source: Caselaw Access Project

author: SNYDER, PJ.

license: Public Domain

text:
    Jay M. H., M.D., Plaintiff-Appellant, v. Winnebago County Department of Health and Human Services, Defendant-Respondent.
    Court of Appeals

      No. 2005AP871.

      Submitted on briefs February 22, 2006.

      Decided March 29, 2006.

    2006 WI App 66
    (Also reported in 714 N.W.2d 241.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John D. Hyland of Hurley, Burish & Milliken, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Donald W. Becker of Becker Law Office, S.C., Madison.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.
   SNYDER, PJ.

¶ 1. Jay M.H., M.D., appeals from an order denying his reconsideration motion to remand a Winnebago County Department of Health and Social Services (DHSS) decision to DHSS based upon newly discovered recantation evidence. Jay M.H. contends that the circuit court erred in holding that it had no authority to order a remand. We are satisfied that the circuit court had authority to address the reconsideration motion and to remand the matter to the agency for further consideration of recantation evidence. We reverse the order and remand to the circuit court for further consideration.

¶ 2. Jay M.H. seeks relief from a DHSS determination that a Wis. Stat. § 48.981 (2003-04) allegation of child abuse had been substantiated. Jay M.H.'s reliance on Wis. Stat. ch. 68 for relief from the agency determination as an aggrieved individual is not challenged. See League of Women Voters of Appleton, Inc. v. Outagamie County, 113 Wis. 2d 313, 318 & n.2, 334 N.W.2d 887 (1983). Chapter 68 provides the procedure by which Jay M.H. may challenge the agency determination. Wisconsin Stat. § 68.001 sets forth the legislative purpose of the chapter:

Legislative purpose. The purpose of this chapter is to afford a constitutionally sufficient, fair and orderly administrative procedure and review in connection with determinations by municipal authorities which involve constitutionally protected rights of specific persons which are entitled to due process protection under the 14th amendment to the U.S. constitution.

¶ 3. Jay M.H. filed a Wis. Stat. § 68.08 request for a review of the DHSS child abuse substantiation determination, and he was afforded an evidentiary hearing before an administrative law judge (ALJ). The ALJ affirmed the DHSS substantiation of abuse determination and issued a Wis. Stat. § 68.12(1) final determination. Jay M.H. then exercised his right, under Wis. Stat. § 68.13, to judicial review of the ALJ final determination. Section 68.13(1) provides that:

Any party to a proceeding resulting in a final determination may seek judicial review thereof by certiorari within 30 days of receipt of the final determation. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision. (Emphasis added.)

¶ 4. On September 14, 2004, the circuit court affirmed the ALJ's final determination. On December 13, 2004, Jay M.H. filed a Wis. Stat. § 806.07(l)(b), (g) and (h) motion for reconsideration of the circuit court's order affirming the AU final determination. In his motion, Jay M.H. relied upon newly discovered evidence that the underlying accusations of child abuse contained in the substantiation determination had been explicitly recanted by the complainant. On February 18, 2005, the circuit court denied Jay M.H.'s motion for reconsideration for reasons stated on the record at the January 14, 2005 reconsideration motion hearing.

¶ 5. The circuit court denied Jay M.H.'s reconsideration motion at the January 14, 2005 hearing stating that it lacked authority to order a remand and that if any recourse existed back to the AU, it was not by ordering a remand to the AU or by reconsidering its prior decision. In addition, the circuit court addressed the recantation as newly discovered evidence, stating that:

Again, just because there is a recantation, that does not in and of itself become the ultimate determiner of what occurred here and would not necessarily change the fact finder's results anyway so the motion for reconsideration is denied.

¶ 6. Whether the circuit court has the authority to remand the Wis. Stat. § 68.12 final determination for further proceedings before the ALJ is a question of statutory interpretation. Our scope of appellate review is the same as the circuit court's where the circuit court does not take additional evidence. Cf. Lakeshore Dev. Corp. v. Plan Comm'n, 12 Wis. 2d 560, 565, 107 N.W.2d 590 (1961) (certiorari review is not confined to review of the agency proceeding when the trial court hears additional evidence). See also State ex rel. Hemker v. Huggett, 114 Wis. 2d 320, 323, 338 N.W.2d 335 (Ct. App. 1983) (the circuit court may not conduct a factual inquiry on statutory certiorari unless the statute authorizes the court to take evidence). The traditional standards of certiorari apply to an agency review unless the scope of review is enlarged by statute. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44. Wisconsin Stat. § 68.13 allows for remand by the circuit court to the agency for further proceedings but does not permit fact finding by the court.

¶ 7. We are satisfied that Wis. Stat. § 68.13 unambiguously provides authority for the remand of the agency final order for further proceedings necessary to insure the legislative purpose set forth in Wis. Stat. § 68.001. Accordingly, we next address whether the circuit court had authority to remand the Wis. Stat. § 68.12 final determination to the ALJ based upon a reconsideration motion that presents newly discovered recantation evidence.

¶ 8. Reconsiderations of decisions in judicial review proceedings are favored in Wisconsin. In Metropolitan Greyhound Management Corp. v. Wisconsin Racing Board, 157 Wis. 2d 678, 698-99, 460 N.W.2d 802 (Ct. App. 1990), we applied the following reasoning in recognizing the value of reconsiderations:

Motions for reconsideration pending appeal serve an important function. First, a trial court's reconsideration may obviate the necessity for an appeal. If so, the parties are not only spared unnecessary expense, but the interests of judicial economy are served as well. Second, even if an appeal is not avoided, a motion for reconsideration that challenges the trial court's decision can hone its analysis, and thus assist appellate review. There is nothing in the law or in logic that persuades us of an intent to exclude judicial review of administrative agency determinations from these benefits. (Emphasis added.)

¶ 9. Reconsideration of a Wis. Stat. § 68.12 ALJ final decision is consistent with the legislative purpose of the chapter to ensure fair proceedings for aggrieved individuals in connection with agency determinations. Here, the motion for reconsideration was not contested as untimely, was not objected to by DHSS, and was based upon newly discovered recantation evidence. The above Metropolitan Greyhound Management Corp. reasoning is applicable, and we are satisfied that the circuit court had the authority to address the reconsideration motion as a part of the Wis. Stat. § 68.13 judicial review. We now turn to newly discovered recantation evidence as the basis for potential relief from a Wis. Stat. ch. 68 final determination.

¶ 10. Judicial relief based upon recantation evidence is primarily a function of the criminal law. However, the use of recantation evidence has been addressed in the civil law context of an individual being determined sexually violent under Wis. Stat. ch. 980. In State v. Sorenson, 2002 WI 78, ¶ 9, 254 Wis. 2d 54, 646 N.W.2d 354, the circuit court precluded Sorenson from putting in the victim's recantation evidence regarding the underlying sexual assault conviction at his ch. 980 trial on the grounds of issue preclusion. Our supreme court remanded the matter to the circuit court with directions that the court address the recantation evidence under the test set forth in State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997). Sorenson, 254 Wis. 2d 54, ¶ 26.

¶ 11. We acknowledge that McCallum is a criminal case and that Sorenson has its genesis in a criminal matter as well. Nonetheless, our supreme court recognized that the fundamental fairness analysis was equally important in a Wis. Stat. ch. 980 proceeding, where the underlying statutory scheme demonstrates the intent to afford constitutional protections. Sorenson, 254 Wis. 2d 54, ¶¶ 17-20. Likewise, fundamental fairness is a cornerstone of the analysis here. Wisconsin Stat. § 68.001 states that the "purpose of this chapter is to afford a constitutionally sufficient, fair and orderly administrative procedure and review in connection with determinations by municipal authorities which involve constitutionally protected rights of specific persons which are entitled to due process protection under the 14th amendment to the U.S. constitution." Thus, Sorenson is relevant to our analysis under Wis. Stat. ch 68.

¶ 12. The Sorenson court determined that if the recantation evidence satisfies the test in McCallum, excluding the evidence from the Wis. Stat. ch. 980 procedure would be fundamentally unfair to Sorenson. Sorenson, 254 Wis. 2d 54, ¶ 25. In McCallum, while the inherent unreliability of recantation evidence was recognized, it was also recognized that such evidence was potentially sufficient for relief if the following criteria were shown by clear and convincing evidence: (1) the evidence was discovered after the conviction, (2) the defendant was not negligent in seeking evidence, (3) the evidence is material to an issue in the case, (4) the evidence is not merely cumulative, and (5) the recantation evidence is corroborated by other newly discovered evidence. McCallum, 208 Wis. 2d at 473-74, 476.

¶ 13. Here, we are satisfied that the circuit court should have applied the McCallum criteria to determine if the recantation evidence should be considered by the agency. We conclude that a remand to the circuit court is required for the court to conduct a hearing to determine if the recantation evidence meets the McCal-lum test. If so, the exclusion of that evidence from the Wis. Stat. § 68.12 proceeding, especially considering the expressed legislative purpose of Wis. Stat. ch. 68, would be fundamentally unfair to Jay M.H. A full determination of the effect of the recantation issue on the underlying agency determination has never been rendered, and fundamental fairness would dictate that Jay M.H. be provided an opportunity to present this evidence as meeting the criteria for consideration in the § 68.12 final determination proceeding.

