text:
    State of Wisconsin, Plaintiff-Respondent, v. Lawrence P. Peters, Jr., Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-1940-CR.

      Oral argument April 12, 2001.

    Decided June 28, 2001.

    2001 WI 74
    (Also reported in 628 N.W.2d 797.)

      For the defendant-appellant-petitioner there were briefs by Jane Krueger Smith, Oconto Falls, and oral argument by Jane Krueger Smith.

    For the plaintiff-respondent the cause was argued by William L. Gansner, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. This case concerns the extent to which a defendant may collaterally attack a prior conviction in a subsequent criminal case where the prior conviction is used to enhance the sentence for the subsequent crime. Earlier this term, in State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, we followed Custis v. United States, 511 U.S. 485 (1994) and held that a defendant generally may not collaterally attack a prior conviction in a subsequent criminal case where the prior conviction enhances the subsequent sentence. There is an exception, however, for a collateral attack based upon an alleged violation of the defendant's right to counsel. Hahn, 238 Wis. 2d at 903-04; see also Custis, 511 U.S. at 495-96.

¶ 2. Defendant Lawrence P. Peters, Jr. was charged with fifth offense operating after revocation of license (OAR). In order to prevent the progressively higher penalties that flow from repeat OAR offenses, Peters moved to invalidate his second OAR conviction, alleging that the no contest plea upon which it was based was entered without counsel by closed-circuit television from the county jail, in violation of his statutory and constitutional rights.

¶ 3. The circuit court entertained the collateral challenge and held that any error related to the closed-circuit television plea was harmless. The court of appeals affirmed, concluding that while the defendant's statutory procedural rights had been violated, no constitutional violation requiring reversal had occurred. State v. Peters, 2000 WI App 154, ¶ 10, 237 Wis. 2d 741, 615 N.W.2d 655.

¶ 4. We view this case as falling within the right-to-counsel exception to the general rule against collateral attacks on prior convictions. We hold that Peters may, in the context of this prosecution for fifth offense OAR, collaterally challenge his second OAR conviction, because the no contest plea upon which it was based was entered without counsel. We do not address the defendant's challenge to the constitutionality of closed-circuit television guilty or no contest pleas. We reverse and remand for consideration of whether Peters knowingly and voluntarily waived his right to counsel before pleading no contest to second offense OAR.

I — I

¶ 5. The facts are undisputed. On April 14,1999, Peters was cited for fifth offense OAR contrary to Wis. Stat. § 343.44(1). Peters moved to invalidate his second OAR conviction in an effort to prevent its use for penalty enhancement purposes in the fifth offense prosecution.

¶ 6. Peters' second offense OAK conviction was entered in Shawano County Circuit Court on April 4, 1996, at an initial appearance conducted by the Honorable Earl W. Schmidt, Jr. The prosecutor and the judge were present in the courtroom. Peters, who was incarcerated in the Shawano County Jail, appeared by closed-circuit television without counsel.

¶ 7. The transcript reflects that at the beginning of the initial appearance, the prosecutor offered a plea bargain on the second offense OAR and a companion drunk driving charge. After the prosecutor announced the plea offer, the circuit court addressed Peters briefly about his right to counsel:

THE COURT: Now, the Court advises you, Mr. Peters, that you have a right to an attorney. If your income and assets are at the level the State Public Defender sets, the State Public Defender would represent you. You may, however, waive your right to an attorney and proceed without one. But if you wish to have an attorney, the Court would take steps for you to go out and get one. Do you wish to have an attorney?
THE DEFENDANT: No, Sir.
THE COURT: You want to proceed without one?
THE DEFENDANT: Yes, Sir.

¶ 8. Peters then entered no contest pleas and was sentenced on the OAR and drunk driving charges, consistent with the plea bargain. He did not directly challenge either conviction by postconviction motion or appeal.

¶ 9. Three years and two OAR convictions later, after receiving his fifth OAR citation and facing the prospect of the enhanced penalties that accompany repeat OARs, Peters moved to invalidate the 1996 OAR conviction, focusing his argument on alleged statutory and constitutional infirmities in the closed-circuit television proceeding. Peters claimed that his no contest plea, entered without counsel and by "live audio-visual means," violated his right to be present at plea and sentencing and his right to have the court personally address him and to personally address the court. He also claimed that his waiver of counsel was inadequate under State v. Klessig, 211 Wis. 2d 194, 201, 564 N.W.2d 716 (1997).

¶ 10. The circuit court, the Honorable Thomas G. Grover, allowed the collateral challenge but declined to invalidate Peters' 1996 OAR conviction. The court concluded that the plea and sentencing by closed-circuit television "probably" violated statutory procedural requirements, but found the violation harmless. The court also held that because Klessig was decided after Peters' 1996 case, the rules it established for waiver of counsel did not apply. The court did not otherwise evaluate the voluntariness of the defendant's waiver of counsel.

¶ 11. Peters then pled no contest to fifth offense OAR. This time he appealed. Hahn had not yet been decided, and so the court of appeals applied State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), which held that a defendant may collaterally challenge a prior conviction if the challenge implicates a constitutional right that would affect the reliability of the prior conviction. Peters, 237 Wis. 2d at ¶ 6. The court of appeals affirmed, finding a statutory but not a constitutional violation. Id.

¶ 12. The court of appeals concluded that the plea and sentencing by closed-circuit television violated Wis. Stat. § 971.04(1), which guarantees a defendant's right to be present in the courtroom at arraignment and imposition of sentence (among other points in the criminal process). The court concluded, however, that this statutory violation did not "automatically translate into a constitutional violation." Id. at ¶ 10. The court rejected Peters' argument that a no contest plea entered without counsel by closed-circuit television from the county jail is inherently coercive and therefore unreliable. Id. at ¶ 13. Instead, the court concluded that because the hearing was otherwise procedurally correct, the statutory violation did not render the 1996 OAR conviction unfair or unreliable. Id. We accepted review.

II

¶ 13. The threshold question in this case is the extent to which Peters is entitled to collaterally attack his second OAR conviction in this prosecution for fifth offense OAR. This is a question of law that we review de novo. See State v. Woods, 117 Wis. 2d 701, 715-16, 345 N.W.2d 457 (1984).

¶ 14. The court of appeals applied Baker, which was limited by our recent decision in Hahn. We held in Hahn that a defendant generally may not collaterally attack the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges a violation of his constitutional right to counsel. Hahn, 238 Wis. 2d at 903.

¶ 15. Our decision in Hahn was based upon Cus-tis, in which the United States Supreme Court held that a defendant does not have a constitutional right to collaterally attack a prior conviction used to enhance a subsequent criminal sentence unless he alleges a violation of his right to counsel under Gideon v. Wainright, 372 U.S. 335 (1963). Hahn, 238 Wis. 2d at ¶ 29; see also Custis, 511 U.S. at 496. We noted inHahn that we were "bound as a matter of federal constitutional law" by the primary holding of Custis, and that the Supreme Court's concerns about ease of administration and finality of judgments weighed in favor of a bright-line rule against collateral attacks, with the limited exception of right-to-counsel violations. Hahn, 238 Wis. 2d at ¶¶ 28-29.

