source: Caselaw Access Project

author: CURLEY, J. FINE, J. SCHUDSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Donald D. Marshall, Defendant-Appellant.

    Court of Appeals

      No. 01-1403-CR.

      Oral argument January 9, 2002.

    Decided February 5, 2002.

    2002 WI App 73
    (Also reported in 642 N.W.2d 571.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard L. Zaffiro of Wau-watosa, with oral argument by Richard L. Zaffiro.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general, with oral argument by Kathleen M. Ptacek.

    Before Fine, Schudson and Curley, JJ.

       Petition to review filed.

   CURLEY, J.

¶ 1. Donald D. Marshall appeals from a judgment entered after he pled guilty to one count of operating a motor vehicle while intoxicated (OWI) (fifth offense), contrary to Wis. Stat. § 346.63(l)(a) (1999-2000). Marshall also appeals from the trial court's order denying his postconviction motion. Marshall claims that: (1) his trial counsel was ineffective for failing to move to suppress the blood alcohol evidence, which he alleges was obtained in violation of Wis. Stat. § 343.305(9)(a); and (2) two "new factors" establish grounds for modification of his sentence. We disagree and affirm.

I. Background.

¶ 2. On February 18, 2000, City of Cudahy Police Officer Mark Bozeil responded to a complaint of a "potential drunk driver" operating a four-door Honda vehicle. Officer Bozeil located the Honda and immediately followed the vehicle. After approximately two blocks, the driver stopped at a stop sign. After stopping for an unusually long period of time, the driver of the Honda started to pull into the intersection but quickly stopped when his vehicle was almost struck by a westbound vehicle which did not have a stop sign. The officer activated his emergency lights and the driver of the Honda, Marshall, pulled to the curb.

¶ 3. Upon approaching Marshall's vehicle and leaning his head down to the open car window, the officer detected a strong odor of alcohol. He also observed that Marshall's speech was slurred and his eyes were red and glassy. Marshall soon admitted that he had consumed about "three beers or so." The officer attempted to have Marshall perform field sobriety tests, but Marshall was unable to stand without assistance. After failing a preliminary breathalyzer, Marshall was placed under arrest.

¶ 4. Marshall was then transported to St. Luke's Hospital where he was read the "Informing the Accused" form. Marshall refused to submit to a voluntary blood draw, stating that the police would have to "restrain him." Marshall stated in an affidavit that subsequent to his refusal, that a captain or lieutenant of the Cudahy Police Department came into the room where he was seated, showed him a big bag of colored straps, and told him that he was either going to submit to the blood draw or he and other police officers were going to physically strap him down and take his blood regardless of his wishes. Marshall then consented to the. blood draw and to an intoximeter test of his breath. These tests revealed a blood alcohol content of .224% by weight of alcohol in Marshall's blood, and .17 grams of alcohol in 210 liters of Marshall's breath, both well above the legal limit. On April 24, 2000, Marshall, without filing any motions to suppress the evidence, entered a guilty plea to operating a motor vehicle while intoxicated (fifth offense).

II. Analysis.

A. Marshall's trial counsel was not ineffective.

¶ 5. The familiar two-pronged test for ineffective assistance of counsel claims requires defendants to prove: (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. See id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

¶ 6. Ineffective assistance of counsel claims present mixed questions of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). A trial court's factual findings must be upheld unless they are clearly erroneous. State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defendant are questions of law, which we review de novo. Pitsch, 124 Wis. 2d at 634. The defendant has the burden of persuasion on both prongs of the test. See Strickland, 466 U.S. at 687.

¶ 7. Marshall asserts that Wis. Stat. § 343.305(9)(a) provides the exclusive option for law enforcement when faced with an arrestee who refuses to submit samples of his or her breath, blood or urine for testing. Thus, Marshall argues that his trial counsel was ineffective for failing to move to suppress the blood alcohol evidence, which he alleges was taken in violation of Wis. Stat. § 343.305(9)(a), because law enforcement has no right, under the implied consent law, either to forcibly withdraw blood without an arrestee's consent or to obtain an arrestee's consent by threatening to forcibly withdraw blood.

¶ 8. Wisconsin Stat. § 343.305(9)(a) states, in relevant part: "If a person refuses to take a test under sub. (3) (a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege." In concluding that this is an arresting officer's only recourse upon an arrestee's refusal to submit to chemical testing, Marshall relies on language from County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), in which this court stated:

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. A person may revoke consent, however, by simply refusing to take the test. Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice). The legislature recognized that drivers being asked to take a chemical test should be informed of this choice and therefore requires law enforcement officers to provide drivers with certain information.

Id. at 277-78 (citations omitted).

¶ 9. While Marshall correctly concludes that Wis. Stat. § 343.305 does not authorize a forcible withdrawal of blood, see State v. Krause, 168 Wis. 2d 578, 585-86, 484 N.W.2d 347 (Ct. App. 1992), he incorrectly assumes that the implied consent law provides the exclusive alternative for law enforcement when faced with a suspect who refuses chemical testing. As noted in Krause:

[I]n sec. 7, ch. 193, Laws of 1977, the legislature repealed and recreated the implied consent law, eliminating the language in sec. 343.305(2)(b), Stats. (1975-76), which stated, "If the person refuses the request of a traffic officer to submit to a chemical test, no test shall be given . ..." By this statutory change, the legislature removed from Wisconsin drivers absolute control of whether a chemical test will be administered. Whether or not such evidence can be obtained should not depend on the arrestee's cooperation with law enforcement officers. To adopt that reasoning would result in a "premium given to the more obstreperous drunk driver who is more successful in forcibly resisting the withdrawal of a blood sample."

Id. at 586 n.3.

¶ 10. Marshall's specific challenge to the implied consent statute has been addressed and rejected in State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73. In Gibson, the court was presented with the same issue raised by Marshall, i.e., "whether the implied consent law provides the exclusive remedy upon a refusal to submit to evidentiary testing so that law enforcement cannot obtain evidence by other legal means." Id. at ¶ 6. Like Marshall, Gibson was arrested for OWI and initially refused to take the requested blood test. Id. at ¶ 3. After the arresting police officer indicated that there was no other way Gibson was going to be able to get out of the situation and after informing him that the penalties would be increased if he refused the test, Gibson submitted to the blood test, which showed a .248 blood alcohol concentration. Id. In upholding the trial court's admission of the results of the blood test into evidence, this court stated, "the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver's intoxication." Id. at ¶ 12.

¶ 11. Further, in Gibson, this court clarified that Quelle does not support the conclusion that Wis. Stat. § 343.305(9)(a) is the only remedy upon refusal:

[R]eliance on Quelle is misplaced for two reasons. First, Quelle did not address the issue at hand; it was a "subjective confusion" case. The court therefore did not have an opportunity to evaluate its observation in light of the arguments Gibson raises. It did not consider whether a suspect's refusal must be honored in all instances. Thus, when placed in proper context, it appears that the Quelle court merely concluded that an OWI suspect has the right not to voluntarily take a test, by "revoking" consent. This construction comports with the cases that consistently hold that, under appropriate circumstances, a suspect's blood may be withdrawn regardless of consent.
Second, and most important, under Gibson's interpretation!;,] this passage from Quelle directly contradicts our supreme court's repeated holding that a driver in this state has no right to refuse to take a chemical test. The consent is implied as a condition of the privilege of operating a motor vehicle upon state highways. By implying consent, the statute removes the right of a driver to lawfully refuse a chemical test.... Thus, the language in Quelle notwithstanding, [a suspect] does not have a right to refuse to submit to evidentiary testing.
While at first blush it may arguably appear that the implied consent statute supplies the exclusive remedy for its violation, it does not follow that it precludes law enforcement from pursuing other constitutional avenues for collecting evidence of a traffic violation.

Gibson, 2001 WI App 71 at ¶¶ 8-10 (emphasis added) (citations omitted).

¶ 12. Thus, because a forcible warrantless blood draw does not violate the Fourth Amendment if the conditions specified in Bohling are satisfied, see State v. Wodenjak, 2001 WI App 216, ¶ 10, 247 Wis. 2d 554, 634 N.W.2d 867, applying the rationale of Gibson, we are satisfied that even if an arrestee refuses to submit to a voluntary blood test, an officer may acknowledge the refusal, complete the "Notice of Intent to Revoke Operating Privilege" form as provided by Wis. Stat. § 343.305(9)(a), and then proceed with an involuntary blood test as the basis for the operating a motor vehicle with a prohibited blood alcohol concentration (PAC) charge and in support of the operating a motor vehicle while intoxicated charge.

¶ 13. However, the following question naturally arises: What is the significance of having the right to refuse voluntary chemical testing, when law enforcement may force testing regardless of consent? See Quelle, 198 Wis. 2d at 277-78; see also State v. Piddington, 2001 WI 24, ¶ 18, 241 Wis. 2d 754, 623 N.W.2d 528 (dealing with the manner in which law enforcement informs apprehended drivers about their rights and responsibilities under the implied consent law). The answer is that a driver who refuses to submit to chemical testing faces certain risks and consequences that are entirely independent from the OWI/PAC offense. As illustrated in State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987):

[T]wo separate substantive offenses are potentially operative in all prosecutions involving intoxicated use of a vehicle. The first... is refusing to submit to a chemical test under sec. 343.305(2), Stats. If a driver refuses to take a test he or she faces automatic license revocation. The second substantive offense may involve operating while intoxicated (OWI), sec. 346.63[(l)(a), operating with a prohibited alcohol concentration, sec. 346.63(l)(b),] homicide by intoxicated use of a vehicle, sec. 940.09, or injury by intoxicated use of a vehicle, sec. 940.25 ....
The refusal procedures.. . are separate and distinct from prosecution for the offense involving intoxicated use of a vehicle.
This ... demonstrates the separateness of the civil refusal proceeding set forth in sec. 343.305 and the underlying criminal offenses involving operating a motor vehicle while intoxicated set forth in secs. 346.63, 940.09 and 940.25.