¶ 14. In sum, we reverse the order denying Jay M.H.'s motion for reconsideration of the Wis. Stat. § 68.13 judicial determination and remand to the circuit court to address the test for newly discovered recantation evidence set forth in McCallum. If the McCallum criteria are established clearly and convincingly, the matter should be returned to the agency for consideration of the recantation evidence as a part of the Wis. Stat. § 68.12 final decision.

By the Court. — Order reversed and cause remanded with directions.

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

       Wisconsin Stat. ch. 68 covers municipal administrative procedure. By definition, a county agency's determination is governed by ch. 68. Wis. Stat. § 68.04 ("municipality" includes a county); Wis. Stat. § 68.05 ("municipal authority" includes municipal agencies making determinations or conducting reviews under ch. 68).

       Those standards are:
      (1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and, (4) whether the evidence was such that it might reasonably make the order or determination in question.

        Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44 (citation omitted).

       Wisconsin Stat. ch. 980 creates a civil commitment procedure primarily intended to provide treatment and protect the public, is not criminal in nature, and is not intended to punish the offender. State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995).


author: SNYDER, EJ.

text:
    Platt Barber and Charlotte Barber, Plaintiffs-Respondents-Cross-Appellants, v. Mary Weber and Ken Weber, Defendants-Appellants-Cross-Respondents.
    Court of Appeals

      No. 2005AP1196.

      Submitted on briefs February 17, 2006.

      Decided March 29, 2006.

    2006 WI App 88
    (Also reported in 715 N.W.2d 683.)

      On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Timothy V. hanger of hanger & Petersen, hhC of Hart-land.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Alan Marcuvitz and Andrea H. Roschke of Milwaukee.

      Before Snyder, EJ., Brown and Nettesheim, JJ.
   SNYDER, EJ.

¶ 1. Mary and Ken Weber appeal from an order granting summary judgment to Flatt and Charlotte Barber. The Webers contend that the final decision of the Zoning Board of Appeals regarding the legality of their business use of certain property is determinative and cannot be "superceded" by the circuit court other than on certiorari review. The Webers also challenge the order on grounds of laches and estoppel. In essence, the Webers' primary argument recites the doctrine of claim preclusion, which stands for the proposition that "a final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences." Kruckenberg v. Harvey, 2005 WI43, ¶ 19, 279 Wis. 2d 520, 694 N.W.2d 879. We agree with the Webers that the Barbers are precluded from relitigating their claims in circuit court; therefore, we reverse the order granting summary judgment to the the Barbers.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. The Webers are co-owners of a family business known as Ken Weber Trucking Service, which provides towing as well as vehicle repair and maintenance services. They applied for permission to establish their business at N27 W26560 Frospect Avenue in Fewaukee. On September 18, 2003, the Pewaukee Plan Commission concluded that the Webers' proposed use was a permitted principal use of the property, which was zoned B-5 Highway Business District. The Commission also tacitly concluded that the proposed use did not require a conditional use permit.

¶ 3. On October 16, 2003, the Barbers and others petitioned the Zoning Board of Appeals, seeking review of the Commission's decision. A hearing took place on December 10. The Zoning Board issued its written decision on February 2, 2004, and held, "The approval of the Plan Commission for the commercial towing service is affirmed, and the appeal herein is dismissed." The Webers waited thirty days before applying for a building permit to move forward with their use of the property. The Webers obtained their building permit in June 2004 and began razing part of the existing structure on the site and constructing a new addition.

¶ 4. On September 2, 2004, the Barbers filed a complaint asking the circuit court to "determine, adjudge, and declare that [The Webers'] proposed use of the Property is unlawful," to "prevent, enjoin, restrain and abate" the Webers' use of the property, to award costs and fees, and to award such other relief as deemed appropriate. The Barbers alleged that the Webers' use of the property was not a permitted principal use and even if it were, that the Webers were still required to obtain a conditional use permit to operate their towing service at the site.

¶ 5. The Barbers filed a motion for summary judgment. The circuit court held that the Barbers had the right to challenge the defendant's towing business under Wis. Stat. §§ 62.23(7) (f)2. and 62.23(8) without having to pursue certiorari review under § 62.23(7)(e)10., and that even though the towing business was a permitted principal use under Pewaukee, Wis., Zoning Ordinance § 17.0421(l)(a) and (8) (1996), it required a conditional use permit under Pewaukee, Wis., Zoning Ordinance § 17.0209c (1996) because of its proximity to the intersection of two arterial highways. Thus, the court con-eluded that the towing operation was unlawful and must be abated and granted summary judgment to the Barbers. The Webers appeal.

DISCUSSION

¶ 6. The Webers contend that the circuit court's order "disregards the fact that all matters at issue in this litigation were previously determined by the Zoning Board of Appeals." They argue that the determination of the Zoning Board could have been reviewed had the Barbers petitioned for certiorari within thirty days of the Zoning Board's order as required by Wis. Stat. § 62.23(7)(e)10. The Webers assert that the circuit court improperly interpreted the law and erred when it granted summary judgment in favor of the Barbers.

¶ 7. We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WX 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

¶ 8. In the present case, no genuine issue of material fact exists. The only question we need resolve is whether the Barbers are precluded from bringing an action under Wis. Stat. §§ 62.23(7)(f)2. and 62.23(8)to pursue claims that were previously resolved in a final determination of the Zoning Board. Though the Webers characterize the appellate issues as "deference" to the administrative order, exhaustion of remedies, laches, and estoppel, we deem the primary issue on appeal to be one of claim preclusion. The Webers mention claim preclusion in their appellate brief but once and raised the issue of res judicata before the circuit court. The imprecise terminology employed by the Webers does not dissuade us that the primary contention on appeal is one of claim preclusion. Application of the doctrine of claim preclusion is a question of law, which this court reviews de novo. Kruckenberg, 279 Wis. 2d 520, ¶ 17.

¶ 9. Claim preclusion provides that a "final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences." Kruckenberg, 279 Wis. 2d 520, ¶ 19. The doctrine has three elements: (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits. Id., ¶ 21.

¶ 10. We can quickly address the first and third elements of claim preclusion. Neither party disputes that they were also parties to the Zoning Board proceeding and therefore there is identity between the parties. There is also identity between the causes of action. Presenting the same underlying facts as those considered by the Zoning Board, the Barbers pursue the same two claims in the circuit court; specifically, that the Webers' towing business is not a permitted principal use under the Pewaukee code and that, even if it was a permitted principal use, the business required a conditional use permit under the code. Where there is a "common nucleus of operative facts" there is identity of causes under Wisconsin's transactional approach to claim preclusion. See id., ¶¶ 25-26.

¶ 11. The remaining factor requires us to resolve whether an unreviewed agency determination is a "final judgment on the merits by a court with jurisdiction." See id., ¶ 21. Under certain circumstances, Wisconsin recognizes unreviewed agency decisions as final judgments for purposes of claim preclusion. See Lindas v. Cady, 183 Wis. 2d 547, 552-54, 515 N.W.2d 458 (1994) (discussing issue preclusion). Discussing preclusive doctrines, this court has explained that:

[The rules are not] restricted to cases where the prior adjudication was by a court, as opposed to an administrative agency: "When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata [or collateral estop-pel]

Acharya v. AFSCME, Council 24, 146 Wis. 2d 693, 697, 432 N.W.2d 140 (Ct. App. 1988) (quoting U.S. v. Utah Constr. and Mining Co., 384 U.S. 394, 422 (1966)). Thus, an unreviewed agency determination may have preclusive effect if the dispute was properly before the agency and the parties had an adequate opportunity to litigate. Acharya, 146 Wis. 2d at 697; Lindas, 183 Wis. 2d at 554.

¶ 12. Here, the Zoning Board was acting in an adjudicatory capacity when it reviewed the Barbers' appeal from the Pewaukee Plan Commission's decision. Furthermore, it is not, nor can it be, disputed that the issue of zoning was properly before the Zoning Board.

¶ 13. We must also determine whether the Barbers had "adequate opportunity to litigate" their claims before the Zoning Board. See Acharya, 146 Wis. 2d at 697. The record demonstrates that the Barbers did have such an opportunity. Both parties were represented by attorneys at the Zoning Board hearing, and both were permitted to submit briefs and present oral argument. The Zoning Board issued findings of fact, a decision and an order after considering the arguments of the parties and "the entire record." The Barbers had the opportunity for certiorari review in circuit court but elected not to petition for review. We conclude that the unreviewed agency order meets the criteria set forth by our supreme court in Acharya. Consequently, all elements required for claim preclusion have been met.

