeals affirming the order of the circuit court for Milwaukee County, Michael G. Malmstadt, Judge, terminating the parental rights of Robert K, the father of Briar and Moriah K. We affirm the decision of the court of appeals.

¶ 2. Robert K. challenges the order of termination. He argues that because the fact-finding hearing was held more than 45 days after the contested plea hearing, contrary to the requirements of Wis. Stat. § 48.422(2), and no exception under Wis. Stat. § 48.315 applies, the circuit court lost competency to proceed with the fact-finding hearing. Wisconsin Stat. § 48.422(2) provides that if a petition to terminate parental rights is contested, the circuit court shall set a date for the fact-finding to be held within 45 days of the hearing on the petition. Wisconsin Stat. § 48.315 provides for delays, extensions, and continuances of the statutorily mandated time periods.

¶ 3. Robert K. asserts that the circuit court improperly interpreted Wis. Stat. § 48.315(l)(b) to allow the guardian ad litem for the children to consent to setting the fact-finding hearing more than 45 days after the contested plea hearing. He further asserts that the record is insufficient to establish good cause under Wis. Stat. § 48.315(2) for continuing the fact-finding hearing beyond the 45-day time period.

¶ 4. We affirm the decision of the court of appeals and the order of the circuit court, but on different grounds than relied upon by those courts. We conclude that a continuance may be granted under Wis. Stat. § 48.315(2), independent of the other grounds for a continuance specified in § 48.315(1), and that the record in the present case establishes good cause under § 48.315(2) for holding the fact-finding hearing beyond the 45-day time period. Therefore, we conclude that the circuit court did not lose competency to proceed with the fact-finding hearing. Because we hold that good cause existed to hold the fact-finding hearing more than 45 days after the contested plea hearing, we do not address the issue upon which the circuit court ruled, that is, whether a guardian ad litem's acquiescence in the circuit court's setting the fact-finding hearing beyond the 45-day period fulfills the consent requirement of Wis. Stat. § 48.315(l)(b).

1 5. The undisputed facts are as follows. Robert K. is the biological father of twins Briar and Moriah K, born June 22, 2001. Briar and Moriah, along with four other children (who are involved in TPR proceedings but not subject to this appeal), were placed in foster care by social workers on September 25, 2001. On July 18, 2002, the circuit court found Briar and Moriah to be children in need of protection or services (CHIPS), pursuant to Wis. Stat. § 48.13(10). On July 17, 2003, the State of Wisconsin filed a Petition for Termination of Parental Rights (TPR petition), requesting that the parental rights of Robert K. to Briar and Moriah be terminated.

¶ 6. The State asserted two grounds for termination of Robert K.'s parental rights: continuing CHIPS and failure to assume parental responsibility.

¶ 7. An initial plea hearing involving four parents subject to TPR petitions was held on August 8, 2003. The plea hearing was rescheduled for September 19, 2003. Robert K. does not contest this continuance beyond the 30-day time period prescribed by Wis. Stat. § 48.422(1).

¶ 8. Present at the September 19 plea hearing were the assistant district attorney, six lawyers for the parents (on both visitation and TPR issues), and two guardians ad litem. In consultation with the parties, the circuit court determined that the cases should be divided into two separate trials for the three children of each mother. The circuit court also determined that each trial would take one week to complete.

¶ 9. The circuit court initially suggested the week of November 3 for the first trial. November 3 would have been within 45 days of the contested plea hearing, satisfying the time period established in Wis. Stat. § 48.422(2).

¶ 10. No dates prior to November 3 were offered because the week of November 3 was the first available trial week in the Milwaukee County Children's Court calendar; trials are scheduled in the court every six weeks. Neither trial could be held the week of November 3 because the assistant district attorney and one guardian ad litem had other court matters scheduled.

¶ 11. The next available trial week after November 3 was the week of December 15, but the assistant district attorney was scheduled in a trial in another children's court; an attorney for one of the birth mothers was scheduled to he in another trial; and one of the guardians ad litem was to be out of the country.