¶ 16. We noted, however, that a defendant "may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence." Id. That is, a defendant may directly rather than collaterally challenge a prior conviction used to enhance a subsequent sentence, and if successful, apply to the court to have the enhanced sentence adjusted. We added that "[i]f the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence." State v. Hahn, 2001 WI 6, ¶ 2, 241 Wis. 2d 85, 621 N.W.2d 902, modifying 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528.

¶ 17. After oral argument in this case, the United States Supreme Court issued two opinions expanding the Custis bar on collateral challenges to prior convictions used to enhance subsequent sentences. In Daniels v. United States, — U.S. —, 121 S.Ct. 1578 (2001), the Supreme Court held that a federal prisoner may not challenge his federal enhanced sentence by postconviction motion under 28 U.S.C. § 2255 on the ground that a prior state conviction was unconstitutionally obtained. In Lackawanna County District Attorney v. Coss,—U.S. —, 121 S.Ct. 1567 (2001), the Court held that a state prisoner may not challenge his state enhanced sentence by federal habeas corpus under 28 U.S.C. § 2254 on the ground that a prior state conviction was unconstitutionally obtained. Both decisions maintained the exception, preserved in Custis, for alleged right to counsel violations.

¶ 18. Peters focuses his argument here on the Sixth Amendment and due process implications of conducting a plea and sentencing hearing by closed-circuit television from jail. Whether the defendant is entitled to mount this sort of constitutional challenge to a prior conviction collaterally rather than directly (or at all) depends upon an interpretation of the above-quoted language in Hahn, and the influence, if any, of the Supreme Court's recent opinions in Daniels and Lackawanna County. We do not address this issue, however, because the record reflects an arguable right-to-counsel violation, which is clearly established as an exception to the rule against collateral attacks on prior convictions.

¶ 19. Peters premised his right-to-counsel argument in the circuit court on an alleged violation of Klessig, 211 Wis. 2d at 201. In Klessig, we mandated "the use of a colloquy in every case where a defendant seeks to proceed pro se to prove knowing and voluntary waiver of the right to counsel." Id. at 206. That is, Klessig requires the circuit court to address the defendant personally and specifically:

[T]o ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed upon him. . .If the circuit court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel.

Id.

¶ 20. The circuit court properly noted that Kles-sig had not yet been decided when Peters waived counsel and was convicted of second offense OAR in 1996, and therefore the specific four-part colloquy was not required. The circuit court did not, however, go on to evaluate whether Peters' waiver of counsel was valid under the law prevailing at the time.

¶ 21. In Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), we held that:

[I]n order for an accused's waiver of his right to counsel to be valid, the record must reflect not only his deliberate choice to proceed without counsel, but also his awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he is facing and the general range of possible penalties that may be imposed if he is found guilty. Unless the record reveals the defendant's deliberate choice and his awareness of these facts, a knowing and voluntary waiver [of counsel] will not be found.

Pickens required an examination of the totality of the record in order to determine the validity of a waiver of counsel. We do not have a complete record before us on the 1996 OAR conviction and therefore cannot determine the validity of Peters' waiver of counsel under Pickens.

¶22. Accordingly, because this prosecution for fifth offense OAR is predicated in part on a prior OAR conviction that was obtained when Peters was not represented by counsel, we conclude that it falls within the right-to-counsel exception to the general rule against collateral attacks on prior convictions used to enhance subsequent penalties. We reverse and remand to the circuit court for consideration of whether the record in the 1996 case reflects a knowing and voluntary waiver of counsel under Pickens.

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

       All statutory references are to the 1995-96 edition, unless otherwise indicated.


source: Caselaw Access Project

author: DIANE S. SYKES, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. T.J. International, Inc., Defendant-Appellant, Norco Windows, Inc., Defendant, Jeld-Wen, Inc., Defendant-Co-Appellant.
    Supreme Court

      No. 99-2803.

      Oral argument February 27, 2001.

    Decided June 28, 2001.

    2001 WI 76
    (Also reported in 628 N.W.2d 774.)

      For plaintiff-respondent-petitioner the cause was argued by Jerry L. Hancock, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For defendant-appellant, T.J. International, Inc., there was a brief by Robert H. Duffy, Amy Pope Brock, and Quarles & Brady, LLP, Milwaukee, and oral argument by Robert H. Duffy.

    For defendant-co-appellant, Jeld-Wen, Inc., there was a brief by Lawrence T. Lynch, Anne Berleman Kearney, and Foley & Lardner, Milwaukee, and oral argument by Lawrence T. Lynch.

    An amicus curiae brief was filed by Sandra Graf Radtke and Murphy, Gillick, Wicht & Prachthauser, Brookfield, on behálf of the Midwestern Industrial Council, United Brotherhood of Carpenters & Joiners of America
   DIANE S. SYKES, J.

¶1. This case arises under Wisconsin's Business Closing and Mass Layoff Law, Wis. Stat. § 109.07 (1995-96), and presents the question of whether a "business closing" under the statute includes the sale of business assets where there is no interruption in business operations and the "business" is therefore not actually "closed." The statute requires employers to give 60-days' notice — to their employees and certain government officials — of any "business closing," defined as a "permanent or temporary shutdown of an employment site."

¶ 2. Defendant Norco Windows, Inc. sold its window manufacturing plant in Hawkins, Wisconsin, to defendant Jeld-Wen, Inc. The plant continuously operated without interruption during the transfer of ownership, and Jeld-Wen hired all but 47 of the 396 Norco employees who applied for jobs with the new ownership.

¶ 3. The employees' collective bargaining representative filed a complaint with the Department of Workforce Development, alleging a violation of the business closing law. The Department concluded that the sale constituted a "business closing" under the statute, and ordered both the seller and the buyer to pay penalties for failure to give notice. The circuit court agreed. The court of appeals did not, and reversed.

¶ 4. We conclude that the definition of "business closing" in Wis. Stat. § 109.07(1)(b) does not include the sale of business assets where there is no actual operational shutdown — permanent or temporary — of the employment site. Where, as here, the transfer of ownership continues rather than interrupts or ceases the operation of the employment site, there is no "business closing" under the statute, and no 60-day notice of the sale is required. Accordingly, we affirm the court of appeals' reversal of the judgment of the circuit court.

H

¶ 5. The facts are stipulated. Norco windows have been manufactured in Hawkins, Wisconsin, for more than 75 years. In 1996 the plant was owned by Norco Windows, Inc., a division of T.J. International, Inc. On July 1, 1996, Norco sold the business to Jeld-Wen, Inc. pursuant to an asset purchase agreement that had been negotiated during the several months leading up to the sale.