¶ 14. The Barbers counter that Wis. Stat. § 62.23(8) gives them the authority to pursue their claims regardless of the Zoning Board's final order and despite their decision not to seek certiorari review under § 62.23(7)(e)10. They emphasize that they are entitled to bring a direct cause of action that is "in addition to other remedies provided by law." See § 62.23(8); see also Jelinski v. Eggers, 34 Wis. 2d 85, 92, 148 N.W.2d 750 (1967).

¶ 15. We agree that the Barbers are not required to seek administrative remedies, or to exhaust administrative remedies, before seeking relief under Wis. Stat. § 62.23(8). See Jelinski, 34 Wis. 2d at 92. But that begs the claim preclusion issue presented by this case. The Barbers, like the parties in Jelinski, chose to forgo certiorari review of a board of appeals decision. See id. The Jelinski court held that § 62.23(8) relief was available to Jelinski despite the fact that neither Jelinski nor Eggers sought certiorari review of the board of appeals decision. See Jelinski, 34 Wis. 2d at 92. The Barbers implore us to do likewise.

¶ 16. We cannot draw the analogy that the Barbers desire because the facts and analysis in Jelinski are distinguishable. Jelinski filed suit under Wis. Stat. § 62.23(8) on September 10, 1962. Jelinski, 34 Wis. 2d at 88. The Jelinskis maintained that Eggers had violated the. side yard set back ordinance by building within two feet of the property line, resulting in damages. Id. at 91. A month later, Eggers petitioned for a height variance and a side-yard variance, acknowledging that his partially constructed garage violated two zoning ordinances. Id. at 89. The board of appeals granted the height variance, but denied the side yard setback variance. Id. Thus, there was no dispute that a side yard setback zoning violation existed. The Jelinski court considered and rejected Eggers' exhaustion of remedies argument, stating that Jelinski was not "aggrieved" by the board of appeals decision and that if anything, it was Eggers who failed to pursue administrative remedies. Id. at 92.

¶ 17. Two key differences distinguish Jelinski from the current case. First, unlike the Barbers, Jelin-ski did not seek administrative relief prior to filing a claim under Wis. Stat. § 62.23(8). Second, and relatedly, the Jelinski court's analysis focused on exhaustion of remedies. Here, the doctrine of claim preclusion, not exhaustion of remedies as explored in Jelinski, dictates whether the Barbers can relitigate their claims in circuit court.

¶ 18. Finally, the Barbers explain that their Wis. Stat. § 62.23(8) action is distinguishable from the administrative proceeding because it seeks "a remedy totally different than that provided by a certiorari review." Certiorari review under § 62.23(7)(e) 10. provides that the circuit court may only "reverse or affirm, wholly or partly, or may modify, the decision brought up for review." The Barbers essentially filed under § 62.23(8) hoping for a new day in court. However, neither the Barbers' desire for a different remedy nor their resort to alternative legal theories is sufficient to insulate them from the impact of claim preclusion. Kruckenberg, 279 Wis. 2d 520, ¶ 25-26 (legal theories employed, remedies sought, and evidence used may vary between the first and second action, but claim preclusion may still apply). Wisconsin's approach to claim preclusion expects that "parties who are given the capacity to present their 'entire controversies' shall in fact do so ."Id., ¶ 27 (quoting the Restatement (Second) of Judgments § 24(2) cmt. a (1982)). The Barbers cannot circumvent the doctrine of claim preclusion by electing to forgo certiorari review of the Zoning Board order and instead relitigating identical claims in circuit court under § 62.23(8). A final determination on the merits "orders parties' legal rights and duties with respect to the particular transaction or known set of facts that gave rise to the first suit." Kruckenberg, 279 Wis. 2d 520, ¶ 53.

¶ 19. Because the issue of claim preclusion is dispositive, we need not address the Webers' laches or equitable estoppel arguments. When the resolution of one issue disposes of an appeal, we will not address additional issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938).

CONCLUSION

¶ 20. Under the doctrine of claim preclusion, "a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings." Lindas, 183 Wis. 2d at 558 (citation omitted). We conclude that summary judgment in favor of the Barbers was improperly granted. Under the facts of this case, the doctrine of claim preclusion prevents the Barbers from relitigating their claims in circuit court under Wis. Stat. §§ 62.23(7)(f)2. and 62.23(8).

By the Court. — Order reversed.

       The Barbers had thirty days to commence an action in circuit court seeking certiorari review of the Zoning Board of Appeals decision. See Wis. Stat. § 62.23(7)(e)10 (2003-04). All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The relevant portions of Wis. Stat. §§ 62.23(7)(f)2. and 62.23(8) are substantially similar and provide "adjacent or neighboring" property owners with enforcement rights that are "in addition to other remedies." To the extent we discuss the Barbers' rights under § 62.23(8), the same analysis applies to their ability to proceed under § 62.23(7)(f)2. Section 62.23(8) states in relevant part:
      In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be . .. used in violation of this section or regulations adopted pursuant thereto ... any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction.

       In Wisconsin, the term "claim preclusion" has replaced "res judicata," and the term "issue preclusion" has replaced "collateral estoppel." Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 232 n.25, 601 N.W.2d 627 (1999).


author: HIGGINBOTHAM, J. DEININGER, J.

text:
    In re the Estate of Bert L. Warnecke II: Bert L. Warnecke, Sr., Appellant, v. Estate of Bert L. Warnecke II, Respondent.
    Court of Appeals

      No. 2005AP21.

      Submitted on briefs June 14, 2005.

      Decided March 30, 2006.

    2006 WI App 62
    (Also reported in 713 N.W.2d 109.)

      DeiningeR, J., concurs.
    On behalf of the appellant, the cause was submitted on the briefs of Gregory P. Seibold of Murphy Desmond S.C. of Madison.
    On behalf of the respondent, the cause was submitted on the brief of James C. Noonan of Stevens Point.

      A nonparty brief was filed on behalf of the State of Wisconsin by Joanne F. Kloppenburg, assistant attorney general, and Peggy A Lautenschlager, attorney general.
    Before Dykman, Deininger and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. Bert L. Warnecke, Sr. appeals an order of the circuit court denying his petition for return of real property in the administration of bis deceased son's estate. Warnecke argues Wis. Stat. § 77.88 (2003-04) requires the Department of Natural Resources to withdraw the subject property from the Managed Forest Land (MFL) program due to noncompliance with certification requirements, and therefore a contingency in the quit claim deed granting the property to his son was not met. We conclude the withdrawal provision of § 77.88(2) (f) is directory and therefore does not require the DNR to withdraw the subject property from the MFL program due to noncompliance with certification requirements. We therefore affirm the circuit court's order denying Warnecke's petition for the return of real property.

FACTS

¶ 2. On April 24, 2002, Warnecke and his wife quit claimed to their son, Bert L. Warnecke II, an unimproved parcel of real estate comprising approximately thirty-two acres, with Warnecke retaining a life estate in the property. The quit claim deed contained the following contingency:

As a condition of this bequest, the Grantee shall take such steps as may be necessary to continue the enrollment of the above described real estate under the Managed Forest Lands Program.

The quit claim deed was recorded on May 1, 2002.

¶ 3. Bert II died on September 19, 2002, without ever taking the necessary steps to continue the real estate under the MFL program. He died intestate. On November 18, 2002, a Petition for Administration of Bert II's estate was filed.

¶ 4. On March 3, 2003, Bert IPs girlfriend gave birth to a daughter. Genetic testing confirmed she is Bert IPs biological daughter. On November 20, 2003, the personal representative of Bert IPs estate filed a Notice of Land Conveyance and Petition for Transfer with the DNR on the advice of the estate's attorneys.

¶ 5. On June 22, 2004, Warnecke filed a Petition for Return of Real Property because of Bert IPs failure to satisfy the contingency in the quit claim deed requiring him to take steps necessary to keep the subject real estate enrolled in the MFL program. A hearing was held on this petition on September 13, 2004. The circuit court denied the petition, concluding there had been a transfer of ownership for the purposes of triggering compliance with the MFL statutes, but also concluding the DNR was able to accept certification of a transfer more than thirty days after the transfer because the applicable statutes do not require receipt of certification within thirty days to maintain enrollment, and use of the term "shall" in these statutes is directory rather than mandatory. Warnecke appeals.

DISCUSSION

¶ 6. We begin by discussing the Managed Forest Land program. The MFL program is generally contained in Wis. Stat. §§ 77.80-77.91. The MFL program was established to encourage the management of private forest lands for the production of future forest crops for commercial use, consistent with protecting and promoting individual property owners' objectives and compatible recreational uses, watershed protection, development of wildlife habitat, and public access for recreational property. Section 77.80. A property owner may petition the DNR to designate eligible land as managed forest land under § 77.82(2). With the petition, the property owner may either submit, or have the department prepare, a management plan that asserts the owner agrees to comply with all the plan's terms and with statutory provisions. Section 77.82(3)(e).

¶ 7. After its investigation, the DNR shall approve a petition that meets certain criteria. Wis. Stat. § 77.82(7)(a). If a petition is approved, the DNR issues an order designating the land as managed forest land. Section 77.82(8). Each owner of managed forest land must permit public access to the land for recreation, except that an owner may designate up to a maximum of eighty acres as closed to public access. Wis. Stat. § 77.83(l)-(2).