Id. at 47-49. Therefore, Gibson and Zielke stand for the proposition that while the implied consent statute provides an incentive for voluntary chemical testing, i.e., not facing civil refusal procedures and automatic revocation, voluntary testing is not the exclusive means that blood, urine or breath samples may be constitutionally obtained.

¶ 14. Additionally, the supreme court's concern in Piddington over the comprehensibility of the implied consent warnings is not rendered irrelevant by this conclusion. Rather, "[t]he opportunity to introduce the fact of refusal presupposes that a defendant has been advised of his or her rights as required by sec. 343.305(3)(a), Stats." Zielke, 137 Wis. 2d at 50. Thus, reasonable convey- anee of the implied consent warnings is a prerequisite to revocation based on refusal or use of the fact of refusal in the subsequent prosecution for OWI or PAC. See id.

¶ 15. Marshall claims that because the police explicitly threatened to physically strap him down, his situation is significantly distinguishable for Fourth Amendment purposes from the situation in Gibson, where the arresting officer only implicitly threatened the use of force. We disagree. Because law enforcement personnel may use reasonable force to withdraw blood from a noncompliant suspect, see Wodenjak, 2001 WI App 216 at ¶ 7, they may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal.

¶ 16. Therefore, Marshall's contention must ultimately rest on one of the following: (1) Gibson is unconstitutional; or (2) the Bohling requirements were not met. First, because we "may not overrule, modify or withdraw language from a previously published decision of the court of appeals," see Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), we cannot alter the constitutional standard established in Gibson. See State v. Thorstad, 2000 WI App 199, ¶ 11, 238 Wis. 2d 666, 618 N.W.2d 240. While adhering to Gibson, we also take this opportunity to point out a possible inconsistency. See Cook, 208 Wis. 2d at 190 ("[T]he court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided.").

¶ 17. In Quelle, this court stated, "a driver has a 'right' not to take the chemical test." Quelle, 198 Wis. 2d at 277. This court did not state, as concluded by the Gibson court, "a driver has only the 'right' not to take a voluntary test." Id. We note that Gibson's addition of the word "voluntary" may seem to minimize the importance of the "right" outlined in Quelle. It appears contradictory to state, on the one hand, that a driver has a right not to take a chemical test, and then, less than six years later, state that a driver must take a chemical test.

¶ 18. Thus, because "we are presented with a published decision of our court that arguably overrules, modifies or withdraws language from a prior published decision of this court, we must first attempt to harmonize the two cases." Garfoot v. Fireman's Fund, Ins. Co., 228 Wis. 2d 707, 723, 599 N.W.2d 411 (Ct. App. 1994). "That is, if there is a reasonable reading of the two cases that avoids the second case overruling, modifying or withdrawing language from the first, that is the reading we must adopt." Id. In an attempt to harmonize Gibson and Quelle, we conclude that, based on the long line of cases holding that a suspect's blood may be drawn regardless of consent, see, e.g., Wodenjak, 2001 WI App 216 at ¶ 10, the Gibson court simply clarified, rather than modified, the right of refusal outlined in Quelle-, i.e., that a suspect's right of refusal is limited to the right to refuse to submit to a voluntary blood draw.

¶ 19. Second, because Marshall fails to assert that the Bohling requirements were not met, we decline to address the issue. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (stating that the court of appeals may decline to review an issue inadequately briefed). Accordingly, because evidence of Marshall's blood alcohol concentration was properly obtained under Gibson, we conclude that Marshall's trial counsel was not ineffective for failing to object to its admission into evidence.

B. Marshall is not entitled, to sentence modification based on "new factors."

¶ 20. Marshall claims that two "new factors" establish grounds for modification of his sentence: (1) the restraining order case against him was dismissed for lack of proof, not because of criminal charges being issued as assumed by the trial court; and (2) the trial court relied on sentencing guidelines which predated the truth-in-sentencing law, even though he was sentenced under the truth-in-sentencing law. Marshall concludes that these "new factors" are significant and that his sentence would have been less severe if these errors had not occurred. We disagree.

¶ 21. "Whether a set of facts is a 'new factor' is a question of law which we review without deference to the trial court." State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). "Whether a new factor warrants a modification of sentence rests within the trial court's discretion." Id.

¶ 22. "[T]he phrase 'new factor' refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). However, the case law since Rosado has limited the "new factor" standard to situations where the new factor frustrates the purpose of the original sentencing. Michels, 150 Wis. 2d at 97. Thus, "[tjhere must be some connection between the factor and the sentencing - something which strikes at the very purpose for the sentence selected by the trial court." Id. at 99.

¶ 23. Here, no such connection exists. With regard to the restraining order, in denying Marshall's motion for sentence modification, the trial court stated:

The defendant also seeks sentence modification on new factor grounds. First, he contends that the presentence report erroneously indicated that his ex-girlfriend failed to obtain a permanent restraining order against him because criminal charges were issued when in fact the permanent restraining order was dismissed for failure of proof. Even so, the court did not rely upon this information in determining sentence, and therefore, a modification of the sentence is not warranted on these grounds.

Marshall provides this court with no evidence to the contrary. Therefore, because Marshall has failed to prove that the trial court relied on the inaccurate information in the presentence investigation report, we reject his first claim. See State v. Anderson, 222 Wis. 2d 403, 408, 588 N.W.2d 75 (Ct. App. 1998) ("A defendant who requests resentencing must show that specific information in the [presentence investigation report] was inaccurate and that the court actually relied upon the inaccurate information in sentencing.").

¶ 24. Marshall's second argument raises significant constitutional arguments that he fails to adequately develop. Thus, we decline to address his broad assertion that the trial court improperly relied on pre-truth-in-sentencing guidelines. See Cemetery Servs., Inc. v. Department of Regulation and Licensing, 221 Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998) ("Constitutional claims are very complicated from an analytic perspective, both to brief and to decide. A one or two paragraph statement that raises the specter of such claims is insufficient to constitute a valid appeal of these constitutional issues to this court. For us to address undeveloped constitutional claims, we would have to analyze them, develop them, and then decide them. We cannot serve as both advocate and court. For this reason, we generally choose not to decide issues that are not adequately developed by the parties in their briefs.").

¶ 25. Based upon the foregoing reasons, the judgment and order are affirmed.

By the Court. — Judgment and order affirmed.

FINE, J.

¶ 26. (concurring). I join in the Majority Opinion, and offer the following brief comments.

¶ 27. The legislature's command that a person suspected of drunk driving must take the blood-alcohol test sought by law enforcement would be hollow unless there was a mechanism to administer the test on someone who did not cooperate. Absent such a mechanism, drunk drivers could, by the mere expedient of accepting the statutory consequences of a "refusal," avoid a test that provides irrefutable proof of whether they are drunk. To permit drivers to so easily skirt the requirement that they submit to a test chosen by law enforcement would, in my view, to use the word Judge Schudson uses in his concurrence, be an "absurd" reading of the statutes designed to rid our highways of drunk drivers. Thus, I believe that the Majority reads correctly our decision in State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, and appropriately applies it to this case.

SCHUDSON, J.

¶ 28. (concurring). We have decided this case as we must, see Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), and Judge Curley's thoughtful opinion explains why. Her analysis of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277, 542 N.W.2d 196 (Ct. App. 1995), and State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73, is particularly important, see majority at ¶¶ 17-18, and helps to explain why the instant appeal calls out for further review.

¶ 29. I write separately to suggest the supreme court's consideration of two propositions: (1) that, until Gibson, our case law established that Marshall's statutory argument was correct; and (2) that, under pre-Gibson principles, and as a matter of sound public policy and prudent police practice, Gibson (and, perforce, our decision in the instant case) should be overruled.

¶ 30. "Application of the implied consent statute to an undisputed set of facts, like any statutory construction, is a question of law," subject to de novo review. State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999). Until Gibson, Wisconsin case law had not rejected the statutory theory Marshall presents: that under Wisconsin's implied consent law, once an arrestee refuses to submit to a blood test, police must immediately respond with the statutorily prescribed revocation procedure, and must not threaten or compel a blood test.

¶ 31. Wisconsin Stat. § 343.305(2) (1999-2000), a portion of Wisconsin's implied consent law, provides, in part:

Any person who .. . operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol... when requested to do so by a law enforcement officer.

Moreover, blood may be drawn involuntarily, and without a warrant, from a person lawfully arrested for a drunk-driving related offense. See State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993).

¶ 32. The warnings provided under the implied consent law include the following:

This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended. If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties. The test results or the fact that you refused testing can be used against you in court.

Wis. Stat. § 343.305(4) (emphasis added). Further, Wis. Stat. § 343.305(9)(a) provides, in relevant part:

If a person refuses to take a test under sub. (3) (a) [authorizing a law enforcement officer to "request the person to provide one or more samples of his or her breath, blood or urine"], the law enforcement officer shall immediately take possession of the person's license and prepare a notice to revoke .. . the person's operating privilege.

(Emphases added.)