¶ 6. On April 8, 1996, Norco sent its employees the first of two letters detailing its intention to sell the plant. This first letter informed employees that T.J. International had signed a letter of intent to sell 100 percent of Norco Windows to Jeld-Wen. The letter also indicated that Jeld-Wen would continue to operate Norco's existing manufacturing facilities and that total employment at those facilities was expected to remain at approximately 700 people.

¶ 7. In the second letter, dated June 7, 1997, Norco informed its employees that because the sale was an asset-based transaction, they would no longer be employed by Norco after the deal was closed. Norco also stated its understanding that Jeld-Wen would accept applications from any Norco associates interested in working for Jeld-Wen, and indicated that further information on the application process would be forthcoming. The letter emphasized that "Jeld-Wen will make all hiring decisions for its work force, and any failure by Jeld-Wen to hire an associate should be expected to be permanent."

¶ 8. On the same day, Jeld-Wen also sent a letter to all Norco employees discussing its plan to buy the facility. Jeld-Wen stated that, while it had not yet made any decisions about the details of employment at the plant, it would be offering an "attractive package of wages and fringe benefits," and all Norco employees would be given an opportunity to apply.

¶ 9. The sale was closed on July 1, 1996. At that time, Norco and Jeld-Wen executed an amendment to the asset purchase agreement stating that Jeld-Wen agreed to:

[M]ake all reasonable efforts to hire substantially all of Seller's employees to operate Buyer's new business at each acquired plant site.
Nothing contained in this Section shall in any way give any rights to any person or entity other than Buyer, Seller or Surety.

¶ 10. Simultaneous with the sale, Norco terminated its 459 employees at the Hawkins plant. During and after the change of ownership, operations at the plant continued without interruption, and the parties affirmatively stipulated that the sale "was not a temporary cessation in business operations." Jeld-Wen hired 349 of the 459 Norco employees. The majority of these employees missed no work. Sixty-three former Norco employees chose not to apply with Jeld-Wen. In all, only 47 former Norco employees who did apply were not hired by Jeld-Wen.

HH I — !

¶ 11. Shortly before the sale was finalized, on June 21, 1996, James Lee, union president of Local 1801, United Brotherhood of Carpenters and Joiners of America, filed a complaint against Norco with the Equal Rights Division of the Department of Workforce Development (the Department), pursuant to Wis. Stat. § 109.07(4). The complaint alleged that Norco had failed to give 60-days' notice "that the plant would be closed July 1 and reopened by a new owner."

¶ 12. The Department issued its initial determination on July 18,1997, concluding that the asset sale constituted a "business closing" within the meaning of Wis. Stat. § 109.07(1)(b), and that Jeld-Wen violated the statute by failing to provide 60-days' written notice to those Norco employees who were not hired within six months of the sale. The Department also concluded that Norco violated the statute by failing to give 60-days' notice of the "business closing" to the president of the village board of trustees or to the village manager for the Village of Hawkins. See Wis. Stat. § 109.07(4m)(a). The Department ordered Jeld-Wen to pay penalty wages and benefits totaling $306,455.04, and a fine of $30,000 ($500 per day surcharge provided in Wis. Stat. § 109.07(4m)(a) for failing to notify the highest official of the Village of Hawkins).

¶ 13. Norco, Jeld-Wen, and the union each requested a review of the initial determination, and on September 15, 1997, the Department issued a final determination, affirming and adopting the initial determination in its entirety, with the exception of the penalty wage calculations. The final determination reexamined the penalty wage calculations and concluded that extra payments made to affected employees should be deducted from the overall wage penalty liability.

¶ 14. On November 25, 1997, the Department issued an amended final determination which concluded that both the initial determination and the final determination erred by ordering Jeld-Wen, rather than T.J. International, to pay the surcharge provided in Wis. Stat. § 109.07(4m)(a). The Department also determined that the penalties owed to the affected employees should be reduced by the severance payments paid by T.J. International. The amended final determination set the amount of penalty wages at $187,590.31.

¶ 15. On December 12, 1997, the Department referred the case to the Department of Justice for recovery of the penalties, pursuant to Wis. Stat. § 109.07(4)(b). On March 11, 1998, the State filed a complaint in Rusk County Circuit Court. The complaint alleged that the sale of business assets at the Hawkins plant was a "business closing" within the meaning of § 109.07(l)(b), and that the defendants failed to comply with the statute's notice requirements by failing to give 60-days' written notice.

¶ 16. The facts were stipulated and all parties moved for summary judgment. The State argued that the sale of Norco's assets to Jeld-Wen constituted a "business closing" under the statute, requiring 60-days' notice, which was not given. T.J. International (for itself and Norco) and Jeld-Wen argued that the asset sale was not a "business closing," and even if it was, the amendment to the asset purchase agreement, in which Jeld-Wen agreed to "make all reasonable efforts to hire substantially all" of Norco's employees, was sufficient to trigger a statutory exception to liability for failure to give notice. See Wis. Stat. § 109.07(6). Additionally, Jeld-Wen moved for dismissal on two jurisdictional grounds: (1) that it had never been named as an employer in the initial claim filed with the Department, and (2) that the Department failed to comply with Wis. Stat. § 109.07(4)(b) by not referring the claim to the State within 180 days after the claim was filed with the Department.

¶ 17. The Circuit Court for Rusk County, Judge Frederick A. Henderson, granted the State's motion for summary judgment. After resolving the jurisdictional issues against Jeld-Wen, the court accepted the State's argument that the asset sale constituted a "business closing" under the statute. The court also concluded that the amendment to the asset purchase agreement was inconsistent with the language of the statutory exception, and, in any event, since Jeld-Wen did not hire substantially all affected employees, the exception to liability for failure to give notice did not apply.

¶ 18. The court of appeals reversed, concluding that the plain language of the statute's definition of "business closing" required a "permanent or temporary shutdown of an employment site," and because the Hawkins plant never shut down, there was no "business closing" within the meaning of the statute. State v. T.J. Int'l, Inc., 2000 WI App 181, ¶ 10, 238 Wis. 2d 173, 617 N.W.2d 256. We accepted the State's petition for review.

f — I y — i hH

¶ 19. We review a circuit court order granting or denying a motion for summary judgment independently, using the same methodology as the circuit court. Jankee v. Clark County, 2000 WI 64, ¶ 48, 235 Wis. 2d 700, 612 N.W.2d 297. Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 20. The summary judgment motion in this case was submitted on stipulated facts and presents a question of statutory interpretation, which we review de novo. State v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774 (1996). Statutory interpretation begins with the language of the statute, and if the language is plain and unambiguous, we apply it without further inquiry into extrinsic interpretive aids. UFE Inc. v. LIRC, 201 Wis. 2d 274, 281, 548 N.W.2d 57 (1996). If statutory language is ambiguous, that is, if" 'reasonable minds could differ as to its meaning,'" we look to the scope, history, context, subject matter, and purpose of the statute to help establish its proper interpretation. Brauneis v. LIRC, 2000 WI 69, ¶ 21, 236 Wis. 2d 27, 612 N.W.2d 635 (quoting Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995)).