¶ 8. The DNR may order the withdrawal of managed forest land for certain reasons, including the owner's failure to comply with statutory provisions. Wis. Stat. § 77.88(l)(b)2. If the DNR determines the land should be withdrawn, it must issue an order withdrawing the land and assess a statutory withdrawal tax and fee. Section 77.88(l)(c). When a person transfers ownership of managed forest land, within ten days of the transfer that person must submit a report of the transfer signed by the former owner and by the new owner, along with a transfer fee. Section 77.88(2)(d). Within thirty days of the transfer, the new owner must submit to the DNR a form certifying the intent to comply with the existing management plan. Section 77.88(2)(e). If the new owner does not submit the certification, the DNR shall issue an order withdrawing the land and assess a withdrawal tax and fee. Section 77.88(2)00.

¶ 9. The appellate questions before us involve the interpretation of Wis. Stat. § 77.88. We review questions of statutory interpretation de novo. See State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496. Statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659. "[Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. "Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history." Id.

¶ 10. Wisconsin Stat. § 77.88(2) addresses the sale or transfer of MFL property and states, in relevant part:

(e) The transferred land shall remain managed forest land if the transferee, within 30 days after the transfer, certifies to the department an intent to comply with the existing management plan for the land and with any amendments agreed to by the department and the transferee, and provides proof that each person holding any encumbrance on the land agrees to the designation. The transferee may designate an area of the transferred land closed to public access as provided under s. 77.83. The department shall issue an order continuing the designation of the land as managed forest land under the new ownership.
(f) If the transferee does not provide the department with the certification required under par. (e), the department shall issue an order withdrawing the land and shall assess against the transferee the withdrawal tax under sub. (5) and the withdrawal fee under sub. (5m). Notwithstanding s. 77.90, the transferee is not entitled to a hearing on an order withdrawing land under this paragraph.

¶ 11. Warnecke argues the two "shalls" in Wis. Stat. § 77.88(2)(e) and (f) ("The transferred land shall remain managed forest land if the transferee, within 30 days after the transfer, certifies to the department an intent to comply with the existing management plan for the land" and "the department shall issue an order withdrawing the land") are mandatory, not directory, and therefore the DNR was compelled to issue an order withdrawing the land from the program. We disagree.

¶ 12. Although use of the word "shall" creates a presumption the statute is mandatory, the word "shall" may nonetheless be construed as directory if such a construction is "necessary to carry out the legislature's clear intent." Karow v. Milwaukee Co. Civil Serv. Comm'n, 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978). The following factors should be considered in determining the legislature's intent when presented with the word "shall" in the statutory context regarding time limits: (1) the omission of a prohibition or a penalty; (2) the consequences resulting from one construction or the other; (3) the nature of the statute, the evil to be remedied and the general object sought to be accomplished by the legislature; and (4) whether the failure to act within the time limit works an injury or a wrong. See id. at 572; see also Matlin v. City of Sheboygan, 2001 WI App 179, ¶ 6, 247 Wis. 2d 270, 634 N.W.2d 115.

¶ 13. We agree with the circuit court that the "shall" contained in the withdrawal provision of Wis. Stat. § 77.88(2)(f) is directory rather than mandatory. We address the Karow factors in order. We first note that there are indeed penalties assessed against a transferee who fails to provide proper certification; not only can the department withdraw the land from the MFL program but it can assess a withdrawal tax and withdrawal fee against the transferee. Section 77.88(2)(f), (5), (5m). The presence of a penalty lends support for construing the statute as mandatory. See Karow, 82 Wis. 2d at 571-72.

¶ 14. However, the second and third factors lend significant support for construing the provision as directory. The consequence of construing the statute to impose a mandatory time limit is withdrawal of lands from the MFL program that would otherwise continue in the program. The DNR Forest Tax Program Manager testified before the circuit court that the DNR, to encourage compliance with the MFL program, interprets Wis. Stat. § 77.88 to allow the DNR to approve a transfer and accept certification after the thirty-day period prescribed for compliance:

[W]e have established a policy that we would like to get compliance with the law rather than throwing somebody out because then we have some control and some input as to the management of the forest on those lands. And that's what this program is an incentive program for.
As a result, if — if we don't find out about the transfer until after the 30 days, we give the new owner an opportunity, 30 days or less, to file the transfer, and we move ahead with the transfer at that point.
If they don't file the transfer, then we would withdraw them from the program with a penalty.

We conclude this interpretation furthers the purpose of the MFL program:

The purpose of this subchapter is to encourage the management of private forest lands for the production of future forest crops for commercial use through sound forestry practices, recognizing the objectives of individual property owners, compatible recreational uses, watershed protection, development of wildlife habitat and accessibility of private property to the public for recreational purposes.

Wis. Stat. § 77.80. Interpreting this provision as mandatory would remove lands from this program for purely technical reasons that would often occur when a new owner is not aware of the provision, removing the very lands that the legislature intended to preserve through the MFL program.

¶ 15. Warnecke argues that the objective to be accomplished by the statute is "timely continued compliance with the requirements of the MFL program." We reject this argument because to hold this reasoning dispositive would be to determine that time limits are always mandatory, even when their mandatory application works against the purpose of the statutory scheme. A directory approach allows the DNR to further the purpose of the program by keeping lands in the program that in its expertise it deems worthwhile even if technical requirements are not met by transferees.

¶ 16. Warnecke further argues that the objective of "sound forestry practices" would be frustrated by allowing the DNR to keep lands in the program even if transferees have not met Wis. Stat. § 77.88(2) (f) because the withdrawal taxes and fees would not be collected, harming the taxpayers, and that there is the risk that during the period of noncompliance, the lands might be used for purposes inconsistent with the MFL. Warnecke notes that under a mandatory approach, lands removed from the program would still be eligible for later inclusion in the program, provided the owner met all the statutory requirements.

¶ 17. It is true that under a mandatory approach the program could still function, and transferees would be able to get lands readmitted to the program at a later date, but it is clear that the purpose of the program is better met by construing Wis. Stat. § 77.88(2)(f) as directory because the program would function much more effectively. The DNR retains the ability to remove lands from the program when owners are using the lands for purposes contrary to the program's purpose, and the program could retain lands that would otherwise be inadvertently ineligible for noncompliance with § 77.88(2)(f).

¶ 18. The fourth factor also lends support to the interpretation of the provision as directory. Warnecke has not persuasively demonstrated that the DNR's failure to issue an order withdrawing the land within thirty days after the property transferred resulted in an injury or a wrong. The wrong Warnecke points to is that the state would be deprived of future taxes and fees, and that he would lose control of the property. We disagree.

¶ 19. First, as we discuss above, the purpose of the statute, and thus the interests of the state, are better met by keeping properties in the program rather than assessing taxes and fees. Second, Warnecke's argument that losing control of the property would injure him is not dispositive because we note that whichever way we decide this case, one party stands to lose control of the property — Bert II's estate stands to lose control of the property if we construe the provision as mandatory rather than directory, and thus has an equally powerful argument for a statutory construction that saves him from injury. Third, we observe that there is no injury or wrong here such as that seen in Matlin, where a property owner would have had her buildings razed without a hearing if the time limits involved would have been mandatory. Matlin, 247 Wis. 2d 270, ¶ 9. After taking into account the Karow factors, this examination leads us to conclude that even if the thirty-day time period is read into Wis. Stat. § 77.88(2)(f), the time limit must be construed as directory, rather than mandatory.

¶ 20. Finally, Warnecke argues that the circuit court ignored Rotfeld v. DNR, 147 Wis. 2d 720, 434 N.W.2d 617 (Ct. App. 1988), where the DNR interpreted and the court concluded that Wis. Stat. § 77.16(7), a provision of the Woodland Tax Law program providing for declassification of land, was mandatory. Warnecke argues that the DNR should be bound by its interpretation of that statute and hold the similar provision at issue here mandatory as well. We disagree.

¶ 21. We first note that the circuit court did not ignore Rotfeld but rather, in fact, considered that case and distinguished it based on the differing legislative purposes between the Woodland Tax Law and the MFL program. We agree with the trial court's analysis. The dual purposes of the Woodland Tax Law are "encourag[ing] a policy of protecting from destructive or premature cutting the forest growth in this state," but doing so "in a manner which shall not hamper the towns in which such lands lie from receiving their just tax revenue from such lands." See Wis. Stat. § 77.01. In Rotfeld, we recognized these purposes were at odds with each other and concluded the provision declassifying lands and assessing tax penalties was mandatory, because the declassification and penalty provisions served the second purpose of preserving towns' interest in tax revenues. Rotfeld v. DNR, 147 Wis. 2d at 726-27. However, there is no parallel town interest purpose in Wis. Stat. § 77.80, and the two programs are distinguishable; the circuit court properly concluded Wis. Stat. § 77.88(2)(f) is directory.