¶ 33. Thus, in Wis. Stat. § 343.305(4) and Wis. Stat. § 343.305(9)(a), respectively, the legislature specified that if a person refuses to take a test, his or her license "will be revoked" and the officer, upon the refusal, "shall immediately" take the actions to bring about the revocation.

¶ 34. Neither of these statutes, nor any other, provides a police officer the option to ignore or delay these dictates. Neither statute, nor any other, provides a police officer the option to threaten an arrestee that he or she would be strapped down and blood forcibly drawn. Our supreme court has spoken clearly: "Once there has been a proper explanation and there has been a refusal, ... a refusal has occurred under the statute and the accused is subject to the consequences of a mandatory suspension." Reitter, 227 Wis. 2d at 237 n.18 (emphasis added).

¶ 35. Although, as matter of law, a driver arrested for drunk driving has "no 'right' to refuse a chemical test," id. at 225, the driver still may refuse to take the test as long as he or she is prepared to suffer "the consequences of a mandatory suspension." Id. at 237 n.18. As this court declared, "a driver has a 'right' not to take the chemical test (although there are certain risks and consequences inherent in this choice)." Quelle, 198 Wis. 2d at 277 (emphasis added).

¶ 36. Moreover, as we also declared, "the warnings provided drivers under the implied consent law are analogous to those employed in Miranda-type cases." Id. at 276 (emphasis added) (footnote omitted). And, to appreciate the significance of that declaration, we must understand why the warnings are "analogous," not equivalent, and how their analogous function precludes a post-refused forcible blood test.

¶ 37. "Officers who administer a test under the implied consent statute are not required to advise defendants about Miranda rights .. . (.Miranda rules do not apply because request to submit to a chemical test does not implicate testimonial evidence)." Reitter, 227 Wis. 2d at 225 (citation omitted). Further, the implied consent law confers statutory rights, not constitutional ones, see Quelle, 198 Wis. 2d at 276 n.1. Not surprisingly therefore, our supreme court "has been reluctant 'to devise a "Miranda-like" card under the implied consent statute." Id. at 230 (citation omitted).

¶ 38. Thus, while implied consent warnings are not constitutionally equivalent to Miranda warnings, they are "analogous," see Quelle, 198 Wis. 2d at 276 (emphasis added), for the purpose of governing the law enforcement response to an arrestee's refusal. When a person, upon receiving the Miranda warnings, invokes the right to remain silent or the right to have counsel present, all questioning must cease, and any police effort to persuade or compel the arrestee to relinquish the invoked right is improper. See Miranda v. Arizona, 384 U.S. 436 (1966). Analogously, when an arrestee refuses a test under the implied consent law, police efforts to compel an arrestee to submit must cease, and the officer must comply with the statutory dictates.

¶ 39. The State argues that Bohling requires af-firmance of the trial court's denial of Marshall's suppression motion. A cursory review of Bohling would seem to support the State's position. After all, in Bohling, as in the instant case, when a person arrested for drunk driving objected to a blood test, "the officer informed him that restraint would be used if necessary." Bohling, 173 Wis. 2d at 535. The arrestee then Still refused to sign a consent form, but ultimately submitted to the blood test. Id. The supreme court, in a four-to-three decision, reversed this court's decision, which had affirmed the trial court's suppression of the test results. The supreme court concluded

that the dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances: (1) the blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and (2) there is a clear indication that the blood draw will produce evidence of intoxication.

Id. at 547-48. See also Wis. Stat. § 343.305(3)(c) (implied consent law "does not limit the right of law enforcement officer to obtain evidence by any other lawful means").

¶ 40. In Bohling, however, the supreme court never addressed the contention Marshall presents here: that the only penalty for refusing under the implied consent law is the revocation of the defendant's operating privileges; that nothing in the implied consent law authorizes an involuntary blood draw. In Bohling, the supreme court did not address the dictates of Wis. Stat. §§ 343.305(5) & (9). In Bohling, decided two years before this court's decision in Quelle, the supreme court did not have the opportunity to address the implications of this court's conclusion that implied consent warnings are "analogous" to Miranda warnings.

¶ 41. And in Bohling, the supreme court did not consider that police conduct, such as that in this case, endangers police, those they arrest, and medical personnel, and actually undermines the effective apprehension and prosecution of drunk drivers.

¶ 42. Inevitably, allowing police to threaten or compel blood draws after refusals would result in dangerous, physical confrontations between drunk drivers and police, and between drunk drivers and the medical personnel responsible for drawing their blood. Certainly, the legislature, delineating specific statutory procedures for an immediate and non-confrontational response to a refusal, could not have intended such a result. See State v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903 (1973) (court will reject statutory interpretation that renders absurd result).

¶ 43. Under the statutory scheme, a refusal is "immediately" met with a powerful response, see Wis. Stat. § 343.305(9)(a) — the virtual certainty of license revocation, and the virtual certainty that, in the event of a drunk driving trial, the jury will receive compelling evidence of guilt. Indeed, many seasoned prosecutors consider evidence of a refusal to be more powerful, and much less susceptible to impeachment, than evidence of blood-alcohol concentration.

¶ 44. Thus, when police promptly respond to a refusal as the statute dictates, they lose nothing in their fight against drunk driving. See Scales v. State, 64 Wis. 2d 485, 494, 219 N.W.2d 286 (1974) (implied consent law must not be construed to "inhibit the ability of the state to remove drunken drivers from the highway"). Indeed, they gain. Rather than prolonging their encounter with an arrestee and risking violence by threatening to strap or otherwise compel, officers who "immediately" respond as the statute dictates, will: (1) promptly trigger license revocation; (2) effectively establish evidence of the refusal, so utterly convincing to a jury; and (3) expeditiously complete their duties with that drunk driver and return to the streets to arrest the next one.

¶ 45. No wonder, therefore, that the supreme court has advised that, upon hearing a refusal, an officer should "respond to defendants in a manner that is both direct and polite." Reitter, 227 Wis. 2d at 231. No wonder, therefore, that the legislature mandated that "the law enforcement officer," upon a refusal, "shall immediately take possession of the person's license and prepare a notice to revoke," Wis. Stat. § 343.305(9)(a), not that the law enforcement officer shall strap the suspect and have blood forcibly withdrawn.

¶ 46. "[I]t is for the legislature," not the appellate courts, "to add to the statutory scheme." See Reitter, 227 Wis. 2d at 230. "Inasmuch as the implied consent law is a statutory creation, it is the legislature . . . which should impose duties upon officers in the implied consent setting." Id. at 217-18. Likewise, it is the legislature, if it sees fit to do so, that could offer officers the option of strapping a suspect and forcing a blood test.

¶ 47. But do we really want blood? Do we really want to erase the Miranda-like bright line demarcating an officer's singular and "immediate" response? Do we really want to force every Wisconsin law enforcement officer to decide whether to force refusing drunk drivers to submit to a blood test? Do we really want to allow the legal framework for combative citizen-police confrontations, and to require medical personnel to draw blood from resistive drunk drivers?

¶ 48. Hopefully, the supreme court will perceive this court's dangerous mistakes. Hopefully, the supreme court will wince at the prospect of police regularly restraining drunk drivers and delivering them to medical personnel for forcible blood draws. And hopefully, the supreme court will restore the statutory bright line, which protects law enforcement officers and, at the same time, strengthens the fair and effective prosecution of drunk drivers.

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

       "[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw." State v. Wodenjak, 2001 WI App 216, ¶ 7, 247 Wis. 2d 554, 634 N.W.2d 867 (citing State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993)).

       Marshall also alleges that the trial court erred in failing to conduct an evidentiary hearing regarding his postconviction motion. However, because we have concluded that Marshall is not entitled to relief, it was within the trial court's discretion to deny Marshall's postconviction motion without a hearing. See State v. Bentley, 201 Wis. 2d 303, 310-13, 548 N.W.2d 50 (1996).

       The supreme court explained:
      [A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

        State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993) (footnote omitted).

       Notwithstanding its use of the term "shall," Wis. Stat. § 343.305(9)(a) is "directory, not mandatory," for the purpose of determining whether a court has personal jurisdiction over a defendant despite the failure of a law enforcement officer to immediately prepare and serve the notice to revoke, following an arrestee's refusal. See State v. Moline, 170 Wis. 2d 531, 542, 489 N.W.2d 667 (Ct. App. 1992). Because neither the supreme court nor this court has decided whether the statute is directory or mandatory in the context presented in the instant appeal, I refer to the statute's "dictates," rather than to what might be termed its "directives" or "mandates."

       In State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987), while the supreme court concluded that the failure to advise an arrestee of the right to an alternative test under Wis. Stat. § 343.305(3) (a) did not preclude the police "from obtaining chemical test evidence by alternative constitutional means," id. at 41, the supreme court did not address the issue in this case. Indeed, although, a cursory reading of certain Zielke passages could support the State's position, it should be noted that, in Zielke, the arrestee had not refused to take a blood test and the supreme court was never considering the propriety of the police response to a refusal. See id. at 44-45.
      And in State v. Krause, 168 Wis. 2d 578, 484 N.W.2d 347 (Ct. App. 1992), while this court concluded that "the forcible extraction of a blood sample was a reasonable search by fourth amendment standards once [the defendant] refused the test under the implied consent law," id. at 583, and that, under the circumstances of the case, the test results were admissible, id. at 592, this court did not consider the statutory theory Marshall presents.