¶ 12. The next available trial week in the circuit court's six-week schedule began on January 26, 2004. The TPR proceeding for Robert K.'s older children, Justin K. and Cody and Colt K, was scheduled for this trial date. The lawyer for Moriah and Briar's mother had two other cases scheduled for January 29, 2004, and would have been unable to attend the full five-day trial.

¶ 13. The circuit court then scheduled the fact-finding hearing for the TPR for the parents of Moriah, Briar, and their half-sibling Isiah on the next available trial date, March 8, 2004. At that time, neither Robert K. nor his attorney objected to scheduling the fact-finding hearing in March.

¶ 14. After a five-day trial from March 8 to March 13, 2004, the jury found the facts required to support the grounds for termination of Robert K.'s parental rights. At the dispositional hearing held on April 23, 2004, the circuit court ordered the termination of Robert K.'s parental rights.

¶ 15. Robert K. appealed this termination order. The court of appeals held that the guardian ad litem's acquiescence to the March 8 hearing date was sufficient to satisfy the requirements of Wis. Stat. § 48.315(l)(b) (governing continuances by request or consent of the child and the child's counsel or the guardian ad litem for an unborn child) and affirmed the order of the circuit court terminating Robert K.'s parental rights.

¶ 16. The timelines for fact-finding hearings in contested TPR petitions in Wisconsin applicable to the instant case are governed by Wis. Stat. § 48.422(2) and Wis. Stat. § 48.315.

¶ 17. Section 48.422(2) provides that a circuit court shall set a date for a fact-finding hearing within 45 days of the hearing on the petition unless the necessary parties agree to commence the hearing on the merits immediately. Failure to comply with this statutory time period may result in the circuit court losing competence to proceed.

¶ 18. Having established time periods for various proceedings under the Children's Code, the legislature also recognized the importance of permitting circuit courts some flexibility to extend the time periods in appropriate situations.

¶ 19. Section 48.315(1) sets forth "time periods that shall be excluded in computing time requirements" in Chapter 48. Section 48.315(2) further provides that "a continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases."

¶ 20. It is undisputed that the fact-finding hearing in this case did not occur within 45 days, of the plea hearing as required by Wis. Stat. § 48.422(2).

¶ 21. Whether the circuit court complied with Wis. Stat. § 48.315(2) when setting the date for the fact-finding hearing beyond the 45-day period presents a question of statutory interpretation. The interpretation and application of a statute to undisputed facts ordinarily is a question of law that this court determines independently of the circuit court and court of appeals, but benefiting from the analysis of both.

¶ 22. We first address whether the action taken by the circuit court is governed by Wis. Stat. § 48.315(2), which refers only to "continuances."

¶ 23. The present case does not involve what is often thought of as a continuance. The fact-finding hearing was not set within the 45-day period and then continued beyond the 45-day period. Rather, the fact-finding hearing was initially set beyond the 45-day period.

¶ 24. The ordinary usage of the word "continuance" encompasses more than just events set for and beginning on a fixed date and then continued to a later date. A continuance also encompasses a postponement, that is, a delay of an event that has no set date until a future date.

¶ 25. Indeed, cases under the Children's Code have applied Wis. Stat. § 48.315(2) to situations like the present case in which a circuit court initially schedules a hearing beyond the statutorily prescribed period. The court has written that Wis. Stat. § 48.315(2) is applicable to "all extensions of time under the Children's Code."

¶ 26. Were we to define "continuance" in Wis. Stat. § 48.315(2) narrowly, a circuit court would have to set a date for a fact-finding hearing within the statutorily mandated 45-day time period, knowing the hearing would not take place. At the scheduled date the circuit court would receive and grant a motion for a continuance to another date. This process would entail a great waste of time and resources and favors form over substance. The legislature could not have intended this result.

¶ 27. Defining the word "continuance" to include postponement comports with the legislative purpose. In M.G. v. La Crosse County Human Services Department, 150 Wis. 2d 407, 441 N.W.2d 227 (1989), the court declared that "the applicability of section 48.315 to the entire Children's Code suggests that a restrictive interpretation of this general provision is not appropriate. Although the express conditions of this section should be carefully construed, they must be given a reasonable reading."