CONCLUSION

¶ 22. We conclude the withdrawal provision of Wis. Stat. § 77.88(2)(i) is directory upon the DNR and therefore does not require the DNR to withdraw the subject property from the MFL program due to noncompliance with certification requirements. We therefore affirm the circuit court's order denying Warnecke's petition for the return of real property.

By the Court. — Order affirmed.

DEININGER, J.

¶ 23. {concurring). I join the majority in believing we must affirm the appealed order, but I would affirm for a different reason than the majority espouses. Because I would summarily affirm without deciding whether the Department of Natural Resources correctly interpreted its authority under Wis. Stat. § 77.88, I concur in only the majority's result.

¶ 24. The deed restriction on which Bert War-necke, Sr., bases his claim for the return of the disputed real estate to him requires that the "Grantee shall take such steps as may be necessary to continue the enrollment of the ... real estate under the Managed Forest Lands Program." By the time Warnecke petitioned the probate court for the return of the property, the deceased grantee's successor in interest (the personal representative of his estate) had taken such steps and the Department of Natural Resources had continued the property in the program. No further analysis by this court is necessary, or even proper, given that the department is not before us as a party to this litigation. The deed condition having been met, I would affirm the order denying Warnecke's petition without further discussion or inquiry.

¶ 25. The Department of Natural Resources was not a party to the present litigation in the circuit court and it is not a party to this appeal. Accordingly, neither we nor the circuit court could order the department, in this action, to reverse its determination to continue the property in the managed forest land program. We thus have no reason to inquire whether the department correctly interpreted Wis. Stat. § 77.88 or acted improperly by continuing the property in the program. The only way in which Warnecke could properly get a court to order the department to reverse its determination would be for him to have commenced a timely action for judicial review of the department's action under Wis. Stat. § 227.53, assuming, of course, that he was a "person aggrieved" by the administrative decision, see id. The department could then have defended its action and its interpretation of § 77.88, and a court, having proper jurisdiction over the department, could have ordered the administrative determination reversed if it disagreed with the department's interpretation.

¶ 26. Because the estate plainly prevailed by establishing that the property in question has continued to be enrolled in the managed forest land program, I would summarily affirm the appealed order. See Wis. Stat. Rule 809.21(1).

       Throughout this opinion we refer to Bert Warnecke, Sr. as 'Warnecke" and Bert Warnecke II as "Bert II."

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

       For purposes of this opinion we assume without deciding that Warnecke's argument that the thirty-day time limit in Wis. Stat. § 77.88(2)(e) is incorporated into the "certification required" under § 77.88(2)(f), is correct, because even if we assume that this interpretation is correct, our determination that § 77.88(2)(f) is directory resolves the case in Bert II's estate's favor. Similarly, because our conclusion that the "shall" in § 77.88(2)(f) is directory resolves the case, we need not discuss whether the "shall" in § 77.88(2) (e) is directory.

       After the parties briefed the appeal and it was submitted to this panel for disposition, the Department of Natural Resources moved for leave to submit a non-party brief, which we granted. Although we now have the benefit of the department's arguments in defense of its determination to continue the land in the program, the department's submission of a non-party brief does not provide either this court or the circuit court jurisdiction over it to affirm or reverse its determination. Further, I note that, after making its arguments on the merits of the statutory interpretation issue, the department also contends its decision to continue a transferred property in the managed forest land program, or to withdraw it from the program for failure to timely certify, "may be challenged only through judicial review under chapter 227, and may not be determined ... in any other action." As discussed above, I agree.


author: VERGERONT, J. LUNDSTEN, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher M. Medina, Defendant-Appellant.

    Court of Appeals

      No. 2005AP2314-CR.

      Submitted on briefs February 6, 2006.

      Decided March 30, 2006.

    2006 WI App 76
    (Also reported in 713 N.W.2d 172.)

      Lundsten, EJ., concurs.
    On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel P. Ryan, of Flottmeyer, Burgos, Ryan & Sayner, La Crosse.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Juan B. Colas, asst, attorney general, and Peggy A. Lautenschlager, attorney general.

    Before Lundsten, PJ., Vergeront and Higginbotham, JJ.

       Petition to review denied 6-14-06.

   VERGERONT, J.

¶ 1. Chris Medina appeals a judgment of conviction on eleven charges of burglary contrary to Wis. Stat. § 943.10(1)(a) (2001-02), as a repeat offender, and the order denying his motion for a new trial. The principal issues on appeal are: (1) did the circuit court erroneously exercise its discretion in denying Medina's motion, brought on the morning of jury selection, to disqualify the district attorney because he had, approximately three years earlier, represented Medina in another criminal case that, according to Medina, is substantially related to this case? and (2) did the circuit court err in denying Medina's postcon-viction motion that asserted he was entitled to a new trial because the district attorney had a conflict of interest?

¶ 2. We conclude that a circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the "substantial relationship" standard on the ground that the motion is untimely. The circuit court here properly exercised its discretion in denying Medina's motion, brought on the morning of jury selection, on the ground that it was untimely. Because the circuit court correctly denied the motion, when Medina moved post-verdict for a new trial on the ground that the district attorney had a conflict of interest because of the prior representation, Medina had to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina's interests. Based on the facts found by the circuit court, we conclude as a matter of law that Medina did not establish an adverse affect on his interests. Accordingly, the circuit court correctly concluded Medina was not entitled to a new trial. We therefore affirm.

BACKGROUND

¶ 3. The criminal complaint, charging Medina with thirteen counts of felony burglary, as a repeat offender, was filed on April 15, 2004; an amended information charging Medina with only eleven counts of felony burglary, as a repeat offender, was later substituted. The jury trial originally scheduled for July 12, 2004, was postponed. At an August 30 status conference, a jury trial was scheduled to begin October 12, 2004, with jury selection on October 11.

¶ 4. Before jury selection began on October 11, defense counsel moved for an adjournment of the trial and to have a new prosecutor assigned on the ground that the district attorney prosecuting the case had previously represented Medina at sentencing for a misdemeanor theft after revocation of probation. Counsel explained he had just learned this four days ago, in preparing for trial. He argued that the prior case, involving theft of a car stereo, was substantially related to the charges in this case, which involved entering vehicles and garages and stealing property.

¶ 5. The district attorney stated that, when the defense counsel called to tell him about his prior representation of Medina, he had no recollection of it. He had in fact been appointed on June 12, 2001, to represent Medina when he was sentenced for misdemeanor theft after probation was revoked; another attorney had represented Medina through the plea and original sentencing. The district attorney did not remember what the facts of the misdemeanor theft were, and, in his view, even though the prior case and this case both involved property crimes, they were not substantially related.

¶ 6. The circuit court denied the motion. It concluded that, while there did not appear to be a conflict of interest, if there were, Medina had waived the issue. The court stated that a standard scheduling order had been entered on June 9, 2004, which established a June 28 date for motions such as this to be filed; and Medina knew who the prosecutor was and could have informed his attorney of the prior representation in time to file a timely motion. The court noted that the jury panel had been called in and was ready to go. The court viewed Medina's failure to bring this to the attention of his attorney sooner as an effort to delay the trial.

¶ 7. The trial took place and Medina was convicted on all eleven counts. He was sentenced to seven years' confinement and three years' extended supervision on each count, all concurrent. He filed a motion for a new trial, asserting that the district attorney had a conflict of interest because of prior representation in a substantially related case, and this constituted a violation of Medina's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 8 of the Wisconsin Constitution, as well as a violation of SCR 20:1.9, Wisconsin's Rules of Professional Conduct for Attorneys. The accompanying affidavit of counsel averred that the presentence report referred to the earlier misdemeanor theft, and at sentencing the prosecutor referred the court to Medina's prior record, pointed out that Medina had been convicted of the misdemeanor theft, and referred to prior probation revocations, which included that for the misdemeanor theft.

¶ 8. The district attorney testified at the hearing on the motion. Consistent with his prior statements, he testified that he had not remembered that he had represented Medina until it was brought to his attention shortly before this trial. He identified his billing records from his representation of Medina, which showed that he had a conference with Medina and prepared for a hearing on July 9,2001, spending .6 of an hour; and on July 11, 2001, he spent an hour in conference with Medina and a half hour in court for the sentencing. The district attorney testified that he had no recollection of those meetings, of his conversations with Medina, or of representing him. He agreed that his conversations with Medina were privileged and that it was reasonable to assume he talked to Medina about the events that led up to the probation revocation and his prior involvement with criminal activity.

¶ 9. The argument to the court at the hearing focused on this court's decision in State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37. Medina's position was that, because he had brought the disqualification motion before trial, he did not have to show that the district attorney had actually obtained or used confidential information from him. According to Medina, under Tkacz, he had to show only that the current case and the prior case were substantially related and that the district attorney could have obtained information from the prior representation that was relevant to this case. Medina also argued that the district attorney's comments at sentencing, as described in the affidavit, showed that he had used information about the misdemeanor theft against Medina.

¶ 10. The district attorney's position was that under Tkacz Medina had to show he had obtained confidential information from Medina that was relevant to this case. Medina had not made this showing, the district attorney argued, because any information about Medina that he referred to at sentencing in this case was information he obtained from this case or from public records.