       From 1975 to 1982, the author of this opinion, while employed as a Milwaukee County Assistant District Attorney, prosecuted hundreds of drunk driving cases — approximately ten of them before juries — most with breath test evidence of blood-alcohol concentration, but many with refusals. From 1982 to 1992, the author of this opinion, while a circuit court judge, presided over approximately fifty drunk driving trials before juries, most with breath test evidence of blood-alcohol concentration, perhaps one or two with blood test evidence, and the rest with refusals.


author: CURLEY, J. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Anthony J. Dentici, Jr., Defendant-Appellant.
    Court of Appeals

      No. 01-1703.

      Submitted on briefs January 9, 2002.

    Decided February 5, 2002.

    2002 WI App 77
    (Also reported in 643 N.W.2d 180.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph E. Redding of Glojek Limited, of West Allis.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael R. Klos, assistant attorney general, and James E. Doyle, attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Anthony J. Dentici, Jr. appeals from that part of an order of the trial court denying his postconviction motion requesting sentence credit for the period of February 3,1997, to February 28,1997, and the whole of the order denying his motion for reconsideration of that same decision. Dentici claims that he is entitled to twenty-five days' credit pursuant to State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), because, after being sentenced to sixty days at the House of Correction as a condition of probation, he was unable to serve his sentence due to overcrowding. Because of the holding in Riske, that a person who is absent from jail through no fault of his own is entitled to sentence credit, we are compelled to reverse the order denying Dentici's motion for reconsideration, and remand the cause with directions to credit his sentence for the period of February 3, 1997, to February 28, 1997.

I. Background.

¶ 2. On February 3, 1997, Dentici pled guilty to operating a vehicle without the owner's consent, contrary. to Wis. Stat. § 943.23(3) (1997-1998). As a result of this conviction, Dentici was placed on probation. As a condition of his probation, the trial court ordered Dentici to serve sixty days in the House of Correction. On that same day, the trial court ordered the Sheriff to deliver Dentici into the custody of the Department of Corrections. When Dentici arrived at the House of Correction, he was told by the jailer that the jail was overcrowded, and that he should return on February 28, 1997. Dentici returned on February 28, 1997, and was released on May 13, 1997.

¶ 3. Subsequently, on February 5, 1998, Dentici's probation was revoked. The trial court sentenced Den-tici to two years' imprisonment. Dentici filed a series of motions seeking sentence credit. The trial court ultimately awarded Dentici 190 days of sentence credit, but denied his request for an additional twenty-five days' sentence credit for the period of February 3, 1997 to February 28, 1997.

II. Analysis.

¶ 4. Dentici argues that he must be awarded an additional twenty-five days of sentence credit under Wis. Stat. § 973.155(l)(a) (1999-2000) for the time from February 3,1997 to February 28,1997, because he was at liberty from the House of Correction through no fault of his own. As neither party disputes the facts surrounding Dentici's absence from the House of Correction for the period in question, "[t]he application of § 973.155(l)(a), Stats., to undisputed facts presents a question of law this court reviews de novo." State v. Beiersdorf, 208 Wis. 2d 492, 496, 561 N.W.2d 749 (Ct. App. 1997); see also State v. Rohl, 160 Wis. 2d 325, 329, 466 N.W.2d 208 (Ct. App. 1991) (stating that the question of whether a defendant is entitled to sentence credit pursuant to § 973.155 is a question of law which appellate courts review de novo).

¶ 5. In order to receive sentence credit, an offender must establish: (1) that he or she was in "custody," see State v. Magnuson, 2000 WI19, ¶ 25, 233 Wis. 2d 40, 606 N.W.2d 536; and (2) that the custody was in connection with the course of conduct for which the sentence was imposed, see State v. Demars, 119 Wis. 2d 19, 26, 349 N.W.2d 708 (Ct. App. 1984). Here, the State does not dispute that Dentiei's sentence of sixty days in the House of Correction as a condition of his probation was connected to the sentence later imposed for his probation violation. However, the State argues that Dentici is not entitled to sentence credit because he was not in "custody" from the time he was turned away from the House of Correction on February 3, 1997, until he reported back and was ultimately jailed on February 28, 1997. We disagree and conclude that Dentiei's leave from the House of Correction corresponds to the type of custody set forth in Wis. Stat. §§ 973.155(l)(a), 973.15(7) and 946.42(l)(a).

¶ 6. Wisconsin Stat. § 973.155(l)(a) provides, in relevant part:

A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced.

Wisconsin Stat. § 973.15(7) states: "If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence." While these statutory sections explain when an offender is entitled to sentence credit, neither explicitly defines "custody."

¶ 7. In Magnuson, the supreme court adopted a bright-line test to determine when an offender is in "custody" pursuant to Wis. Stat. § 973.155: "[A]n offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status." Magnuson, 2000 WI 19 at ¶ 25. Therefore, "custody" includes all situations "which the legislature has classified ... as restrictive and custodial by attaching escape charges for an unauthorized departure from those situations." Id. at ¶ 26. This definition includes, but is not limited to, the definition of custody contained in the escape statute, Wis. Stat. § 946.42(l)(a), see id., which states, in relevant part:

"Custody" includes without limitation actual custody of an institution, including a secured correctional facility.. . and constructive custody of prisoners and juveniles .. . temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise.

¶ 8. Dentici points to State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), as authority for his position that he was in custody from February 3, 1997 to February 28, 1997. In Riske, the defendant surrendered to the county jail on the same day that he was sentenced, but was told by the jailer that the jail could not accommodate him due to overcrowding. Id. at 262. The jailer directed Riske to report back twenty-four days later. Id. This court held that Riske was entitled to sentence credit for the period from when the jailer refused him admission until he was required to report back to the jail. Id. at 261. In reaching that conclusion, this court stated:

Riske must be given credit against his sentence for the period he was out of the jail at the direction of the sheriff, April 6 through May 1, 1987. This is because Riske was out of the jail through no fault of his. Sentences are continuous, unless interrupted by escape, violation of parole, or some fault of the prisoner, and "where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole,... his sentence continues to run while he is at liberty."
Section 973.15(7), Stats., by which the time that a convicted offender is at large after escape is not counted as service of the sentence, codifies the broader principle that a person's sentence for a crime will be credited for the time he was at liberty through no fault of the person.

Id. at 263-65 (citation omitted) (footnote omitted). Thus, under Riske, Wis. Stat. § 973.15(7) establishes that offenders, who report for sentencing but are turned away due to overcrowding, are in custody and will be granted sentence credit for the time they were at liberty through no fault of their own.

¶ 9. Like Riske, Dentici reported to jail on the same day that he was sentenced, was turned away due to overcrowding, and was, therefore, at liberty through no fault of his own. Accordingly, he is entitled to sentence credit for the intervening period before his admission, the twenty-five days from February 3, 1997 to February 28, 1997. See id; see also State v. Gilbert, 115 Wis. 2d 371, 379-80, 340 N.W.2d 511 (1983) (ruling that a defendant was entitled to sentence credit under Wis. Stat. § 973.155 for time spent in a county jail as a condition of probation); In re Crow: Habeas Corpus, 60 Wis. 349, 370, 19 N.W 713 (1884) (dictum); 14 Op. Att'y Gen. 512 (1925) (stating that a prisoner, who was refused admission to a prison on the day his sentence began because of a flu epidemic, was entitled to sentence credit for the intervening period until his admission).

¶ 10. The State attempts to distinguish the instant case from Riske by arguing that, unlike Riske, Dentici's sentence did not necessarily commence on February 3, 1997, because Dentici could have chosen to serve his sentence at a later date. However, this argument is belied by the facts. On February 3, 1997, Dentici was ordered "[t]o be incarcerated in the county HOC for 60 days." Further, on February 3, 1997, the trial court "ORDERED that the Sheriff. .. deliver the defendant into the custody of the Department [of Corrections] located in the City of Milwaukee." Thus, Dentici was sentenced on February 3,1997 - a sentence that necessarily commenced with the Sheriffs delivery of Dentici to the House of Correction. See Wis. Stat. § 973.03 (stating that a jail sentence includes "passing sentence upon a defendant who is to be imprisoned in a county jail"); see also Wis. Stat. § 801.02(7)(a)2 (stating that the definition of prisoner includes "any person who is . . . detained by a law enforcement officer").

¶ 11. Dentici's situation is comparable to that of the defendant in State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996). But cf. Magnuson, 2000 WI 19 at ¶¶ 42-43. In Sevelin, the trial court granted the defendant, Sevelin, a "furlough" to attend inpatient alcohol treatment as part of his bail modification. Sevelin, 204 Wis. 2d at 130. Sevelin argued that the trial court should have credited the time spent at the treatment center against his jail sentence because he was in "custody" at the treatment center. Id. at 129. In awarding Sevelin eighty-two days' sentence credit, this court noted that the defendant's release was undoubtedly temporary and that he would be required to return to jail upon leaving or completing his treatment. Id. at 133. Like Sevelin, Dentici was granted leave for a temporary period of time, twenty-five days, and was required to return on a specified date, February 28, 1997. These two important factors also distinguish Dentici's situation from Magnuson's. See Magnuson, 2001 WI 19 at ¶ 43 (noting that Magnuson was not required to return to jail on a specified date).

¶ 12. Moreover, the definition of custody in Wis. Stat. § 973.15(7), as established in Riske, comports with the definition of custody contained in the escape statute, Wis. Stat. § 946.42(l)(a). As explained in Mag-nuson:

Wisconsin Stat. § 946.42(l)(a) requires that a person be in actual or constructive custody under one of the listed situations. Actual custody includes custody of an institution, a secured correctional facility, a secure detention facility, a peace officer, or an institutional guard....
Constructive custody includes temporary leave for the purpose of work, school, medical care, or otherwise.