¶ 28. We therefore conclude that the word "continuance" in Wis. Stat. § 48.315(2) is sufficiently broad to encompass situations in which the fact-finding hearing is originally scheduled beyond the statutory 45-day time period.

¶ 29. We turn now to whether, as a matter of statutory interpretation, a court's calendar and lawyers' scheduling conflicts may constitute good cause under Wis. Stat. § 48.315(2). No provision in § 48.315 explicitly states that a circuit court's schedule or lawyers' or litigants' difficulties in scheduling court dates amount to good cause for extension, delay, or continuance under § 48.315(2).

¶ 30. Case law supports the conclusion that lawyer and litigant scheduling problems may constitute good cause under Wis. Stat. § 48.315(2). In State v. Quinsanna D., 2002 WI 318, 259 Wis. 2d 429, 655 N.W.2d 752, concerning the 45-day time period between an uncontested plea hearing and a dispositional hearing, the court of appeals recognized that lawyers' scheduling difficulties constitute good cause under Wis. Stat. § 48.315(2).

hH hH hH

¶ 31. We must now decide whether the facts of record in the present case constitute good cause justifying the setting of the fact-finding hearing beyond the 45-day time period established in Wis. Stat. § 48.422(2) and whether, in accordance with § 48.315(2), the continuance was only for so long as was necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.

¶ 32. By its plain language, Wis. Stat. § 48.315(2) provides a continuance be granted, inter alia, "only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record." In the present case, in open court, within the 45-day time period, and with all parties present, the circuit court scheduled the fact-finding hearing for a date beyond the 45-day time period. The circuit court did not mention Wis. Stat. § 48.315(2) and never explicitly stated that good cause existed for scheduling the fact-finding hearing after the applicable 45-day statutory time period ended.

¶ 33. Case law establishes, however, that a circuit court need not refer to Wis. Stat. § 48.315(2) in open court in scheduling fact-finding hearings and need not utter any magic words or deliver any special utterances to invoke § 48.315(2). The court of appeals explained as follows:

Where the record "contains ample evidence to support a finding of good cause" for a continuance of a termination hearing, the trial court's "incantation of statutory phrases [is] unnecessary" for this court to conclude that a continuance, beyond what otherwise would have been the statutory time limits, does not deprive the trial court of competence.

¶ 34. A reviewing court may examine the record to determine whether good cause existed under Wis. Stat. § 48.315(2) and whether the delay was only for so long as necessary. A reviewing court "will affirm decisions of the trial court if that court reached a result that the evidence would sustain had a specific finding supporting that result been made." Although good cause can be inferred when the record contains ample evidence to support such a determination, the court urges, as explained below, that a circuit court state on the record its reasoning for continuing, delaying or extending a fact-finding hearing beyond the 45-day period between the plea hearing and the fact-finding hearing in a TPR proceeding.

¶ 35. Although a determination of good cause may be based on many factors, courts have emphasized the following four factors when evaluating good cause: (1) good faith of the moving party; (2) prejudice to the opposing party; (3) prompt remedial action by the dilatory party; and (4) the best interest of the child.

¶ 36. Regarding the first factor in evaluating good cause, no evidence exists in the record that any party was seeking to extend the date of the fact-finding hearing without the requisite good faith. The discussions on the record about scheduling suggest that the circuit court, litigants, and lawyers did their best to accommodate the scheduling needs of the various participants, while working within the calendaring constraints of the Milwaukee County circuit court.

¶ 37. The dates for the fact-finding hearings had to fit the circuit court's calendar. The Milwaukee County Children's Court operates on a six-week trial cycle, with one week of the cycle devoted to trials. According to the record, to adhere to the six-week cycle the circuit court could not schedule a jury trial before November 3, 2003.