IV

¶ 21. This claim arises under Wis. Stat. § 109.07, Wisconsin's Business Closing and Mass Layoff Law. Everyone agrees that the relevant statutory language is unambiguous.

¶ 22. The law requires certain employers to provide their employees and specified government officials with 60 days' written notice of a "business closing" or "mass layoff'. More specifically, the statute provides in relevant part:

Subject to sub. (5) or (6), an employer who has decided upon a business closing or mass layoff in this state shall promptly notify the subunit of the department that administers s. 106.15, any affected employe, any collective bargaining representative of any affected employe, and the highest official of any municipality in which the affected employment site is located, in writing of such action no later than 60 days prior to the date that the business closing or mass layoff takes place.

Wis. Stat. § 109.07(lm). The law is patterned after the federal Worker Adjustment and Retraining Notification Act (WARN), which establishes similar notification requirements in the event of a "plant closing" or "mass layoff' that results in an "employment loss." See 29 U.S.C. §§ 2101-09 (1999). The law applies to all business enterprises that employ 50 or more persons in this state. Wis. Stat. § 109.07(1)(d).

¶ 23. Before notice is required under the Wisconsin law, there must be an imminent "mass layoff" or "business closing." Wis. Stat. § 109.07(1m). These are defined terms. A "mass layoff' is "a reduction in an employer's work force that is not the result of a business closing and that affects. . .[a]t least 25% of the employer's work force or 25 employes, whichever is greater." Wis. Stat. § 109.07(1)(f)l. Jeld-Wen hired more than 75 percent of Norco's former employees, and so the State does not argue that a "mass layoff" occurred at the Hawkins plant. Instead, it characterizes the sale of the window factory as a "business closing."

¶ 24. A "business closing" is a "permanent or temporary shutdown of an employment site or of one or more facilities or operating units at an employment site or within a single municipality that affects 25 or more employes, not including new or low-hour employes." Wis. Stat. § 109.07(l)(b). The sale of the Hawkins plant, therefore, will amount to a "business closing" under the statute only if it has resulted in "a permanent or temporary shutdown of an employment site."

¶ 25. Words and phrases in a statute are interpreted in accordance with their ordinary and accepted meaning. Perrin v. United States, 444 U.S. 37, 42 (1979); Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 22, 241 Wis. 2d 605, 623 N.W.2d 94. A "shutdown" is "[a] cessation of operations or activity, as at a factory." The American Heritage Dictionary of the English Language 1674 (3d ed. 1992). A "site" is commonly understood to be "[t]he place where a structure or group of structures was, is, or is to be located.. .[t]he place or setting of something." Id. at 1688.

¶ 26. The State has stipulated that operations at the Hawkins plant never stopped at any point during the transfer of ownership; window manufacturing by former Norco employees continued there uninterrupted. Accordingly, no employment "site" was ever "shut down," either temporarily or permanently.

¶ 27. The State argues that even though there was no "shutdown" of the plant, there was a "shutdown" of Norco's employment site, because Norco ceased to be an employer there. But this is a strained reading of the statute, essentially rewriting it to apply whenever a particular business owner exits the scene, even if there is continuity of operation under the new management and no permanent or even temporary shutdown of the employment site.

¶ 28. The definitional language of Wis. Stat. § 109.07(l)(b) makes no reference to the "employer," only to the "employment site." The legislature has therefore chosen to limit the application of this statute to business closures of "employment sites," defined by reference to geography or location rather than ownership. It follows, then, that a transfer of business asset ownership does not constitute a "business closing" unless it results in either a temporary or permanent shutdown in the operation of the employment site.

¶ 29. The surrounding references in the definition support this conclusion. The statute uses the phrase "shutdown of an employment site or of one or more facilities. . .at an employment site or within a single municipality." Wis. Stat. § 109.07(1)(b) (emphasis added). This reference to facilities "at an employment site or within a single municipality" reinforces the legislative focus on geographic location rather than ownership. A sale of business assets does not bring about a "business closing" within the meaning of this statute unless the old owner's departure or the new owner's arrival is accompanied by a temporary or permanent shutdown in the operation of the employment site.

¶ 30. The State points to one of the statute's exceptions as support for its argument that the sale of business assets constitutes a "business closing." Wisconsin Statute § 109.07(6) provides, among other things, an exception to liability for failure to give notice where the "business closing" or "mass layoff' is the result of the sale of part or all of an employer's business:

An employer is not liable under this section for a failure to give notice to any person under sub. (lm), if the department determines that the business closing or mass layoff is the result of any of the following:
(a) The sale of part or all of the employer's business, if the purchaser agrees in writing, as part of the purchase agreement, to hire substantially all of the affected employes with not more than a 6-month break in employment.

¶ 31. The State argues, apparently by implication, that the language of this exception demonstrates that business sales do in fact constitute "business closings" under the statute. We do not read the statute to mean that a business sale can never constitute a "business closing," only that some will and some won't, depending on the facts. A business sale that produces a temporary or permanent shutdown of the employment site is a "business closing," and in that event, the employer is excepted from liability for failure to give notice if the purchaser agrees in writing to hire substantially all the affected employees within six months. The exception does not modify the statutory definition of "business closing," which triggers the duty to give notice in the first place. Indeed, the exception is specifically tied to the definition, and by its terms applies only if a "business closing" or "mass layoff is the result of the sale of all or part of an employer's business. Nor does the exception provide an alternate basis for liability under the statute. Because we conclude that the sale of Norco's assets to Jeld-Wen did not result in a "business closing" under the statute, we do not reach the issue of whether Jeld-Wen's agreement to make "reasonable efforts" to hire "substantially all" of Norco's employees was sufficient to bring the exception into play.

¶ 32. We note that Wis. Admin. Code § DWD 279.002 (Apr., 2001), entitled "Interpretation" specifies that "[w]henever possible, this chapter will be interpreted in a manner consistent with the Federal Worker Adjustment and Retraining Notification Act, 29 USC 2101 et seq., the federal regulations and court decisions interpreting that Act to the extent that the provisions of federal and state law are the same." Both defendants cite federal cases interpreting the WARN Act in support of their positions. We agree with the State that none of these cases is particularly helpful to our analysis of the Wisconsin law.