¶ 11. The circuit court denied the motion. It found that there had been no showing that the district attorney had used any confidential information from Medina in this case, and that the information he used at sentencing in this case was available from public records. The court viewed Tkacz as not establishing a clear rule to follow in this case. The court continued to consider it significant that the disqualification motion was brought just before jury selection "at the very last minute," when disqualification would have "put a hitch in the proceedings."

ANALYSIS

¶ 12. On appeal Medina argues that the circuit court erred in denying his motion for a new trial because it applied an incorrect standard of law. Medina asserts that, because he brought a motion to disqualify the district attorney before trial, the court must disqualify the district attorney if there is a substantial relationship between this case and the case in which the district attorney previously represented him. According to Medina, under Tkacz a substantial relationship exists if the district attorney could have obtained confidential information in the prior representation that is relevant to this case, and, he asserts, that standard is met in this case. Therefore, Medina concludes, he is entitled to a new trial.

¶ 13. The State disputes Medina's reading of Tkacz, arguing that there we concluded there was no substantial relationship because no relevant confidential information was actually obtained in the prior representation. The State also asserts that the circuit court properly took into account that Medina brought the motion just before jury selection instead of earlier. Finally, the State contends, there is no basis for concluding that Medina did not receive a fair trial.

¶ 14. Although the parties' arguments tend to merge the circuit court's denial of the motion to disqualify and the denial of the post-verdict motion, we analyze them separately. We first discuss the relevant case law and then address these issues: (1) did the circuit court erroneously exercise its discretion in denying the motion to disqualify brought on the day of jury selection? and (2) did the circuit court err in denying the postconviction motion for a new trial?

I. Case Law Background

¶ 15. In Tkacz, we adopted the "substantial relationship" standard for determining whether a prosecutor should be disqualified because he or she previously represented the defendant. 258 Wis. 2d 611, ¶¶ 9, 15. Under this standard, "where an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are 'substantially related.'" Id., ¶ 13 (citation omitted). We had previously applied the "substantial relationship" standard in civil cases, notably Berg v. Marine Trust Co., 141 Wis. 2d 878, 884-85, 416 N.W.2d 643 (Ct. App. 1987); and in Tkacz we relied on our discussion of the standard in Berg. Tkacz, 258 Wis. 2d 611, ¶ 13.

¶ 16. The "substantial relationship" standard embodies SCR 20:1.9, Wisconsin's Rules of Professional Conduct for Attorneys. Tkacz, 258 Wis. 2d 611, ¶ 15. See also Berg, 141 Wis. 2d at 885-86, 890. SCR 20:1.9 provides:

Conflict of interest: former client. A lawyer who has formerly represented a client in a matter shall not:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

¶ 17. We explained in Berg that a substantial relationship exists "if the factual contexts of the two representations are similar or related." 141 Wis. 2d at 889 (citations omitted). We also explained in Berg that it is irrelevant if the attorney actually obtained confidential information in the first representation or used it against the former client because "substantially related" means that the attorney "could have obtained confidential information in the first representation that would have been relevant in the second." Id. at 886 (citations omitted). See also id. at 891. In Tkacz, we quoted this definition from Berg of "substantially related." Tkacz, 258 Wis. 2d 611, ¶ 13. As we explained in Berg, the "heart of the substantial relationship standard is the presumption that a client will disclose confidences to his or her attorney.... [and] the presumption is considered irrebuttable because of the impropriety of testimonial inquiry into conversations between attorney and client to determine whether actual confidences were disclosed." 141 Wis. 2d at 891 n.5. In essence, the application of the substantial relationship standard, as we observed in Tkacz, insures that "the ensuing criminal [or civil] trial will avoid any potential impropriety" and provides "the opportunity to 'head off the conflict before it actually happens.'" 258 Wis. 2d 611, ¶ 15 (citation omitted).

¶ 18. Although disqualification of an attorney where the substantial relationship standard is met is an important means of ensuring compliance with ethical canons, Berg, 141 Wis. 2d at 887, we have held that failure to raise a disqualification claim in a timely manner may result in waiver. Batchelor v. Batchelor, 213 Wis. 2d 251, 256-59, 570 N.W.2d 568 (Ct. App. 1997). In Batchelor, we held that the party to a domestic abuse injunction and divorce proceeding waived the right to raise an attorney disqualification claim because: (1) she knew of the facts that formed the basis for the claim; (2) she unreasonably delayed in bringing the motion; (3) the failure to object earlier permitted an inferred acquiescence; and (4) the attorney had already done substantial work for the other party. Id. at 256-60.

¶ 19. In contrast to the "substantial relationship" standard for disqualification from further participation in a case, a different analysis applies when a criminal defendant claims for the first time in a postconviction motion that either the prosecutor or the defense counsel had a conflict of interest because of prior representation. In State v. Love, 227 Wis. 2d 60, 63, 594 N.W.2d 806 (1999), the supreme court considered an ineffective assistance of counsel claim based on the fact that the defense counsel at a second sentencing hearing had previously represented the State in the same case. The court concluded that

in order to establish a Sixth Amendment violation on the basis of a conflict of interest in a serial representation case, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel converted a potential conflict of interest into an actual conflict of interest by (1) knowingly failing to disclose to the defendant or the circuit court before trial the attorney's former prosecution of the defendant, or (2) representing the defendant in a manner that adversely affected the defendant's interests.

Id. at 82. The Love court rejected the defendant's position that prejudice should be presumed when his attorney had previously represented the State in the same case. Id. at 78-79. The court explained that the circuit court's power to disqualify a defendant's attorney when there is an actual conflict of interest or serious potential for a conflict of interest protects the defendant's right to adequate representation and to a fair trial; that power protects, as well, the institutional interests in ensuring that criminal trials are conducted within the ethical standards of the profession, appear fair to all who observe them, and remain free from future attacks. Id. at 81-82 (citing State v. Miller, 160 Wis. 2d 646, 653, 467 N.W.2d 118 (1991)). However, the court explained:

In a post-conviction motion, the institutional factors are different. If a defendant has received a fair trial, the court has an institutional interest in protecting the finality of its judgment. Moreover, theoretical imperfections and potential problems ought not be treated more seriously than real deficiencies and real problems, for such skewed values would undermine public confidence in the administration of justice.

Love, 227 Wis. 2d at 82.

¶ 20. This court has applied the Love standard of actual conflict of interest to a defendant's postconviction motion for a new trial on the ground that the prosecutor had previously represented him in another criminal case. State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428. As in Love, the defendant in Kalk had not raised the issue earlier, and we concluded that the Love court's reasoning for requiring a showing of an actual conflict of interest was therefore applicable. Kalk, 234 Wis. 2d 98, ¶¶ 15-16. Consistent with Love, we stated that an actual conflict of interest occurs when an attorney's competing loyalties adversely affect the former client's interests. Kalk, 234 Wis. 2d 98, ¶ 16.

II. Disqualification Motion

¶ 21. We consider first the circuit court's denial of the disqualification motion. Medina's position is that the court erred in deciding that the motion was untimely and he therefore waived the right to assert that the district attorney should be disqualified. Medina's counsel's affidavit, filed with the postconviction motion, avers that Medina did not waive his objection in writing to the prosecutor's participation in this case, as required by SCR 20:1.9(a). However, it does not follow that a circuit court therefore lacks the authority to deny a motion for disqualification on the grounds of untimeliness, and we have already recognized that authority in the civil context. Batchelor, 213 Wis. 2d at 256-60. The question therefore is whether a court in a criminal proceeding has this authority. More specifically: may a circuit court deny a criminal defendant's motion to disqualify the prosecutor under the "substantial relationship" standard on the ground that it is untimely. Whether the circuit court may do so presents a question of law. See id. at 256-57 (implicitly treating as a question of law the issue whether a disqualification claim may be waived if untimely). We review questions of law de novo. See Kalk, 234 Wis. 2d 98, ¶ 13.

¶ 22. Tkacz does not answer this question because there was no issue concerning the timeliness of the disqualification motion in that case. However, Love, 227 Wis. 2d at 72-73, and Kalk, 234 Wis. 2d 98, ¶¶ 8-11, both refer to the importance of bringing a motion to disqualify so that the circuit court can address the potential conflict at the earliest stage possible. Indeed the court in Love, citing to Berg, 141 Wis. 2d 878, states that "Wisconsin case law clearly states that an attorney may be disqualified for a potential conflict of interest if the issue is raised in a timely manner." Love, 227 Wis. 2d at 77 n.8 (emphasis added). The later in the proceedings a disqualification motion is brought, the more waste there is of judicial resources.

¶ 23. From the defendant's viewpoint, the defendant will typically know that the prosecutor previously represented him or her. We can see no reason why, if the defendant knows that and believes the prior case is substantially related, he or she should not be expected to bring a motion to disqualify at the earliest reasonable opportunity. One of the reasons we decided in Batchelor to permit waiver is that we did not want to allow delay of disqualification motions for tactical reasons. 213 Wis. 2d at 257. This concern is equally applicable in criminal cases.