¶ 38. The sheer number of persons involved in the hearings significantly affected the circuit court's ability to schedule the matter. There were two guardians ad litem, the assistant district attorney, four parents, and six attorneys representing the parents. Several had obligations that interfered with scheduling the hearings. Each attorney had obligations to other clients and other courts to appear at already scheduled trials. Requiring attorneys to reschedule other trials to accommodate the present case would do no more than force another circuit court in another proceeding (and the parties therein) to bear the burden of delay and perhaps fail to meet statutory time deadlines.

¶ 39. November 3, the first date offered by the circuit court, was within the statutory time period. The guardian ad litem for one set of children would have been unable to attend the final day of the week-long trial had it been held the week of November 3, 2003. The assistant district attorney had a trial scheduled during this week.

¶ 40. The next available circuit court trial date after November 3 was December 15, 2003. During the week of December 15, the assistant district attorney and the attorney for one of the mothers were both scheduled to be in trial. In addition, one of the guardians ad litem was unavailable.

¶ 41. The circuit court proceeded to schedule the trials for the next two available trial dates, January 29 and March 8. Robert K.'s other children were assigned the January 29 date because the lawyer for Moriah and Briar's mother had two other cases scheduled on that date. Each trial was scheduled to be one week long and each required the presence of Robert K. Working within these restrictions, the circuit court scheduled the trials back-to-back, within the confines of its six-week trial cycle. These dates were the first practicable dates for all involved.

¶ 42. The following exchange is illustrative of the difficulties faced by the parties and the circuit court in setting a date for the fact-finding hearings. December 15 met with the following objections:

THE COURT: Okay. Next date I have available is December 15th.
MS. ACKERMAN [ASSISTANT DISTRICT ATTORNEY]: I'm in trial.
MS. SMITH [GUARDIAN AD LITEM FOR JUSTIN, COLT, AND CODY]: I'm out of the country.
MR. ROTHSTEIN [ATTORNEY FOR MOTHER OF BRIAR AND MORIAH]: I'm in a jury trial.

¶ 43. The record supports the State's description of the dilemma faced by the circuit court in scheduling the fact-finding hearing within the time periods of Wis. Stat. § 48.422(2):

The efforts of the court were stymied by the complexity and size of Robert K.'s family structure, which resulted in the need for multiple counsel to be appointed for the mothers of his children, the need to separate his children into two groups so that the trials could be as straight forward as possible (using the GAL for each set of children that had represented them in the CHIPS proceedings and knew the history of the case), and the need for a full week of trial time given the volume of documents produced by the work of the BMCW [Bureau of Milwaukee Child Welfare] on Robert K.'s behalf.

¶ 44. Rather than scheduling a hearing on a date at which some would be absent, and risking a continuance based upon their absence, the circuit court found dates suitable to all parties involved. The circuit court was then committed to those dates, declaring that they were "written in stone."

¶ 45. The circuit court made clear that it would not consider an adjournment request by any party once the fact-finding hearing dates were set:

MR. McLINDEN [ATTORNEY FOR ROBERT K.]: These dates are going to stay?
THE COURT: You bet. We are not changing — the substitution is not going to change dates. We have eight judges out here. I will rope one of them into making sure that they will be doing this case on those dates, and I will be doing their calendar. We are not going to change dates.... [I]f there is a substitution filed on me, the dates would stay the same... . We all know that if that should happen, the dates are going to stay the same because the civil judge who gets this case— because we have in effect nine available judges to do this case, ten, so the dates are written in stone. Okay?

¶ 46. Were we faced with a case in which the circuit court's calendar was not based on a six-week cycle, in which parties and attorneys were not required for two trials, and in which the requests for different dates were premised on less valid concerns than conflicting court appearances, we might not be persuaded that the individuals were acting in good faith, given the importance of the statutory time period. But where, as here, the circumstances made scheduling unusually troublesome, the record supports the existence of good faith.

¶ 47. The second factor in evaluating good cause is whether the objecting party has been prejudiced. Between the plea hearing and the fact-finding hearing, Robert K. did not have visitation rights to his children. He contends that he was prejudiced by the delay based upon his inability to see his children during that period of time.