¶ 33. First, WARN contains a provision that the Wisconsin law does not. 29 U.S.C. § 2101(b)(1), the "sales exception," excludes from the definition of "employment loss" a business sale that results in the "technical termination" of employment. Int'l Oil, Chemical & Atomic Workers, Local 7-517 v. Uno-Ven Co., 170 F.3d 779, 783-84 (7th Cir. 1999). Most of the cited cases invoke the sales exception in one way or another and are therefore inapposite: See Int'l Alliance of Theatrical & Stage Employees & Moving Picture Mach. Operators v. Compact Video Servs., Inc., 50 F.3d 1464, 1467-68 (9th Cir. 1995); Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 1280-82 (10th Cir. 1994).

¶ 34. One case cited by counsel, Reyes v. Greater Texas Finishing Corp., 19 F. Supp. 2d 709 (W.D. Texas 1998), does address the definition of "plant closing," but it does not do so within the context of a business sale and therefore does not assist our analysis. Finally, Eret v. Continental Holding, Inc., 838 F. Supp. 358 (N.D. Ill. 1993), discusses the statutory term "shutdown," but in the context of the Employee Retirement Income Security Act (ERISA), see 29 U.S.C. § 1001-53, and so it, too, is inapplicable here.

¶ 35. The State has one final argument. It says that its interpretation of the statute best effectuates the legislature's intent, which was to give workers a reasonable opportunity to provide for the future of their families during periods of economic uncertainty. We cannot quarrel with this extrapolation of general legislative purpose, as it is apparent on the face of the statute. But what the State really asks for is an expansion of the statute's application to circumstances plainly not covered by its text. The legislature explicitly confined the applicability of this law to permanent or temporary shutdowns of employment sites. This language cannot reasonably be read to include a business asset sale that does not shut down an employment site but, rather, continues it.

¶ 36. We conclude, therefore, that the notice requirements of Wisconsin's Business Closing and Mass Layoff Law, Wis. Stat. § 109.07, did not apply in this case, because the sale of the window manufacturing plant in Hawkins, Wisconsin, did not involve a permanent or temporary shutdown of the employment site there. Accordingly, we affirm the court of appeals' decision reversing the judgment of the circuit court.

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

       All statutory references are to the 1995-96 edition unless otherwise noted.

      Wisconsin Statute § 109.07(4)(a) provides that: "[a]n employe whose employer fails to notify timely the employe under sub. (lm) may file a claim with the department."

      Wisconsin Statute § 109.07(4)(b) provides:
      If the [Department] does not recover payment within 180 days after a claim is filed or within 30 days after it notifies the employe of its determination under par. (a), whichever is first, the [Department] shall refer the claim to the department of justice. The department of justice may bring an action in circuit court on behalf of the employe to recover the payment under sub. (3).

       Jeld-Wen also raises these jurisdictional challenges in this appeal. We have concluded that the statute does not apply in the first instance; we therefore decline to address whether the union or the Department fulfilled the statute's jurisdictional requirements.

       WARN uses the term "plant closing" rather than "business closing." A "plant closing" is defined as "the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees." 29 U.S.C. § 2101(a)(2).


text:
    R.W. Docks & Slips, Plaintiff-Appellant-Petitioner, v. State of Wisconsin and Wisconsin Department of Natural Resources, Defendants-Respondents.
    Supreme Court

      No. 99-2904.

      Oral argument April 30, 2001.

    Decided June 28, 2001.

    2001 WI 73
    (Also reported in 628 N.W.2d 781.)

      For the plaintiff-appellant-petitioner there were briefs by Jason W. Whitley and Novitzke, Gust & Sempf, Amery, and oral argument by Jason W. Whitley.

    For the defendants-respondents the cause was argued by JoAnne F. Kloppenburg, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. This case pits a small emergent weedbed along the shores of Lake Superior in Bayfield, Wisconsin, against the developer of a private marina on those same shores. The Wisconsin Department of Natural Resources sided with the weedbed, and denied the developer a dredging permit needed to complete the final phase of the marina development. The case has an ironic twist: the small emergent weed-bed would not have "emerged" at all were it not for the calming effect of a breakwater the developer had built in the early stages of the project. The presence of the emergent weedbed prompted the DNR to block the developer's construction of the last set of boat slips in the marina, 71 out of a total of 272 slips.

¶ 2. So the developer took the DNR to court, alleging a regulatory taking without just compensation. The case was dismissed on summary judgment, and the court of appeals affirmed, concluding that because the developer retained the benefit of all or substantially all of its property — including over 200 boat slips and various recreational facilities associated with the marina onshore — the denial of a permit for the construction of the remaining boat slips was not an unconstitutional taking.

¶ 3. We affirm. As takings law has evolved, there is no compensable categorical taking unless the regulatory action in question deprives a property owner of all economically beneficial use of his property. We do not perform the analysis piecemeal, but, rather, consider the property as a whole in order to determine the extent of the deprivation. Because the denial of the dredging permit did not deny the marina developer all economically beneficial use of its property, there was no categorical regulatory taking.

¶ 4. Further, and again considering the property as a whole, the regulatory action in this case at most affected only the developer's riparian right of reasonable access to the lake, which is subordinate to the public trust doctrine. Therefore, the DNR's action did not so severely impact or interfere with the developer's reasonable investment expectations as to constitute an unconstitutional taking under traditional, ad hoc takings analysis.

i — 1

¶ 5. The relevant facts are undisputed. R.W. Docks, a general partnership in the business of developing marinas, is the riparian owner of 1100 feet of frontage along Lake Superior in Bayfield, Wisconsin. In 1969, Docks began building a marina, called Port Superior, on this lake frontage land. At the outset, Docks sought and obtained permits from the DNR and the Army Corps of Engineers to construct a breakwater and boat harbor in connection with the marina development.

¶ 6. The marina was then built in stages. The initial phases of the project consisted of the breakwater, several docks eventually containing 201 boat slips, a sea wall, a lagoon, a solid pile quay structure placed on the lakebed, a port, racquetball club, tennis court, and supporting infrastructure. Throughout the gradual development of the marina, Docks sought and received the necessary permits from the DNR, including dredging permits pursuant to Wis. Stat. § 30.20.

¶ 7. In 1977, Docks converted the marina into condominiums. The 201 condominium boat slips, each of which included an undivided interest in the common areas of the marina facilities, were developed and sold before Docks obtained the necessary permits to complete construction of the final 71 boat slips at the marina.

¶ 8. In 1983, Docks applied to the DNR for a permit to dredge 20,000 cubic yards of material from the lakebed, a necessary prerequisite to the completion of the remaining 71 boat slips. The DNR, after expressing concern over the environmental impact of the dredging, divided the application in two, the first to remove 5,000 cubic yards, and the second to remove 15,000 cubic yards of lakebed material. The DNR then granted the first dredging permit. In 1986, the DNR denied the second, larger dredging permit, and without the permit, the final 71 boat slips could not be built.