¶ 24. We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely. The circuit court properly exercises its discretion when it applies the correct legal standard to the relevant facts of record and reaches a reasonable result using a rational process. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999) (citations omitted). In the context of a motion to disqualify a prosecutor under the substantial relationship standard, a non-exclusive list of factors to consider in deciding if the motion is timely brought include: when the defendant knew who the prosecutor was and that the prosecutor had previously represented the defendant; whether and when the prosecutor realized he or she had previously represented the defendant; applicable time periods established in scheduling orders; at what stage in the proceeding the motion is brought; reasons why the motion was not brought sooner; prejudice to the State because of the timing of the motion if the motion is granted; and prejudice to the defendant if the motion is denied. See Batchelor, 213 Wis. 2d at 256-60.

¶ 25. Applying this standard here, we conclude the circuit court properly exercised its discretion in denying Medina's disqualification motion on the ground of untimeliness. Although defense counsel had just learned of the prior representation a few days earlier, the court could reasonably infer that Medina knew much earlier in this case who the district attorney was and knew he was the same person who represented Medina at a sentencing three years earlier. In the absence of any explanation why Medina did not bring this to the attention of his attorney earlier, the court could reasonably infer that Medina was raising it just before jury selection for purposes of delay. The court implicitly credited the district attorney's statement that he had not remembered the prior representation before defense counsel told him, which the court could properly do. The court also properly considered the scheduling orders it had entered and that the jury panel had been called. Finally, nothing presented to the circuit court indicated that there would be any prejudice to Medina in denying the motion: the district attorney could not remember anything from the prior representation and Medina presented little detail about the prior case. We recognize that, as we have described in paragraph 17, the substantial relationship standard inquires into the relationship between the two cases, and not into whether confidential information was actually given to the attorney and whether the attorney remembers that information. Nonetheless, the likelihood of an actual conflict of interest is an appropriate factor to take into account in deciding whether to deny as untimely a disqualification motion against a prosecutor based on the substantial relationship standard.

III. Postconviction Motion

¶ 26. In his postconviction motion for a new trial, Medina argued both that the district attorney should have been disqualified under the substantial relationship standard and that the district attorney had used information obtained in the prior representation against Medina at sentencing in this case. However, we understand Medina's position to be that, because he brought a disqualification before trial, he was entitled to a new trial if there was a substantial relationship between the prior case and this case, even if the district attorney had not obtained or used any information. His contention is that the circuit court erred because it did not apply the substantial relationship standard as we defined it in Tkacz — whether relevant confidential information could have been obtained in the prior representation — but instead considered whether the district attorney had actually obtained confidential information in the prior representation and used it against Medina in this case.

¶ 27. We agree with Medina that the circuit court in its decision essentially employed the Love/Kalk actual conflict of interest standard. The threshold inquiry is therefore whether the substantial relationship standard or the actual conflict of interest standard is applicable in determining whether Medina is entitled to a new trial. Whether the court used the proper legal standard presents a question of law, which we review de novo. Tkacz, 258 Wis. 2d 611, ¶ 8.

¶ 28. Medina relies on our statement in Tkacz that the substantial relationship standard applies when we analyze a disqualification motion brought "prior to trial." Id., ¶ 15. We used the phrase "prior to trial" to distinguish the facts before us in Tkacz from those in Love, where the motion claiming a conflict of interest was brought "after trial." Tkacz, 258 Wis. 2d 611, ¶¶ 10-11. Because in Tkacz there was no assertion that the disqualification motion was untimely, we simply described the disqualification motion as brought "before . .. trial," id., ¶ 3, and did not further discuss the timing. Instead, because the circuit court in Tkacz denied the disqualification motion based on its decision that there was no substantial relationship, we reviewed that decision to determine whether the circuit court had properly exercised its discretion. Tkacz does not answer the question presented here: when a disqualification motion based on the substantial relationship standard is denied on the ground of untimeliness, what standard applies to a postconviction motion claiming a prosecutor's conflict of interest because of prior representation?

¶ 29. Similar to Tkacz, Love uses the phrase "at trial," 227 Wis. 2d at 82, and Kalk uses the phrase "prior to or at trial," 234 Wis. 2d 98, ¶ 15, to distinguish the situation where a motion based on a claim of conflict of interest is brought for the first time after conviction. However, because in those two cases there was no prior motion at all, those phrases cannot be reasonably read as resolving the issue in this case. Nonetheless, the reasoning in Love for adopting the actual conflict of interest standard, which we followed in Kalk, is applicable here. Once a trial has occurred, the focus should be on "real deficiencies and real problems" rather than on "theoretical imperfections and potential problems." Love, 227 Wis. 2d at 82. Our reasoning in Tkacz for adopting the "substantial relationship" standard is also relevant here: the standard is aimed at potential conflicts of interest in order to ensure that an actual conflict of interest will not occur. Tkacz, 258 Wis. 2d 611, ¶ 15.

¶ 30. We conclude that where, as in this case, a disqualification motion against a prosecutor based on the substantial relationship standard is properly denied as untimely, the "actual conflict of interest" standard of Love and Kalk applies to a postconviction motion claiming a conflict of interest. In this situation the defendant had the opportunity to have the prosecutor disqualified based on the lower standard of a substantial relationship between the prior representation and the current case, but lost the opportunity because he or she did not make that claim in a timely manner. The trial then occurred. At the time of the postconviction motion, it makes little sense to apply for the first time (because the circuit court earlier properly denied the motion based on untimeliness and so did not apply the substantial relationship standard) a standard that protects against potential conflicts of interest when we can now tell whether an actual conflict of interest occurred. If there was no actual conflict of interest, then the potential conflict did not impair the defendant's right to a fair trial and the institutional interests of the finality of judgment support application of the actual conflict of interest standard. See Love, 227 Wis. 2d at 82.

¶ 31. Accordingly, in order to be entitled to a new trial, Medina must show by clear and convincing evidence that the district attorney had an actual conflict of interest, that is, that the district attorney had a competing loyalty that adversely affected Medina's interests. Kalk, 234 Wis. 2d 98, ¶ 16. The circuit court therefore did not err in not applying the substantial relationship standard.

¶ 32. We now turn to a review of the circuit court's decision denying Medina's postconviction motion, and we apply the actual conflict of interest standard we have identified in the preceding paragraph. In our review we accept the circuit court's findings of fact unless they are clearly erroneous, and we review de novo the legal issue of whether an actual conflict exists based on those facts. Kalk, 234 Wis. 2d 98, ¶ 13.

¶ 33. The circuit court here accepted the district attorney's testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record. There is no basis for disturbing these findings. Medina points to no other evidence that might arguably show his interests were adversely affected because the district attorney, having previously represented him at sentencing in the misdemeanor theft case in 2001, is now prosecuting him for these different charges of burglary. We conclude Medina has failed to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina's interests in this case. The circuit court therefore correctly denied his motion for a new trial.

¶ 34. Although we have resolved the issues on this appeal without the need to address the parties' dispute over the correct meaning of "substantial relationship" in Tkacz, we take up that topic now in order to clarify the language that is the subject of their dispute. Medina relies on our statement in Tkacz that two representations are substantially related" 'if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second.'" 258 Wis. 2d 611, ¶ 13 (citing Berg, 141 Wis. 2d at 886). This means, Medina argues, that in order to meet the substantial relationship standard, a party need not show that the lawyer actually obtained relevant confidential information in the prior case or that the lawyer did or might use any such information.

¶ 35. The State, on the other hand, focuses on our analysis of the circuit court's ruling in Tkacz:

The trial court concluded that during [the prosecutor's] limited representation of Tkacz no significant meetings took place, the two did not exchange any meaningful confidential information, and [the prosecutor] received no information from Tkacz concerning any drug connections. The court also accepted [the prosecutor's] account that the reference he made to Arkansas during the bail hearing was based upon information the police had provided him and that any information he may have had about Tkacz's connection to Texas and Arkansas was already independently known to the police. Finally, the court concluded that "[n]othing that [the prosecutor] did learn or could have learned back in 1989 had a substantial relationship to the charges in this case."

Tkacz, 258 Wis. 2d 611, ¶ 17.

¶ 36. We then concluded that, based on these findings, "the trial court's determination that no substantial relationship existed was firmly grounded in a reasonable basis, and furthermore, the court's legal conclusion that no conflict of interest existed was correct." Id. In the State's view, because our summary of the court's findings included findings that no confidential information was communicated, this is part of the substantial relationship standard.