Id. at ¶ 40-41. Dentici's leave from the House of Correction was similar to leave granted under Wis. Stat. § 303.068, which is found in § 946.42(1)(a), in that "the proposed conditions of the leave, including date of departure, duration, and date of return," were specified. Wis. Stat. § 303.068(2). Further, like an inmate granted leave under § 303.068, Dentici was "restricted to the confines of this state." Wis. Stat. § 303.068(4). Therefore, Dentici was in constructive custody, i.e., in that he was "temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise." Wis. Stat. § 946.42(l)(a) (emphasis added). Had Dentici violated any of these conditions by, for example, not returning to the House of Correction on February 28, 1997, he would have been subject to an escape charge. See id.

¶ 13. Finally, although Riske was decided before Magnuson, the Riske definition of custody coexists with the Magnuson definition. As established in Magnuson, the definition of custody is not limited to the definition of custody established in Wis. Stat. § 946.42(l)(a). Magnuson, 2000 WI 19 at ¶ 26. Rather, the Magnuson court "acknowledge [d] the importance of reading statutes in pari materia. . . and includ[ing] for reference other statutory provisions in which the legislature has classified certain situations as restrictive and custodial by attaching escape charges for an unauthorized departure from those situations." Id. Thus, we conclude that Dentici is entitled to sentence credit because: (1) the definition of custody is not limited to the definition of custody established in Wis. Stat. § 946.42(l)(a); (2) Wis. Stat. § 973.15(7) establishes that custody includes the time that offenders are at liberty through no fault of their own due to overcrowding; and (3) Dentici would have been subject to an escape charge for violating any of the conditions of his constructive custody. Accordingly, we reverse the order denying Dentici's motion for reconsideration, reverse in part the order denying Dentici's postconviction motion, and remand the cause with directions to credit his sentence for the period of February 3, 1997, to February 28, 1997.

By the Court. — Order reversed; order reversed in part and cause remanded with directions.

FINE, J.

¶ 14. 0dissenting). State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, held that a person placed on in-home detention with electronic monitoring was not in "custody" for sentence-credit purposes because he was not subject to an escape charge if he left the confines of his house. The Majority holds that Anthony J. Dentici, Jr., is entitled to sentence credit for the time during which he was free to roam throughout the state until the date on which he was directed to report to the Milwaukee County House of Correction. Frankly, I fail to see the logic of that, and, accordingly, I respectfully dissent.

¶ 15. Magnuson established a bright-line rule to determine when a person is in "custody" for sentence-credit purposes: a person is in "custody" if he or she is "subject to an escape charge for leaving that status." Id. at ¶ 31. The Majority does not tell us under what provision of law, or under what circumstances, Dentici could have been guilty of "escape" before the date he had to report to the House of Correction, and I am aware of none; he was free — "escape from freedom" is not yet a crime.

¶ 16. In my view, State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), upon which the Majority relies, is not on point because there, as the Majority acknowledges, Riske's sentence, by statute, commenced "at noon on the day of sentence." Id., 152 Wis. 2d at 263, 448 N.W.2d at 261. Here, in contrast, Dentici was not "sentenced" to incarceration. Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43, 45 (1974) ("probation is not a sentence"). Unlike the situation in Riske, Dentici's period of incarceration did not start on the day of "sentencing"; he was placed on probation and did not have to report to the House of Correction until later. Moreover, Riske neither discussed nor relied on what Magnuson would later lay down as the bright-line rule that governs sentence-credit determinations. Indeed, the State . in Riske confessed error on the commencement-of-sentence/sentence-credit issue. Riske, 152 Wis. 2d at 263-264, 448 N.W.2d at 261-262. We are, of course, bound by Magnuson. I respectfully dissent.

       We also reverse that part of the order denying Dentici's postconviction motion that denied him sentence credit for the period of February 3, 1997 to February 28, 1997.

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

       Contrary to the dissent's argument that State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), was inapposite, it applies to the facts here. Therefore, unless Riske is overturned by the supreme court, we are required to: (1) follow its mandates, see Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997); and (2) attempt to synthesize Magnuson and Riske as we have in the instant case, see Sweeney v. General Cas. Co. of Wisconsin, 220 Wis. 2d 183, 192, 582 N.W.2d 735 (Ct. App. 1998) ("The general rule is that holdings not specifically reversed on appeal retain precedential value."). Further, we have not reverted to the detailed factual analysis of State v. Collett, 207 Wis. 2d 319, 558 N.W.2d 642 (Ct. App. 1996), but rather have determined that Dentici satisfied the definition of constructive custody as established under Wis. Stat. § 946.42(1)(a) pursuant to Magnuson.

      Moreover, the dissent's position, like the State's position spurned in Magnuson, "fails to acknowledge the 'without limitation' language of Wis. Stat. § 946.42(1) (a), language that precludes the escape statute from being as bright a line as the State maintains. Moreover, the State's rule is stagnant and falls short of recognizing the evolving methods of custody in our criminal justice system." Magnuson, 2000 WI 19 at ¶ 23.

       It may be that Dentici was in "custody" during the time a deputy sheriff took him to the House of Correction, if in fact, that is what happened. Clearly, though, once Dentici was told to go on his way, any "custody" vanished.


author: NETTESHEIM, RJ.

text:
    Michael W. Bruzas, Constance K. Bruzas and Christopher A. Bruzas, Plaintiffs, v. Cipriano Quezada-Garcia and Elida Torres, Defendants, American Family Mutual Insurance Company, Defendant-Appellant,  Employers Insurance of Wausau, Subrogated Party, Underwriters Laboratories, Inc., Subrogated Party-Respondent.
    Court of Appeals

      No. 00-0043.

      Submitted on briefs July 31, 2000.

    Decided February 6, 2002.

    2002 WI App 57
    (Also reported in 642 N.W.2d 207.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas M. Devine and Jo Anne Breese-Jaeck of Hostak, Henzl & Bichler, S.C., of Racine.
    On behalf of the subrogated party-respondent, the cause was submitted on the brief of Thomas H. Koch of Wille, Gregory & Lunden of Milwaukee.
    Before Nettesheim, RJ., Brown and Snyder, JJ.

       Petition to review denied 6-11-02.

   NETTESHEIM, RJ.

¶ 1. Underwriters Laboratories, Inc., (Underwriters) is a self-funded insurer under the Employee Retirement Income and Security Act, 29 U.S.C. §§ 1001-53, otherwise known as ERISA. The issue in this case is whether Underwriters is entitled to subrogation from American Family Mutual Insurance Company for medical payments it made on behalf of its plan participant, Michael W. Bruzas. The trial court concluded that it was and, by declaratory judgment, ordered American Family to reimburse Underwriters in the amount of $16,373.89.

¶ 2. We uphold the trial court's decision. We conclude that the determination of Underwriters' Plan Administrator that it is entitled to subrogation is due substantial deference on appeal. We further conclude that the plan administrator did not act unreasonably in asserting its right to subrogation under its plan language and, as such, we are bound by the Plan Administrator's determination.

FACTS

¶ 3. The relevant facts of this case are recited in a stipulation by which the parties narrowed the issues for the trial court.

¶ 4. We begin with the ERISA plan. Underwriters established a self-insured health benefits plan for its employees under ERISA. The plan creates a "Pension Finance and Benefits Committee" (Committee) which serves as the "Plan Administrator" as that position is defined in Section 3(16)(A) of ERISA. This Committee, in turn, appoints a "Claims Administrator" who is empowered to "initially determine the entitlement of Participants to receive benefits hereunder."

¶ 5. Besides the authority to appoint the Claims Administrator, the Committee holds additional powers important to this case. The Committee "shall have the power to construe and interpret the Plan provisions and to determine all questions arising under the Plan." In addition, the Committee "shall have the power to hear and decide appeals from determinations of the Claims Administrator as to the rights of Participants and Participating Dependents to benefits under the Plan."

¶ 6. Finally, the plan includes a right of subrogation to Underwriters which states:

If a Covered Person recovers any Covered Expenses from a third party in a legal action, or otherwise, then the Plan shall be subrogated to the rights and claims of such Covered Person to the extent of reimbursements hereunder with respect to such Covered Expenses.

¶ 7. Next, we address the events that produced this litigation. Michael W Bruzas was an Underwriters employee. On May 7,1994, Michael, his wife Constance, and their son Christopher were injured in an automobile accident caused solely by the negligence of Cipriano Quezada-Garcia. Pursuant to its ERISA plan, Underwriters paid $16,373.89 of Michael's medical expenses resulting from the accident.

¶ 8. The Bruzases sued Quezada-Garcia and American Family, the liability insurer of the Quezada-Garcia vehicle. The Bruzases also named Underwriters as an additional defendant because of its potential subrogation claims. Eventually, American Family paid its coverage limits to settle the Bruzases' claims. Under this settlement, Michael received $40,000 — far less than his actual damages. Thus, the parties agree that Michael has not been made whole within the meaning of Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982).

¶ 9. American Family also insured Michael. Pursuant to the underinsurance provisions of this policy American Family paid Michael an additional $57,056.61.