¶ 9. The permit was denied primarily because a small emergent weedbed had developed near the shore within the marina as a result of the sheltering effect of the breakwater that Docks had built. Weedbeds, evidently, are good for many things, including the proliferation of game fish, forage fish and associated macroinvertebrates and zooplankton, and so the DNR acted to protect this environmentally sensitive natural resource.

¶ 10. After exhausting available administrative appeals and judicial review of the DNR's action, Docks sued the DNR in circuit court alleging an unconstitutional taking of its property without just compensation. The Bayfield County Circuit Court, the Honorable Thomas J. Gallagher, granted the DNR's motion for summary judgment, concluding that: (1) Docks did not have a recognizable property interest in the 71 undeveloped boat slips; (2) even if Docks had a recognizable property interest in the 71 undeveloped boat slips, there was no unconstitutional taking because its riparian right to construct structures on the bed of Lake Superior was subject to the public trust doctrine; and (3) there was no unconstitutional taking because Docks retained considerable practical use of the property.

¶ 11. The court of appeals affirmed only the last conclusion of the circuit court, refraining from addressing the alternate arguments. The court of appeals agreed that the denial of the final dredging permit did not constitute a regulatory taking because Docks maintained the benefit and use of all or substantially all of its marina property. Furthermore, the court concluded that Docks assumed the risk inherent in commencing the project without all necessary permits, and therefore any economic loss it suffered as a result of the inability to build the last 71 slips could not be transferred to the State on a regulatory takings theory. We accepted review.

h-i

. ¶ 12. We review a circuit court's decision granting or denying a motion for summary judgment independently, using the same methodology as the circuit court. Wisconsin Dep't of Corrections v. Kliesmet, 211 Wis. 2d 254, 259, 564 N.W.2d 742 (1997); Wis. Stat. § 802.08(2). "[S]ummary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261 (Ct. App. 1994).

¶ 13. The issue in this case is whether the DNR's denial of the final dredging permit constituted a regulatory taking of Docks' property without just compensation. This is also a question of law that we review without deference to the lower courts. Zealy v. City of Waukesha, 201 Wis. 2d 365, 372, 548 N.W.2d 528 (1996). The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that private property shall not "be taken for public use, without just compensation." Article I, Section 13 of the Wisconsin Constitution provides that "[t]he property of no person shall be taken for public use without just compensation therefor." We have stated that:

Takings jurisprudence has developed from two competing principles: on one hand, respect for the property rights of individuals; on the other, recognition that the government retains the ability, in furtherance of the interests of all citizens, to regulate an owner's potential uses of land. Thus, in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), the United States Supreme Court held municipal zoning to be a permissible exercise of the police power, while in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 159-60, 67 L.Ed. 322 (1922), the Court held that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Such takings are described as "constructive" or "regulatory" takings.

Zealy, 201 Wis. 2d at 373.

¶ 14. "A 'taking' need not arise from an actual physical occupation of land by the government." Eberle v. Dane County Bd. of Adjust., 227 Wis. 2d 609, 621, 595 N.W.2d 739 (1999). If a regulatory restriction or action of the government deprives a property owner of all economically beneficial use of his property, there has been a categorical regulatory taking subject to compensation. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); Zealy, 201 Wis. 2d at 374-75.

¶ 15. In determining whether a regulatory restriction "goes too far" for purposes of the Fifth Amendment, the United States Supreme Court has generally "eschewed any 'set formula' for determining how far is too far, preferring to ’engag[e] in. . .essentially ad hoc, factual inquiries." Lucas, 505 U.S. at 1015 (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)); Zealy, 201 Wis. 2d at 373. However, the Supreme Court has recognized "at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint." Lucas, 505 U.S. at 1015. The first includes regulatory actions that bring about some form of physical "invasion" of private property. Id. The second includes regulatory actions that deny "all economically beneficial or productive use of land." Id. We have in Wisconsin interpreted this latter category to include regulatory actions that "deny the landowner all or substantially all practical uses of a property." Eberle, 227 Wis. 2d 622; Zealy, 201 Wis. 2d at 374.

¶ 16. The DNR's denial of the dredge permit in this case did not bring about a physical invasion of private property. Nor did it deny Docks all economically beneficial or productive use of its property, or substantially all practical use of its property, inasmuch as it retained the economic benefit and use of the 201 boat slips and related recreational facilities at the marina. Accordingly, there has been no categorical regulatory taking under Lucas and Zealy.

¶ 17. We are left, then, with the ad hoc factual, traditional takings inquiry of Penn Central and Zealy. This involves an analysis of the nature and character of the governmental action, the severity of the economic impact of the regulation on the property owner, and the degree to which the regulation has interfered with the property owner's distinct investment-backed expectations in the property. Zealy, 201 Wis. 2d at 374 (citing Penn Cent., 438 U.S. at 124).

¶ 18. But first there is a threshold question, and that is the nature and extent of the private property interest at stake here. This case involves riparian rights, which are subject to and limited by the public trust doctrine. The State argues that the bed and waters of Lake Superior belong to the public, not Docks, and so no taking of private property occurred. Indeed, the Supreme Court has stated that:

[t]he hallmark of a protected property interest is the right to exclude others. That is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). That is why the right that we all possess to use the public lands is not the "property" right of anyone — hence the sardonic maxim, explaining what economists call the "tragedy of the commons," res publica, res nullius.

Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999). If Docks had no private property right to place boat slips on the lakebed at the marina, it cannot have suffered an unconstitutional taking.

¶ 19. The public trust doctrine originated in the Northwest Ordinance of 1787 and the Wisconsin Constitution, Article IX, Section l. See Gillen v. City of Neenah, 219 Wis. 2d 806, 820, 580 N.W.2d 628 (1998). The state holds title to the beds of lakes, ponds, and rivers as follows:

"The title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line of ordinary high-water mark, within the boundaries of the state, became vested in [the state] at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers, to the same extent that the public are entitled to enjoy tidal waters at the common law."

State v. Trudeau, 139 Wis. 2d 91, 101, 408 N.W.2d 337 (1987) (quoting Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 N.W. 855 (1901)). This includes the beds of the Great Lakes as well as lesser inland waters. Id. Public ownership of the bed of a lake applies whether the water is deep or shallow, and extends to areas covered with aquatic vegetation within the ordinary high water mark of the body of water in question. Id. at 103-04. Although the public trust doctrine originally existed to protect commercial navigation, it has been expansively interpreted to safeguard the public's use of navigable waters for purely recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve scenic beauty. See State v. Bleck, 114 Wis. 2d 454, 457, 338 N.W.2d 492 (1983); see also Gillen, 219 Wis. 2d at 820.