¶ 48. While we are not insensitive to this concern, Robert K. has shown no prejudice relating to the outcome of the proceedings caused by scheduling the fact-finding hearing after the 45-day statutory time period ran.

¶ 49. Indeed, the delay in the hearing might have afforded Robert K. time to meet the conditions for safe return of the children within twelve months of the fact-finding hearing. When considering whether to terminate parental rights, a jury must consider "all evidence bearing on that question, including evidence of events and conduct occurring since the filing of the petition ... ." Thus, during the delay, Robert K. had the opportunity to change his behavior such that a jury could be convinced that he would meet the conditions for safe return of his children within twelve months of the fact-finding hearing.

¶ 50. The third factor in evaluating good cause is whether the dilatory party took prompt remedial action. This factor is not applicable here. There was no dilatory party. The circuit court offered each and every available trial week between the September 19 plea hearing and the fact-finding hearing scheduled in March. Each individual who expressed scheduling difficulties made an effort to be available at the next open trial date.

¶ 51. The fourth factor in evaluating good cause is the best interest of the child. Scheduling a fact-finding hearing when each parent, lawyer, and guardian ad litem can be present promotes an accurate determination of termination of parental rights and in the present case was in the best interest of the children.

¶ 52. Thus we conclude that all four factors were met in evaluating good cause under Wis. Stat. § 48.315(2).

¶ 53. Furthermore, the delay was no longer than necessary. In the instant case, the complexity and size of Robert K.'s family made it necessary to have multiple lawyers and guardians ad litem present. By scheduling the fact-finding hearing for a date beyond the 45-day time period, the circuit court ensured the appearance of and representation for all parties in this case. The facts of the instant case show that, given the circuit court's six-week trial cycle and the scheduling problems of the many attorneys, the delay was no longer than was necessary.

¶ 54. Not all cases will support a six-month time period between the plea hearing and the fact-finding hearing. Scheduling conflicts for the circuit court or the attorneys or litigants will not always constitute good cause. This court well understands the docket pressures in the circuit courts. Such pressures do not, however, relieve circuit courts of their responsibility to follow the strict time limits prescribed in the Children's Code and the legislative requirement that these matters be handled within the prescribed time periods. In the present case, the circumstances satisfy the good cause requirement of Wis. Stat. § 48.315(2).

¶ 55. Before we conclude, we urge each circuit court that relies on Wis. Stat. § 48.315(2) to cite the statute on the record; to state the basis for concluding good cause exists to continue, delay or extend a fact-finding hearing beyond the 45-day period between the plea hearing and the fact-finding hearing in a TPR proceeding; and to explain that the fact-finding hearing was not delayed longer than was necessary. In other words, the record should reflect the circuit court's concern with meeting the mandatory statutory time periods and protecting the rights of parents, children, and the public by making clear under § 48.315(2) the factors that influence its decision to delay, continue, or extend a hearing beyond the mandatory time periods.

¶ 56. When a circuit court states on the record its basis for finding good cause, the parties and reviewing courts are assured that the circuit court has considered the legislative directive for prompt disposition of TPR cases. With such a record, fewer appeals are likely to ensue based on whether good cause existed under Wis. Stat. § 48.315(2). While we recognize such a procedure might place a slight burden on the circuit court, this burden is outweighed by the substantial benefit to the parties, the public, and the legal system.

¶ 57. We reiterate the importance of complying with the statutorily mandated time period. Circuit courts must take seriously the time periods the legislature has established in the Children's Code. A child's calculation of time differs from an adult's. "What seems like a short wait to an adult can be an intolerable separation to a young child to whom a week can seem like a year and a month forever." Therefore, it is incumbent upon a circuit court to minimize the uncertainty in a child's life and to protect constitutional rights by concluding a proceeding on termination of parental rights with dispatch. A circuit court's failure to comply with the statutory time periods may result in loss of competency to proceed.