¶ 10. Under this settlement, Underwriters preserved its right to seek subrogation pursuant to the terms of its ERISA plan. Since this left Michael at risk if Underwriters prevailed on its subrogation claim, American Family agreed that it would hold Michael harmless for any payments he was required to make to Underwriters. Thus, Michael is not at financial risk in this case and he does not participate in this appeal.

¶ 11. The effect of the parties' stipulation was to "preserve all legal arguments concerning the rights of. . . Underwriters to assert claims against [the liability policy that American Family had issued to Quezada-Garcia] and/or the [underinsurance provisions of the policy that American Family had] issued to Michael Bruzas." Thus, the parties' stipulation created a test case on this issue. To that end, American Family and Underwriters asked the trial court for declaratory relief pursuant to Wis. Stat. § 806.04 (1999-2000). After reviewing the parties' written briefs, the court ruled that Underwriters was entitled to subrogation. American Family appeals.

DISCUSSION

Standard of Review

¶ 12. Pursuant to Wisconsin's "make whole" doctrine as set forth in Rimes, an insurer is not entitled to reimbursement until the insured has been compensated for his or her entire loss. Rimes, 106 Wis. 2d at 272. The ultimate issue in this case is whether Underwriters' right of subrogation under its ERISA plan preempts the "make whole" doctrine. American Family argues for various reasons that it does not. However, before addressing the parties' arguments on that issue, we must first resolve the threshold issue regarding the appropriate standard of review to be applied to an ERISA plan administrator's determination.

¶ 13. There are two Wisconsin Court of Appeals decisions on this subject, Newport News Shipbuilding Co. v. T.H.E. Insurance Co., 187 Wis. 2d 364, 523 N.W.2d 270 (Ct. App. 1994), and Schultz v. Nepco Employees Mutual Benefit Ass'n, Inc., 190 Wis. 2d 742, 528 N.W.2d 441 (Ct. App. 1994). While both decisions agree that the answer lies in the language of the particular ERISA plan, the cases are ambiguous as to the kind of plan language necessary to preserve the subrogation right and to afford deference to the plan administrator's determination.

¶ 14. In Newport News, an employee covered under the employer's self-funded ERISA plan was injured in a fireworks accident. See Newport News, 187 Wis. 2d at 368. The plan paid the employee's medical bills. The employee settled with the tortfeasor; however, the settlement did not make the employee whole. The settlement agreement provided that the tortfeasor would be responsible for any subrogated claims. The employer made a subrogation claim pursuant to the language of its plan. The trial court granted the subro-gation claim. See id. at 368-70.

¶ 15. The court of appeals upheld the right of subrogation. The court observed that "[s]ubrogation provisions of self-funded ERISA plans trump state subrogation rules." Id. at 371 (citing FMC Corp. v. Holliday, 498 U.S. 52, 58-65 (1990)). Thus, the court concluded that the " 'make whole' rule must be found, if found at all, in the federal common law applicable to ERISA." Newport News, 187 Wis. 2d at 371 (citing Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1296-97 (7th Cir.), cert. denied, 114 S. Ct. 308 (1993)). The court further concluded that the federal right to be made whole "exists only when the parties are silent." Newport News, 187 Wis. 2d at 371 (citing Cutting, 993 F.2d at 1297).

¶ 16. The court of appeals then examined the language of the plan to determine if the plan was "silent." Although the plan did not expressly address "make whole" principles, the court noted that the plan vested discretion in the plan administrator to interpret the plan and that the administrator's good faith interpretations were final and conclusive. Thus, the court concluded that the plan was not "silent" on the question of "make whole." See id. at 371-72. In light of that, the court concluded that it was required to give substantial deference to the interpretation of an ERISA plan by the plan administrator unless the interpretation was unreasonable. See id. at 372. Because the employer had consistently enforced its subrogation rights under its ERISA plan and because the "make whole" doctrine, although the law in Wisconsin, was not universal, the court concluded that the plan administrator's enforcement of the subrogation right was not unreasonable. See id.

¶ 17. We turn next to the later court of appeals decision in Schultz, issued only four months after Newport News. In Schultz, a dependent of an employee covered under the employer's self-funded ERISA plan was injured in an accident. The employer paid $46,245.81 toward the dependent's medical expenses. The tortfeasor's insurer paid its policy limits of $100,000 to the dependent. The employer made a subrogation claim against these proceeds pursuant to the subrogation right recited in the plan document. The trial court upheld the subrogation claim. See Schultz, 190 Wis. 2d at 743-44.

¶ 18. The court of appeals reversed, relying principally on Sanders v. Scheideler, 816 F. Supp. 1338 (W.D. Wis. 1993), affd by unpublished order, 25 F.3d 1053 (7th Cir. June 1, 1994) (No. 93-3044). In Sanders, the federal district court had interpreted the very same plan at issue in Schultz. See Schultz, 190 Wis. 2d at 744. Echoing the Newport News approach, but not citing the case, the Schultz court acknowledged that a deferential standard of review is appropriate in cases where the plan administrator has "discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Schultz, 190 Wis. 2d at 748 (citation omitted). The court concluded that such discretion is conferred where the plan grants power "to construe disputed or doubtful terms." Id. (citation omitted).

¶ 19. The Schultz court then looked to the language of the plan that authorized the plan administrator to "pass upon all claims by . . . members" and gave the administrator authority to terminate and amend the plan, to make final decisions with respect to proposed settlements, and to "pass upon" and "accept or reject" applications for members. Id. at 744, 749. The court concluded that this language "did not specifically grant the committee discretion to construe ambiguous provisions of the plan." Id. at 747 (emphasis added). Therefore, the court concluded that it "owed no deference to the committee's decisions but would review them de novo." Id. In so holding, the court rejected the employer's related argument that the administrator's authority to "pass upon all claims" and the director's authority to make "final" decisions on disputed settlements served to vest the administrator with "interpretive discretion." Id. at 749 n.8 (citation omitted).

¶ 20. Although Underwriters' ERISA plan in this case does not expressly use the term "discretion," the grant of authority to the Plan Administrator is nonetheless very broad. The Claims Administrator, which is a subset of the Committee as the Plan Administrator, is authorized to "initially determine the entitlement of Participants to receive benefits hereunder." Moreover, the Committee has "the power to construe and interpret the Plan provisions and to determine all questions arising under the Plan." In addition, the Committee, which serves as the appellate tribunal over the determinations of the Claims Administrator, has the power to determine the "rights of Participants and Participating Dependents to benefits under the Plan."

¶ 21. Given this broad language, we conclude that the Plan Administrator has the requisite discretion contemplated by Newport News, even though the plan language does not use that express term. We take particular note that Newport News does not say that an express grant of discretion is necessary before judicial deference is required.

¶ 22. While we recognize that the Schultz court provides a different analysis regarding the deference to be given a plan administrator's interpretation, we conclude that the better-reasoned analysis is provided in Newport News. See State v. Kuehl, 199 Wis. 2d 143, 149, 545 N.W.2d 840 (Ct. App. 1995) (faced with two conflicting court of appeals decisions, "we are free to follow the decision which we conclude is correct"). We do so based on our determination that Schultz places an unreasonable burden upon an ERISA plan by requiring the use of specific wording to convey the discretion to the plan administrator that is otherwise clearly conveyed by equivalent language in this case. Consistent with our holding in Newport News, we afford substantial deference to the determination of Underwriters' Plan Administrator.

¶ 23. Here, Underwriters' Plan Administrator determined that it was entitled to reimbursement from American Family based on the plan language, including its subrogation clause. As in Newport News, we cannot conclude that the plan is silent as to subrogation. Nor can we conclude that the Plan Administrator acted unreasonably in asserting Underwriters' right of sub-rogation. We therefore need not reach the parties' arguments pertaining to the plan language. See Fons v. Hotel Employees and Rest. Employees Int'l Union, 1991 WL 340288, 3 (E.D. Mich. 1991) (mem.) (Having determined the plan's actions were not arbitrary and capricious, the court declined to determine which party had misconstrued the plan's language.). We uphold the trial court's judgment.

CONCLUSION

¶ 24. We conclude that Underwriters' Plan Administrator's determination that Underwriters was entitled to subrogation from American Family for expenses paid on behalf of the Bruzas family was not unreasonable and, therefore, we are bound by it. Newport News, 187 Wis. 2d at 372. We affirm the trial court's judgment.

By the Court. — Judgment affirmed.

       This authority is restated in a later section of the plan as follows: "The Claims Administrator shall initially determine all rights of Participants and Participating Dependents to benefits hereunder."

       Unlike the $40,000 American Family payment to Michael under the liability policy covering the Quezada-Garcia vehicle, the parties' stipulation does not expressly state whether this additional underinsurance payment by American Family made Michael whole. However, the tenor of the appellate briefs and the oral arguments before this court appear to presume that Michael was not made whole by the totality of the American Family payments. Underwriters' position is not that Michael was made whole, but rather that the "make whole" doctrine does not apply in this ERISA setting.

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

       Specifically, American Family argues: (1) the subrogation provision of the plan does not extend to the payments received by Michael; (2) the subrogation provision is deficient because it does not recite a priority of payments; (3) American Family's policy specifically excludes subrogated insurers from coverage; and (4) the right to subrogation unconstitutionally infringes upon the insurance contract between American Family and Michael.