¶ 20. The legislature administers the trust for the protection of the public's rights, and it may use the power of regulation to effectuate the intent of the trust. Id. at 498. In this regard, as applicable here, the legislature has declared it to be unlawful to place a structure on the bed of a navigable waterway unless a permit has been granted by the DNR, or unless the structure is otherwise authorized by statute. See Wis. Stats. §§ 30.12, 30.13; Cassidy v. DNR, 132 Wis. 2d 153, 158, 390 N.W.2d 81 (Ct. App. 1986). Further, the legislature has prohibited the removal of material from the bed of a navigable waterway without a permit. Wis. Stat. § 30.20.

¶ 21. However, subj ect to the requirements of the public trust doctrine, "Wisconsin has.. .recognized the existence of certain common law rights that are incidents of riparian ownership of property adjacent to a body of water." Bleck, 114 Wis. 2d at 466. These include:

[t]he right to reasonable use of the waters for domestic, agricultural and recreational purposes; the right to use the shoreline and have access to the waters; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, now conditioned by statute, to construct a pier or similar structure in aid of navigation.

Cassidy v. DNR, 132 Wis. 2d at 159 (footnotes omitted).

¶ 22. The rights of riparian owners, however, are qualified, subordinate, and subject to the paramount interest of the state and the paramount rights of the public in navigable waters. Bleck, 114 Wis. 2d at 467-68. The common law only requires that riparian owners be allowed reasonable access and use. Sterlingworth Condo. Ass'n, Inc. v. DNR, 205 Wis. 2d 710, 731, 556 N.W.2d 791 (Ct. App. 1996).

[E]very.. .right which a riparian owner acquires, as such, to the waters ... by his land, is restricted always to that which is a . . . reasonable use, and these terms are to be measured and determined by the extent and capacity of the [lake], the uses to which it has been put, and the rights that other riparian owners on the same [lake] also have.

Id. (citing Apfelbacher v. State, 167 Wis. 233, 239, 167 N.W. 244, 245 (1918); State v. Zawistowski, 95 Wis. 2d 250, 261-62, 290 N.W.2d 303, 309 (1980)).

¶ 23. The public trust doctrine as an encumbrance on riparian rights is established "by judicial authority so long acquiesced in as to become a rule of property." Franzini v. Layland, 120 Wis. 72, 81, 97 N.W. 499 (1903). It is part of the organic law of the state, and is to be broadly and beneficially construed. Diana Shooting Club v. Husting, 156 Wis. 261, 271-72, 145 N.W. 816 (1914).

¶ 24. The DNR's denial of the dredging permit affected only Docks' ability to construct the final 71 boat slips on the bed and in the waters of Lake Superior, and, as such, implicated only Docks' riparian rights, which are subject to the public trust doctrine. Assuming that riparian rights, subordinate as they are to the rights of the public, are included in the "bundle of rights" recognized as private property for purposes of Fifth Amendment takings analysis, Docks has failed to demonstrate a compensable regulatory taking under Penn Central and Zealy.

¶ 25. In Zealy, we noted that the United States Supreme Court has not endorsed an analysis that subdivides a contiguous property for purposes of determining whether a compensable taking has occurred. Zealy, 201 Wis. 2d at 375-76.

[Rjather, the Court has consistently held that a landowner's property in such a case should be considered as a whole.
" 'Taking'" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole....
Penn Central, 438 U.S. at 130-31, 98 S.Ct. at 2662-63. Similarly, in Keystone [Bituminous Coal Ass'n v. DeBenedictis], 480 U.S. at 498, 107 S.Ct. at 1248-49, the Court noted practical arguments against allowing the segmentation of the property at issue:
"Many zoning ordinances place limits on the property owner's right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area. . . . [0]ne could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes."

Zealy, 201 Wis. 2d at 376.

¶ 26. The Supreme Court has reaffirmed its opposition to subdividing property for purposes of takings analysis:

[W]e rejected this analysis years ago in Penn Central. . .where we held that a claimant's parcel of property could not first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable. To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question.

Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 642-44 (1993).

¶ 27. Accordingly, we evaluate the character of the DNR's action, its economic impact and the degree to which it interfered with Docks' investment-backed expectations in light of the marina as a whole rather than the parcel that was to have contained the 71 boat slips. And we do so recognizing that at most, only riparian rights of reasonable access and use, subject to the public trust doctrine, are implicated here.

¶ 28. The DNR acted primarily to protect an emergent weedbed on behalf of the public, and secondarily, to prevent interference with the rights of neighboring riparian owners. Reasonable minds can differ about whether governmental protection of weed-beds is of such a character as to outweigh private property interests. But the state, not Docks, holds title to the lakebed, and therefore, to the extent that a private property interest is implicated here, it is riparian only and therefore qualified in nature, encumbered by the public trust doctrine. We have "jealously guarded the navigable waters of this state and the rights of the public to use and enjoy them." Delta Fish and Fur Farms v. Pierce, 203 Wis. 519, 523, 234 N.W. 881 (1931). The character of the governmental action in this case, therefore, weighs against a finding that Docks has suffered a compensable regulatory taking.

¶ 29. Similarly, our evaluation of the severity of the economic impact of the DNR's action, and the extent to which it interfered with Docks' investment-backed expectations, is strongly influenced by the fact that the development of this private marina on the bed and waters of Lake Superior was encumbered by the public trust doctrine and heavily regulated from the get-go. A riparian owner may apply to the DNR for a permit to remove material from or erect a structure on the bed of a navigable waterway in order to facilitate reasonable access and use. But the riparian owner does not have a right to the issuance of a permit if it is detrimental to the public interest. See Wis. Stat. §§ 30.12, 30.13 and 30.20.

¶ 30. Docks alleges that the revenue from the sale of the 201 existing boat slips was insufficient to cover the cost of developing the marina and that it has to date lost in excess of $1 million. It claims that the final 71 boat slips would have a combined value of approximately $1.5 million, enough to cover its losses and make a small profit. But the fact that the marina development has thus far yielded a loss does not make out a takings case, and Docks never possessed an unfettered "right" to a particular number of boat slips in the first place. Under the circumstances of this case, the DNR's action cannot be said to have "gone too far" to cause the sort of negative economic impact or substantial interference with investment expectations as to amount to a regulatory taking.

¶ 31. In any event, the DNR's denial of the final dredging permit has not interfered with Docks' present economic use of its property, considered as a whole. It has a 201-slip marina, and associated recreational facilities, and may have other means of recouping its losses. It is true that Docks' plans for a larger marina have been frustrated, but those plans were encumbered by the public trust doctrine and contingent upon the periodic issuance of DNR permits from the beginning. See Concrete Pipe, 508 U.S. at 645 (rejecting takings claim where claimant "had long been subject to federal regulation, and '[t]hose who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end'").