¶ 58. We affirm the decision of the court of appeals and order of the circuit court, but on different grounds than relied upon by those courts. We conclude that a continuance may be granted under Wis. Stat. § 48.315(2), independent of the other grounds for a continuance specified in § 48.315(1), and that the record in the present case establishes good cause under § 48.315(2) for holding the fact-finding hearing beyond the 45-day time period. Therefore, we conclude that the circuit court did not lose competency to proceed with the fact-finding hearing. Because we hold that good cause existed to hold the fact-finding hearing more than 45 days after the contested plea hearing, we do not address the issue upon which the circuit court ruled, that is, whether a guardian ad litem's acquiescence in the circuit court's setting the fact-finding hearing beyond the 45-day period fulfills the consent requirement of Wis. Stat. § 48.315(l)(b).

¶ 59. Accordingly, we affirm the decision of the court of appeals.

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

JON E WILCOX, J.

¶ 60. (concurring). I agree with the majority that a continuance may be granted directly under Wis. Stat. § 48.315(2) (2003-04). Furthermore, I agree that a proper continuance was granted in this case, as the record establishes the requisite good cause under § 48.315(2). I write separately to address my concern that the majority does not adequately recognize the problems of court congestion and that such congestion may, in appropriate instances such as this, constitute good cause for a continuance.

¶ 61. The problems in conducting the fact-finding hearing beyond the 45-day time limit mandated by Wis. Stat. § 48.422(2) were not limited to lawyer and litigant scheduling problems. Another significant problem, but discussed only offhand by the majority, was the lack of available dates in the court's calendar. Notably, the court needed a full week of trial time to properly hear all of the evidence, given the volume of documents produced by the Bureau of Milwaukee Child Welfare.

¶ 62. The week of November 3, 2003, was the first available time frame on the circuit court's calendar. The fact-finding hearing would have been within the 45-day time period required under § 48.422(2) on this date. When the assistant district attorney and one of the guardians ad litem notified the court of scheduling conflicts, Robert K. argues that there was no reason given for why dates prior to November 3 were never considered.

¶ 63. I believe that it is readily apparent that court congestion was a significant factor in the delay of this case. There simply were no other dates prior to November 3 available for a full week of trial time. The Milwaukee County Children's Court is on a tight six-week scheduling system that makes it extremely difficult in complicated TPR cases such as this one, to meet the strict timing demands of the Children's Code despite the best efforts of a sometimes overwhelmed judiciary.

¶ 64. Indeed, Wisconsin case law has recognized that court congestion may be a legitimate reason for granting a continuance. As the court of appeals has stated: "A continuance can be granted by a court to a party under § 48.315(2) for court congestion provided that good cause is shown and the trial court does so in a timely manner on the record." In re J.R., 152 Wis. 2d 598, 607, 449 N.W.2d 52 (Ct. App. 1989); accord State v. April O., 2000 WI App 70, ¶ 9, 233 Wis. 2d 663, 607 N.W.2d 927.

¶ 65. It is no secret that court congestion is a serious problem that plagues the Milwaukee County Children's Court and affects its ability to meet the statutory deadlines of Chapter 48. Granted, congestion may not constitute good cause in every instance, but in this case, congestion clearly was an important factor that bore on the decision to extend the time beyond the 45-day limit between the hearing on the petition and the fact-finding hearing. As such, the court should take this opportunity to acknowledge that congestion may constitute good cause sufficient for a continuance under § 48.315(2) in appropriate instances.

¶ 66. I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this concurrence.

        State v. Robert K., Nos. 2004AP2330, 2004AP2331, unpublished slip op. (Wis. Ct. App. Nov. 16, 2004).

       All references to the Wisconsin Statutes are to the 2003-2004 version unless otherwise noted.

       Wisconsin Stat. § 48.422(2) states: "If the petition [to terminate parental rights] is contested the court shall set a date for a fact-finding hearing to be held within 45 days of the hearing on the petition ...."

       Wisconsin Stat. § 48.315(l)(b) states: "(1) The following time period shall be excluded in computing the time requirements within this chapter: ... (b) Any period of delay resulting from a continuance granted at the request of or with the consent of the child and his or her counsel or of the unborn child by the unborn child's guardian ad litem."

       Wisconsin Stat. § 48.315(2) provides:
      A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.