       We note that we certified this issue to the Wisconsin Supreme Court on November 15, 2000. The supreme court accepted certification. However, following oral arguments, the supreme court issued a per curiam decision dismissing the certification as "improvidently granted." The decision notes that Underwriters had conceded at oral argument that its Plan Administrator "has not in fact issued a determination or interpretation of the plan's subrogation clause." While we appreciate this language by the supreme court, we do not consider ourselves bound by it. The court was merely explaining why it believed that it had improvidently accepted certification. The court's language was not uttered in an opinion substantively addressing either the facts or the law relevant to the case. While we agree that there is no document expressly setting forth the plan administrator's decision, the position taken by the Plan Administrator is self-evident in the actions taken by the Committee which serves as the Plan Administrator and in the conduct of Underwriters' legal team defending that action.

        Schultz v. Nepco Employees Mutual Benefit Ass'n, Inc., 190 Wis. 2d 742, 528 N.W.2d 441 (Ct. App. 1994), does not cite to or address Newport News Shipbuilding Co. v. T.H.E. Insurance Co., 187 Wis. 2d 364, 523 N.W.2d 270 (Ct. App. 1994).

       The court also remanded for a "make whole" hearing. See Schultz, 190 Wis. 2d at 753.

       Actually, the powers we have enumerated come from the plan in Sanders v. Scheideler, 816 F. Supp. 1338 (W.D. Wis. 1993), affd by unpublished order, 25 F.3d 1053 (7th Cir. June 1, 1994) (No. 93-3044). But since the Sanders plan was the same as the one before the court in Schultz, we conclude that the Schultz plan recited the same language.

       As indicated by the supreme court's previous acceptance of our certification in this case, this case is worthy of supreme court review. Such review would also allow the supreme court to address whether our approach of adopting the better reasoned of conflicting court of appeals decisions comports with Cook v. Cook, 208 Wis. 2d 166, 185-90, 560 N.W.2d 246 (1997).


author: BROWN, J.

text:
    In the Interest of Terry T., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Terry T., Respondent-Appellant.
    Court of Appeals

      No. 01-2226.

      Submitted on briefs December 3, 2001.

    Decided February 6, 2002.

    2002 WI App 81
    (Also reported in 643 N.W.2d 175.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Gregory Bates of Bates Law Office of Kenosha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Phillip A. Koss, district attorney, and Diane M. Resch, assistant district attorney.
    Before Brown, Anderson and Snyder, JJ.
   BROWN, J.

¶ 1. In this case the State seeks to place a juvenile in the Serious Juvenile Offender Program (SJOP) even though such placement was not part of the original dispositional order. The State argues that the juvenile's current age and escalating sexually offensive conduct qualify him for the SJOP and it asks us to affirm the trial court's order changing placement and extending the original dispositional order. We determine that the juvenile justice code authorizes a trial court to consider an SJOP placement only as part of an original disposition; it has no authority to consider the SJOP as a dispositional tool in any subsequent proceeding. The order of the trial court is reversed.

¶ 2. On August 20, 1998, a petition for delinquency was filed alleging that twelve-year-old Terry T. sexually assaulted an eight-year-old boy while both were residing in foster care. Terry admitted committing the offense, but argued that he was not responsible due to mental disease or defect. After hearing the testimony of two expert witnesses who interviewed Terry, the trial court found him to be responsible and set the matter for a dispositional hearing. The disposition resulted in supervision with the Walworth County Department of Social Services and placement in the Homme Home, a Type 2 facility, which has a sex offender treatment program for persons with cognitive disabilities. The order, dated August 27, 1999, was set to expire on August 27, 2000. On August 25, 2000, the State moved for and received an extension of the original order for another year — until August 27, 2001. At the time, Terry was fifteen and did not object to the extension.

¶ 3. On February 15, 2001, the State moved to revise the dispositional order and change placement to the SJOP The trial court dismissed the petition, holding that the State needed to file an extension of the order rather than a revision. On February 22, 2001, the State moved for the extension and change of placement to Ethan Allen School for the SJOP with a requisite five-year disposition. Terry objected, arguing that "[b]e-cause there was no finding at the time of the original dispositional order that [he] . . . should be under the [SJOP], [he did not] believe the statutes allow for this court to extend an order to place him into the [SJOP]." Counsel specifically pointed to statutory provisions that state no extension may exceed one year and no change may extend the expiration date of the original order. The State responded that the SJOP is not subject to the one-year strictures and may be used by the court as a dispositional option even if it is not part of the original disposition. The court overruled Terry's objection on the theory that "the specific overrules the general."

¶ 4. The State then offered the following recitation to support a finding that no placement other than secure correctional placement was appropriate: "[Terry] became sexually aroused when in the presence of young children or animals, he has touched girls on the school bus, stole the foster mother's underwear and masturbated with them, attempted to leave his bedroom every night... and he stole a knife." The court found that the State satisfied the statutory prerequisites for an SJOP disposition, namely, that Terry had been found delinquent under a Class B felony, that he posed a danger to the public and that he required restrictive custodial treatment. The court issued an order for change of placement and extension, recommending placement in the SJOP at Ethan Allen School.

¶ 5. On appeal, we are faced with an issue of first impression in Wisconsin: whether on a motion to extend supervision or change placement a juvenile court has the authority to order a juvenile's placement in the SJOP when that placement was not part of the original disposition. This is a question of statutory interpretation that requires harmonizing various statutes under the new Wis. Stat. ch. 938 procedures. The proper construction of statutes is a question of law that we review de novo. Wis. Cent. Ltd. v. DOR, 2000 WI App 14, ¶ 9, 232 Wis. 2d 323, 606 N.W.2d 226, review granted, 2000 WI 36, 234 Wis. 2d 175, 612 N.W.2d 732 (Wis. Mar. 20, 2000) (No. 99-0194). We begin our discussion with a review of the relevant provisions of the juvenile justice code.

¶ 6. Wisconsin Stat. ch. 938 states that part of its legislative purpose is to "respond to a juvenile offender's needs for care and treatment, consistent with the prevention of delinquency, each juvenile's best interest and protection of the public, by allowing the judge to utilize the most effective dispositional option." Wis. Stat. § 938.01(2)(f). The code allows numerous disposi-tional options and leaves the disposition of the juvenile's delinquency adjudication to the sound discretion of the court. Wis. Stat. § 938.34; State v. James P., 180 Wis. 2d 677, 682, 510 N.W.2d 730 (Ct. App. 1993).

¶ 7. The code also unambiguously states that all dispositional orders shall expire at the end of one year. Wis. Stat. § 938.355(4). Furthermore, any extensions of an order shall not exceed one year, Wis. Stat. § 938.365(5), and no revision or change of placement may extend the expiration date of the original order. Wis. Stat. §§ 938.363(l)(b), 938.357(6).

¶ 8. There are three exceptions to the one-year rule under the code. First, disposition to a Type 2 child-caring institution or secured correctional facility may be for two years. Wis. Stat. § 938.355(4)(b). Second, disposition to the SJOP requires a mandatory five-year term. Id. Finally, a disposition may be extended beyond one year if a petition for termination of parental rights has been filed. Sec. 938.355(4)(a).

¶ 9. In this instance, there is no question that Terry's original placement was not to the SJOP or a secured institution. Indeed, the record clearly indicates that all parties agreed that the most appropriate placement for Terry, based on his history and behavior, was the Homme Home, which has a sex offender treatment program specially designed for people with cognitive disabilities. In fact, the court postponed the disposi-tional hearing to accommodate an opening at Homme Home later in the summer. The State believed this was "the best place for him" and would avoid Lincoln Hills placement. Terry made no objection and at the subsequent dispositional hearing, which coincided with the opening at Homme Home, the court concurred that Homme Home placement was "very appropriate under the circumstances." The dispositional order had a one-year expiration date.

¶ 10. Terry acknowledges that postdisposition he may be placed in a secured correctional facility and that such placement may be periodically extended. He asserts, however, that pursuant to Wis. Stat. § 938.365(5), any extension of his original disposition may only be for one year. Therefore, he argues, the juvenile court had no authority to order a period of five years in the SJOP unless the proper findings were made in the original disposition.

¶ 11. The State responds that nothing in the statutes specifically mandates that the SJOP be considered at the original disposition or that the SJOP may not thereafter be considered by the juvenile court in an extension or change of placement proceeding. The State also asserts that the SJOP is a more specific statute and therefore its time frame takes precedence over the more general time limitations for extensions.

¶ 12. We are not persuaded by the State's construction of the statutes. Indeed, as we interpret the statutes, there is no ambiguity or even conflict between the time frames at issue here. The five-year SJOP is a placement that occurs at an original disposition; it is not a means to extend or revise a disposition already in effect. Furthermore, it is quite clear that Terry, as a twelve-year-old, was not eligible for the SJOP at his original disposition. Nor did any of the parties at that time believe that a secured correctional facility was the most appropriate placement for him. To support this interpretation, we need look no further than the language of the SJOP provisions.

¶ 13. Wisconsin Stat. § 938.538 implements the SJOP and states that "[t]he department shall administer a serious juvenile offender program for juveniles who have been adjudicated delinquent and ordered to participate in the program under s. 938.34(4h)." Wisconsin Stat. § 938.34(4h) is found in the statute authorizing the juvenile court to make original dispositions for juveniles found delinquent. We note that § 938.538 does not cross-reference to the statutes for revision, extension or change of placement as proceedings that may result in placement in the SJOP Moreover, § 938.538(5)(c) explicitly precludes application of the change in placement and revision statutes once a juvenile is placed in the SJOP Therefore, although § 938.538 does not expressly state that the SJOP can only be implemented as an original disposition, we believe that this is exactly the thrust of the statute. We now turn to the provisions for placement in the SJOP found in § 938.34(4h) and (4m).