¶ 32. Accordingly, we conclude that the DNR's denial of the final dredging permit did not deny Docks all economically beneficial use of its property, or substantially all practical use of its property, and as such, did not constitute a categorical regulatory taking. In addition, because the DNR's action affected only riparian rights, subordinate to the public trust doctrine, and affected only a small portion of the marina development as a whole, it cannot be said to have resulted in the sort of severe economic impact or interference with distinct investment-backed expectations as to constitute a regulatory taking under traditional, ad hoc takings analysis.

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

       Wisconsin Const, art. IX, § 1 states:
      Jurisdiction on rivers and lakes; navigable waters. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well as to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.

      The high water mark is: "[T]he point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic." State v. Trudeau, 139 Wis. 2d 91, 102, 408 N.W.2d 337 (1987) (citing Lawrence v. American W.P. Co., 144 Wis. 556, 562, 128 N.W. 440 (1911)).

      A "structure" for these purposes has been defined as "something constructed or built. . .something made up of more or less interdependent elements or parts." State v. Bleck, 114 Wis. 2d 454, 463, 338 N.W.2d 492 (1983).

       Docks claimed at oral argument that United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913) supported its position that it had a property right for Fifth Amendment purposes in the 71 additional boat slips. The riparian property owner in Chandler-Dunbar claimed a right to construct in the river and upon its land such structures as were necessary to control and use the current of the river for commercial purposes, provided only that such structures not impede or hinder navigation. As the Court noted, under state law, the owner of riparian land carried title all the way to the middle thread of the riverbed. However, the Court found this title to be qualified at best, subordinate to the public right of navigation. The Court stated that the riparian owner had the "right of access to deep water, and when not forbidden by public law may construct for this purpose, wharves, docks, and piers in the shallow water of the shore. But every such structure in the water of a navigable river is subordinate to the right of navigation, and subject to the obligation to suffer the consequences of the improvement of navigation, and must be removed if Congress, in the assertion of its power over navigation, shall determine that their continuance is detrimental to the public interest in the navigation of the river" Id. at 70. Thus, Docks' reliance on this case is misplaced. Chandler-Dunbar actually stands for the proposition riparian rights are subject to the public's superior rights.

       Docks invites us to follow the lead of the United States Court of Appeals for the Federal Circuit in Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1181 (Fed. Cir. 1994), and adopt "a flexible approach, designed to account for factual nuances" in determining whether to consider the property as a whole or only that portion affected by the regulatory action in question. We declined to do so in Zealy v. City of Waukesha, 201 Wis. 2d 365, 378, 548 N.W.2d 528 (1996), and also decline to do so here, where the private property right asserted is so limited.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Thomas J. Fink, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Thomas J. Fink, Respondent.
    Supreme Court

      No. 00-3082-D.

      Filed June 28, 2001.

    2001 WI 72
    (Also reported in 628 N.W.2d 362.)
    ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Thomas J. Fink receive a public reprimand for professional misconduct and that he pay the costs of this proceeding.

¶ 2. The misconduct consists of failing to provide a client with legal materials which the client requested, failing to keep the client reasonably informed of the status of his case, failing to promptly reply to reasonable requests from the client for information, failing to take steps reasonably practical to protect the client's interest, and failing to cooperate with the investigation of the Board of Attorneys Professional Responsibility (Board) including the misrepresentation of facts during the process.

¶ 3. We determine that the seriousness of Attorney Fink's professional misconduct warrants a public reprimand.

¶ 4. Attorney Fink was admitted to the practice of law in Wisconsin in 1963. In 1998 he was appointed by the state public defender to represent a client at a probation revocation proceeding. In the course of this representation, Attorney Fink was supplied with documents relating to the state's request for revocation. On four separate occasions the client requested that Attorney Fink provide him with a copy of these documents and on each occasion he failed to do so although he did later provide the client with the materials.

¶ 5. After Attorney Fink's legal representation of the client had terminated, the client requested copies of all materials relating to the case. Attorney Fink received the request but did not respond to it.

¶ 6. The client subsequently filed a notice of grievance with the Board. Attorney Fink was twice directed to file a written response but did not reply. When the Board's district investigative committee eventually questioned Attorney Fink, he indicated that he viewed the documents requested by his client as being unimportant and that when his representation of the client ended he believed it was not his obligation to respond to the client's request for additional documents. Attorney Fink also misrepresented to the committee the date on which he provided the client with a copy of the appeal of the adverse ruling in the revocation proceeding and whether he had placed a block on collect calls on his telephone to keep his client from contacting him.

¶ 7. On November 14, 2000, the Board commenced this disciplinary proceeding with the filing of a complaint and an order to answer. The complaint alleged that Attorney Fink engaged in five counts of professional misconduct.

¶ 8. First, the Board alleged that Attorney Fink violated SCR 20:l.4(a) by failing to provide his client with a copy of the revocation documents, by failing to keep the client reasonably informed of the status of the probation revocation proceeding, and by failing to promptly reply to reasonable requests by the client for information.

¶ 9. Second, the Board alleged that Attorney Fink violated former SCR 21.03(4) and former SCR 22.07(2) by failing to cooperate with the Board's investigation and misrepresenting facts in the course of it.

¶ 10. Third, the Board alleged that Attorney Fink violated SCR 20:1.16(d) by failing to provide his client with a copy of the file after the probation revocation proceeding was completed and in general failing to take reasonable practical steps to protect the client's interests.

¶ 11. Fourth, the Board alleged that Attorney Fink violated former SCR 21.03(4) and former SCR 22.07(2) by failing to respond to the Board's two letters of inquiry.

¶ 12. Fifth, the Board alleged that Attorney Fink violated former SCR 21.03(4) and former SCR 22.07(2) by misrepresenting to the committee that he had not placed a block on collect calls to his telephone when in fact he had done so.

¶ 13. Attorney Fink admitted service of the Board's complaint and subsequently filed an answer. John E. Shannon, Jr., was appointed by this court as referee.

¶ 14. Attorney Fink and the Office of Lawyer Regulation, as the successor to the Board, subsequently entered into a stipulation in which Attorney Fink agreed that he had committed the five counts and that the public reprimand sought by the Board, along with the imposition of costs, was an appropriate level of discipline. The referee then issued findings of fact, conclusions of law, and a recommendation, adopting the stipulation and the Board's complaint.

¶ 15. We adopt the referee's findings of fact and conclusions of law and determine, in accordance with the referee's recommendation and the stipulation of the parties, that the appropriate discipline for Attorney Fink's professional misconduct is a public reprimand. His actions with respect to his client and the Board's investigation constituted substantial professional misconduct warranting a public reprimand.

¶ 16. It Is Ordered that Attorney Thomas J. Fink be publicly reprimanded for his professional misconduct.

¶ 17. It Is Further Ordered that within 60 days of the date of this order Attorney Thomas J. Fink pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $1057.17. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Thomas J. Fink to practice law in Wisconsin shall be suspended until further order of the court.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       Former SCR 21.03(4) provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.

       Former SCR 22.07(2) provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.