       We may affirm a judgment or order of the circuit court and a decision of the court of appeals on different grounds than those relied upon by those courts. State v. Scheidell, 227 Wis. 2d 285, 311 n.14, 595 N.W.2d 661 (1999) (citing Koestler v. Pollard, 162 Wis. 2d 797, 809 n.8, 471 N.W.2d 7 (1991), and Liberty Trucking Co. v. DIHLR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973)).

       Robert K. is also the biological father of Justin K. and Cody and Colt K., for whom TPR proceedings were commenced at the same time as those for Briar and Moriah K. In addition, another child was involved in the TPR proceedings, Isiah B., the son of Briar and Moriah's mother but not of Robert K. The four other children were involved in TPR proceedings but are not subject to this review.

       Wis. Stat. § 48.415(2).

       Wis. Stat. § 48.415(6).

       Wisconsin Stat. § 48.422(1) provides: "The hearing on the petition to terminate parental rights shall be held within 30 days after the petition is filed."

       One guardian ad litem was appointed to represent Justin K. and Cody and Colt K. The other guardian ad litem represented Isiah B. and Briar and Moriah K.

       Apparently each of the eight courts comprising the Milwaukee County Children's Court set aside one week for intake, one week for initial appearances, one week for trial, and so on.

       No party waived the 45-day statutory time period by failing to object in circuit court to the circuit court's scheduling the fact-finding hearing in March. A competency challenge based on a court's failure to act within a statutory time period cannot be waived by the failure to object in circuit court. Sheboygan County Dep't of Social Servs. v. Matthew S., 2005 WI 84, ¶ 30, 282 Wis. 2d 150, 698 N.W.2d 631 (TPR case involving 45-day time period between contested plea hearing and fact-finding hearing).

        See Matthew S., 282 Wis. 2d 150, ¶¶ 16, 36; State v. April O., 2000 WI App 70, ¶ 5, 233 Wis. 2d 663, 607 N.W.2d 927; T.H. v. La Crosse County, 147 Wis. 2d 22, 27-31, 33, 433 N.W.2d 16 (Ct. App. 1988).

        Matthew S., 282 Wis. 2d 150, ¶ 36 ("Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children's Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315.").

       The time period between the plea hearing on September 19, 2003, and the fact-finding hearing on March 8, 2004, was almost six months, approximately four and one-half months beyond the 45-day time period.

        April O., 233 Wis. 2d 663, ¶ 6 (TPR relating to 30-day statutory period between filing of petition and plea and 45-day statutory period between fact-finding hearing and disposition hearing).

        State v. Morford, 2004 WI 5, ¶ 19, 268 Wis. 2d 300, 674 N.W.2d 349.

       See any dictionary.

         See, e.g., State v. Quinsanna D., 2002 WI App 318, ¶¶ 25-26, 259 Wis. 2d 429, 655 N.W.2d 752 (TPR case; at conclusion of fact-finding hearing, circuit court scheduled disposition proceeding beyond the 45-day time period under Wis. Stat. § 48.424(2) for scheduling disposition hearing).

        M.G. v. La Crosse County Human Servs. Dep't, 150 Wis. 2d 407, 418, 441 N.W.2d 227 (1989) (CHIPS case).

         M.G., 150 Wis. 2d at 418 (holding good cause existed for extension of time in CHIPS case).

       Although Wis. Stat. § 48.315 (in the Children's Code) and Wis. Stat. § 938.315 (in the Juvenile Justice Code) are substantially similar, § 938.315(l)(dm) has no counterpart in § 48.315. Section 938.315(l)(dm) reads as follows:
      The following time periods shall be excluded in computing time requirements in this chapter:
      . . . Any period of delay resulting from court congestion or scheduling.
      Chapter 938 was created by 1995 Wis. Act 77. Wisconsin Stat. § 938.315(l)(dm) was added by 1995 Wis. Act 354. The drafting history reveals that Wis. Stat. § 938.315(l)(dm) was added to codify the ruling in J.R. v. State, 152 Wis. 2d 598, 607, 449 N.W.2d 52 (Ct. App. 1989), a juvenile justice case holding that "[a] good cause adjournment of a fact-finding hearing by a trial court sua sponte due to court congestion is a proper method to adjourn the fact-finding hearing." See Letter from Racine County District Attorney Robert Flancher to Representative Bonnie Ladwig, Feb. 13, 1996, Drafting Records to 95 Wis. Act 352 (available at Legislative Reference Bureau, Madison, Wis.).
      Nothing in the legislative history indicates that the legislature was trying to distinguish in this manner Wis. Stat. §§ 938.315 and 48.315.