¶ 14. The first requirement for placement of a juvenile under Wis. Stat. § 938.34(4h) is that he or she must have attained the age of fourteen and been adjudicated for committing certain offenses, one of which is sexual assault of a child. The judge must also find that "the only other disposition that would be appropriate for the juvenile would be placement of the juvenile in a secured correctional facility under sub. (4m)." Sec. 938.34(4h)(b). Subsection (4m) then provides that a twelve-year-old juvenile may be placed in a secured correctional facility only if the juvenile has been found delinquent for the commission of an act which, if committed by an adult, would be punishable by a sentence of at least six months, and the juvenile is found to be a danger to the public and to be in need of restrictive custodial treatment.

¶ 15. There is no doubt that at the time of Terry's original disposition, he was not eligible for placement in the SJOP Although he had committed a violation enumerated in subsec. (4h), he had not attained the requisite age of fourteen. Therefore, the trial court would have had no authority to place Terry in the SJOP had it been so inclined. The fact is, however, neither the court nor the State was inclined to place Terry in a secured correctional facility. Indeed, as we discussed previously, they went out of their way to ensure that Terry was placed at the non-secured residential treatment facility at Homme Home. Thus, the requirement that the judge find that the only appropriate disposition would be placement in a secured correctional facility was clearly not satisfied. See Wis. Stat. § 938.34(4h)(b).

¶ 16. Given our conclusion that Terry was not originally eligible for the SJOP we find it untenable to allow him to be placed in the program at a later proceeding. Such a result would allow the State to bootstrap the original sexual assault violation as a basis for placement in the SJOP now that Terry is of age, even though the court had previously concluded secured placement was not the most appropriate setting. We cannot allow the State to avoid meeting the criteria for the SJOP at the original disposition by piggybacking it on to Terry's more recent misconduct for which no new charges were ever filed. While we have no quarrel with the State's argument that Terry's subsequent sexually offensive behavior makes him a threat to the public and in need of restrictive custodial treatment, the SJOP cannot now be used as a dispositional tool. As Terry concedes, the trial court can place him in a secured correctional facility, even if the change is not authorized under the original dispositional order, and extend the placement in one-year increments. Wis. Stat. § 938.357(1), (6).

¶ 17. In conclusion, we determine that the five-year SJOP is a placement that must occur at an original disposition; it is not a disposition to extend, revise or change a placement already in effect. To tack a five-year disposition onto a one-year disposition would violate the clear statutory mandate that all extensions not exceed one year and that no revision or change of placement extend the expiration of the original dispo-sitional order. Therefore, we reverse the order for extension of the dispositional order and change of placement. The terms of any further extensions shall be limited to one year and Terry shall not be subject to the provisions of the SJOP in the absence of new charges being filed.

By the Court. — Order reversed.

       These "facts" are apparently contained in a change of placement report filed as part of the petition; however, it does not appear to be contained in the record before us.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version.

       Terry waived the time limits for holding the dispositional hearing.

       We are also mindful that Terry admitted the sexual assault at the original disposition. It is quite possible that had Terry known that in the future his one-year disposition would be converted to a five-year disposition, he would have responded differently to the petition for delinquency.


author: PER CURIAM.

text:
    In re the Estate of Melvin Reise, Deceased: State of Wisconsin ex rel. Kurt W. Reise, by Kathleen Haskell Reise, general guardian, Petitioner, v. Kay Morlen, Register in Probate Washington County, Respondent.
    Court of Appeals

      No. 01-2939-W.

      Submitted on petition for supervisory writ December 13, 2001.

    Decided February 6, 2002.

    2002 WI App 83
    (Also reported in 642 N.W.2d 568.)

      On behalf of the petitioner, the cause was submitted on the petition for supervisory writ oí John L. Becker of John L. Becker & Associates of Brookfield.
    On behalf of the respondent, the cause was submitted on the memorandum in response to petition for supervisory writ of Kimberly A. Nass, County Attorney of Washington County.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   PER CURIAM.

¶ 1. Kathleen Haskell Reise (Reise), who describes herself as the general guardian of Kurt W Reise, an heir of Melvin Reise, see Wis. Stat. § 851.09 (1999-2000), by counsel, asks this court to exercise its supervisory jurisdiction over Kay Morlen, the Register in Probate for Washington County, on the grounds that Morlen erroneously refused to accept for filing Reise's petition to vacate or modify the order appointing a special administrator in the estate of Melvin Reise. The Register declined to accept Reise's petition for filing after determining that Reise was not an interested party to the action involving the estate. The petition was returned to counsel for Reise. We construe Reise's petition as one seeking mandamus relief compelling the Register to accept Reise's petition for filing.

¶ 2. In her response to the petition, Morlen, by counsel, argues that Reise's petition was insufficient because she is not an interested party and did not request the appointment of a guardian for Kurt. The Register contends that evaluating pleadings in this manner is part of her duty to file and keep "properly deposited" papers.

¶ 3. We first address our jurisdiction in this matter. Under Wis. Stat. Rule 809.51(1), "[a] person may request the court [of appeals] to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum." The Register is appointed by the judges of the county. Wis. Stat. § 851.71(1). The Register's duties and powers are part clerical (file and keep papers, Wis. Stat. § 851.72(1)) and part quasi-judicial (making orders for hearings in the judge's absence, Wis. Stat. § 851.73(1)). We conclude that the reference to "court" or "other person or body" in Rule 809,51(1) includes a Register in Probate. Cf. State ex rel. S.M.O. v. Resheske, 110 Wis. 2d 447, 454, 329 N.W.2d 275 (Ct. App. 1982) (court has supervisory authority over the clerk of circuit court).

¶ 4. We have supervisory jurisdiction over actions and proceedings in the circuit court. State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 91, 394 N.W.2d 732 (1986). Mandamus, which is within our supervisory authority, see State ex rel. Dressler v. Racine County Circuit Court, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991), is a proper remedy to compel a public officer to perform statutory duties, State ex rel. Lewandowski v. Callaway, 118 Wis. 2d 165, 171, 346 N.W.2d 457 (1984). Such relief is not available unless there is a clear legal right, a plain and positive duty, substantial damages or injury if relief is not granted, and no other remedy at law. Galuska v. Kornwolf, 142 Wis. 2d 733, 738, 419 N.W.2d 307 (Ct. App. 1987).

¶ 5. Reise argues that the Register in Probate did not have authority to reject her petition and had a plain legal duty to file the petition so that it might be heard by the court. We agree. The Register functions in both a clerical and quasi-judicial capacity. The Register has a duty to "[f]ile and keep all papers properly deposited with him or her." Wis. Stat. § 851.72(1). The Register may refuse to accept any paper for filing until the fee is paid. Wis. Stat. § 851.73(l)(f). The statute does not provide any other grounds for rejecting a pleading, and we are not persuaded by the Register's argument that she has the authority under either § 851.72 or § 851.73 to reject Reise's petition for filing on the grounds she has offered. The Register's acceptance of pleadings for filing falls within the Register's clerical functions, and the Register had a plain legal duty to accept Reise's petition for filing. Cf. Rome v. Betz, 120 Wis. 2d 528, 529-30, 355 N.W.2d 844 (Ct. App. 1984) (clerk of circuit court may not reject a properly tendered notice of appeal if appellant does not also tender the record forwarding fee).

¶ 6. In the context of the acceptance of papers for filing by the clerk of circuit court, the court in Granado v. Sentry Insurance, 228 Wis. 2d 794, 801, 599 N.W.2d 62 (Ct. App. 1999), observed that the legislature has established guidelines governing the clerk's ability to accept papers for filing. While the court declined to define precisely the phrase "properly deposited," the court noted that "properly deposited" relates to the act of accepting papers in a predictable fashion. See id. at 804-05. Granado does not establish that "properly deposited" permits the Register to evaluate the legal sufficiency of the pleading and bar it for a perceived insufficiency.

¶ 7. The Register in Probate shall accept for filing Kathleen Reise's petition to vacate or modify the order appointing a special administrator should Reise tender said petition for filing in response to this opinion.

By the Court. — Writ granted.

       Kathleen Reise identifies herself as the "general guardian" of her minor son, Kurt W Reise. We accept Reise's designation but need not address its legal validity.

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

       Even though subsequent proceedings have occurred in the probate case which might render moot this petition for a supervisory writ, we nevertheless decide the petition because it raises an issue of public importance and the issues presented in the petition are likely to arise again. Therefore, we address the issues to avoid uncertainty. See Lenz v. L.E. Phillips Career Dev. Ctr, 167 Wis. 2d 53, 66-67, 482 N.W.2d 60 (1992).

       Kathleen Reise is the ex-wife of Melvin Reise.

       Although we hold that we have supervisory jurisdiction over the Register in Probate, the preferred course is to seek mandamus relief in the circuit court. The circuit court is able to find facts; we are not. Kovalic v. DEC Int'l, 186 Wis. 2d 162, 172, 519 N.W.2d 351 (Ct. App. 1994). However, because the facts in this matter are undisputed, we exercise our jurisdiction to decide the petition before us.

       The Register claims that Reise's petition was insufficient because she did not request the appointment of a guardian for Kurt. Under Wis. Stat. § 879.23(2), a court may appoint a guardian ad litem when a hearing is ordered or on the day of the hearing before any proceedings are held. Therefore, the absence of an express request for the appointment of a guardian is neither a fatal defect in the pleading nor a basis for rejecting the pleading for filing.