        Quinsanna D., 259 Wis. 2d 429, ¶ 39.

       The State's motion to strike arguments from Robert K.'s brief relating to whether there was good cause to hold the hearing outside of the 45-day time limit and whether the hearing was continued for only so long as necessary is denied.

       We contrast the present case with other cases in which good cause was not found. In Matthew S., 282 Wis. 2d 150, ¶¶ 2, 6, 36, involving scheduling a fact-finding hearing beyond the 45-day time period, the circuit court lost competency because it failed to grant a proper extension or continuance on the record in open court. The circuit court rescheduled the fact-finding hearing based on letters written by the deputy district attorney and the father's attorney requesting a continuance. In contrast, the record in this case shows that the circuit court granted a continuance in open court prior to the expiration of the 45-day time period.
      In April O., 233 Wis. 2d 663, ¶¶ 3, 11, the court of appeals held that the circuit court lost competency for a dispositional hearing because "it did not properly extend the time limit by finding, before the time limit [under § 48.424(4)] expired and in open court, that good cause existed."

        Quinsanna D., 259 Wis. 2d 429, ¶ 38 (a TPR case; quoting R.A.C.E v. State, 157 Wis. 2d 106, 113, 458 N.W.2d 823 (Ct. App. 1990)).

         R.A.C.P. v. State, 157 Wis. 2d 106, 113, 458 N.W.2d 823 (Ct. App. 1990)(a TPR case).

        M.G., 150 Wis. 2d at 418 n.12 (CHIPS case; quoting with approval F.E.W. v. State, 143 Wis. 2d 856, 861, 422 N.W.2d 893 (Ct. App. 1988) (delinquency case)).

       Robert K. argues that the court could have scheduled one of the trials to be heard in front of another judge. The record does not show, however, whether another court was available.

       Wis. Stat. § 48.415(2)(a)3.

       Wis JI — Children 324.

       This court has previously stated its preference for explicit reasoning on the record when granting continuances, extensions, or delays: "We suggest that trial judges when addressing these questions [concerning extensions of time] refer directly to and cite the appropriate statutory provision." M.G., 150 Wis. 2d at 418 (CHIPS case).

       The federal courts have recognized that Milwaukee County has had difficulties disposing of adoption-related cases quickly and effectively. The Milwaukee County foster care system is currently operated under the supervision of a consent decree entered by a federal court. See Jeanine B. v. McCullum, No. 93-C-0547, consent decree (E.D. Wis. June 19, 2001). The consent decree is premised on the Adoption and Safe Families Act of 1997 (ASFA). For discussions of ASFA, see Thomas J. Walsh, The Clock Is Ticking: Do the Time Limits in Wisconsin's Termination of Parental Rights Cases Serve the Best Interests of Children?, 83 Marq. L. Rev. 743 (2000); Madelyn Freundlich, Expediting Termination of Parental Rights: Solving a Problem or Sowing the Seeds of a New Predicament?, 28 Cap. U. L. Rev. 97 (1999); Stephanie Jill Gendell, In Search of Permanency: A Reflection on the First 3 Years of the Adoption and Safe Families Act Implementation, 39 Fam. Ct. Rev. 25 (2001).

        T.H. v. La Crosse County, 147 Wis. 2d 22, 37, 433 N.W.2d 16 (Ct. App. 1988) (delinquency case; citing The Model Statute for Termination of Parental Rights, reprinted in The National Bench Book for Juvenile Courts 154 (rev. ed. 1979)).

       All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.