¶ 37. While we see why there may be some confusion based on our summary in Tkacz of the circuit court's findings, those findings do not define the substantial relationship standard. Medina is correct that under this standard a substantial relationship may exist even if there is no evidence that confidential information relevant to the later case was communicated to the attorney. We clearly say this in Tkacz when we state that the standard is whether " 'the lawyer could have obtained [relevant] confidential information.' " Id., ¶ 13 (citation omitted, emphasis added). And our more thorough discussion of the standard in Berg makes this even clearer: the point of the substantial relationship standard is to prevent the need for an attorney's former client to have to disclose confidential information in order to have the attorney disqualified from representing an adverse party in the present case. See Berg, 141 Wis. 2d at 889-91 and n.5. That is why the existence of a substantial relationship depends on whether "the factual contexts of the two representations are similar or related." Id. at 889 (citations omitted). By comparing the factual contexts of the two cases, we can determine whether there could have been confidential disclosures in the former case that are relevant to the later, without inquiring into the actual disclosures.

CONCLUSION

¶ 38. The circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the "substantial relationship" standard on the ground that the motion was untimely. The circuit court here properly exercised its discretion in denying Medina's motion, brought on the morning of jury selection, on the ground that it was untimely. Because the circuit court correctly denied the motion, when Medina moved after sentencing for a new trial on the ground that the district attorney had a conflict of interest because he previously represented Medina in another criminal case, Medina had to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina's interests. Based on the facts found by the circuit court, we conclude as a matter of law that Medina did not establish an adverse affect on his interests. Accordingly, the circuit court correctly concluded Medina was not entitled to a new trial.

By the Court. — Judgment and order affirmed.

LUNDSTEN, EJ.

¶ 39. {concurring). I join all parts of the majority opinion. Nonetheless, I write separately because, in my view, we should have affirmed Medina's conviction without deciding whether the circuit court properly exercised its discretion in denying Medina's pretrial motion to remove the prosecutor.

¶ 40. As lucidly explained by the majority, the purpose of a pretrial determination of the need to remove an attorney is to identify and eliminate the risk that a possible conflict of interest will actually affect a proceeding such as a trial. At the pretrial stage in the proceedings, it makes sense to eliminate this risk using the defendant-friendly standard we applied in State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, and Berg v. Marine Trust Co., 141 Wis. 2d 878, 416 N.W.2d 643 (Ct. App. 1987). But, as the majority also explains, because the equities are different, after trial we apply a different standard. When we assess a claimed conflict of interest after trial, we look to see if the alleged conflict had an actual effect on the trial. For the reasons below, I conclude that when a defendant is convicted after a fair and error-free trial, it makes no sense to reverse and order a new trial, regardless whether the circuit court properly denied a defendant's pretrial motion to remove an attorney because of a potential conflict.

¶ 41. The majority cogently describes the pretrial "substantial relationship" standard as follows: "[I]t is irrelevant if the attorney actually obtained confidential information in the first representation or used it against the former client because 'substantially related' means that the attorney 'could have obtained confidential information in the first representation that would have been relevant in the second.'" Majority, ¶ 17 (quoting Berg, 141 Wis. 2d at 886). The majority further explains: "In essence, the application of the substantial relationship standard ... insures that 'the ensuing criminal [or civil] trial will avoid any potential impropriety' and provides 'the opportunity to head off the conflict before it actually happens.'" Majority, ¶ 17 (quoting Tkacz, 258 Wis. 2d 611, ¶ 15).

¶ 42. The majority then contrasts the pretrial standard with the post-trial standard: "[A] different analysis applies when a criminal defendant claims for the first time in a postconviction motion that either the prosecutor or the defense counsel had a conflict of interest because of prior representation." Majority, ¶ 19. The post-trial standard is different, the majority explains, because of the reasons set forth in State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999):

In a post-conviction motion, the institutional factors are different. If a defendant has received a fair trial, the court has an institutional interest in protecting the finality of its judgment. Moreover, theoretical imperfections and potential problems ought not be treated more seriously than real deficiencies and real problems, for such skewed values would undermine public confidence in the administration of justice.

Id. at 82.

¶ 43. As I see it, the rationale for the Love post-trial standard applies regardless of the propriety of a pretrial ruling denying a removal motion. I liken this situation to the rule we apply when an error-free trial follows an erroneous bindover decision. In State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991), the court held: "[A] conviction resulting from a fair and error-less trial in effect cures any error at the preliminary hearing... [and] a defendant who claims error occurred at his preliminary hearing may only obtain relief before trial" by seeking leave to appeal the bindover decision. Id. at 628. The Webb court reasoned that, after an error-free trial, reversing a conviction and returning the parties to the preliminary hearing stage serves no sensible purpose. Id. at 628-31.

¶ 44. Requiring a showing of probable cause at a preliminary hearing serves to prevent defendants from enduring needless trials and avoids the accompanying waste of judicial resources. If the State is unable to present probable cause, what reason is there to think it can prove guilt beyond a reasonable doubt? Thus, a preliminary hearing serves the same sort of preventive function as the pretrial Tkacz/Berg "substantial relationship" standard, namely, the avoidance of trials that might not or cannot produce proper convictions. And, in both situations, reversing a conviction after a fair and error-free trial defies common sense.

¶ 45. Common sense tells me that the rule I would apply to Medina is not prone to abuse. I see no reason why circuit courts cannot be trusted to liberally grant timely and meritorious removal motions under the Tkacz/Berg "substantial relationship" standard. The standard is intentionally geared to err on the side of safety, requiring removal of attorneys even when the possibility of a real problem is remote, to say the least. And judges have a strong incentive to faithfully apply the rule because granting a timely removal motion has little or no effect on the court, and it avoids the possibility of reversal and the need for a new trial.

¶ 46. I acknowledge that there are differences between the Webb situation and the conflict of interest issue we address today. If I were writing a majority opinion, I would explain why these differences do not undercut my reliance on Webb. I note also that, if anything, the rule I would apply here is less susceptible to abuse than the Webb preliminary hearing rule. Again, if I were writing a majority opinion, I would explain why I believe this to be true.

¶ 47. Accordingly, I join all parts of the majority decision. I would, however, decline to decide whether the circuit court properly denied Medina's removal motion, and would affirm on the basis that Medina is not entitled to reversal under the post-trial Love standard.

       All other references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       In response to the court's questions, Medina's counsel asserted that the constitutional basis for his motion was the right to due process; he apparently agreed that it was not based on the Sixth Amendment right to counsel. However, as we discuss later, the standard for disqualification adopted in State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, is based on SCR 20:1.9, Wisconsin's Rules of Professional Conduct for Attorneys. Medina did not provide constitutional case law authority in the circuit court, and he does not provide such authority on appeal.

       We state in Tkacz, 258 Wis. 2d 611, ¶ 15, that "the 'substantial relationship' standard is the proper standard for analyzing whether a conflict of interest exists... where the defendant raises the issue prior to trial." (Emphasis added.) However, we also describe this standard as "avoid[ing] any potential impropriety" and "head[ing] off the conflict before it actually happens," id. (citations omitted), recognizing that the "substantial relationship" standard is not focused on whether an actual conflict of interest has already occurred. See ¶ 17 above. Thus, in the context of a disqualification motion, the "substantial relationship" standard is more accurately described as determining whether there is a potential for an adverse affect on the former client's interests, rather than as determining whether a conflict of interest actually exists.

       At the time Berg v. Marine Trust Co., 141 Wis. 2d 878, 885-86, 416 N.W.2d 643 (Ct. App. 1987), was decided, the relevant provisions in SCR ch. 20 were SCR 20.21 and SCR 20.48, neither of which expressly referred to the "substantial relationship" standard. However, as we explained in Berg, the substantial relationship standard had been held by federal courts to " 'embodty] the substance'" of the identical two provisions of the American Bar Association Code of Professional Responsibility. Id.

       "Serial representation occurs when an attorney represents one party in a case, then switches sides to represent the other party in the same proceeding or in an unrelated case." State v. Love, 227 Wis. 2d 60, 73, 594 N.W.2d 806 (1999). This contrasts with a "multiple representation" situation, where the conflict or potential conflict of interest arises out of one attorney representing more than one defendant, as in State v. Kaye, 106 Wis. 2d 1, 7, 315 N.W.2d 337 (1982), discussed in Love, 227 Wis. 2d at 68-70. Where the attorney presently representing the defendant has the conflict or potential conflict of interest, either because of prior prosecution of the defendant or because of multiple representation, the defendant's Sixth Amendment right to effective counsel is implicated. See Love, 227 Wis. 2d at 68. The Sixth Amendment is not implicated, of course, when it is the prosecutor that has the conflict or potential conflict of interest because of prior representation of the defendant, as in the current case.

       In State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428, we did not refer to the alternative ground for an actual conflict of interest in Love: a knowing failure by defense counsel to disclose to the defendant or the court before trial that the attorney previously prosecuted the defendant. Love, 227 Wis. 2d at 82. It is not clear from our Kalk opinion whether we did not refer to this ground because we viewed it as applying only where the claim of conflict of interest is made against defense counsel; or because in Kalk the district attorney did advise the defendant's lawyer prior to trial that he had previously represented the defendant, although neither party brought this to circuit court's attention at that time. Kalk, 234 Wis. 2d 98, ¶ 4.

       We limit our inquiry to a motion to disqualify the prosecutor. As noted in footnote 4, a defendant's Sixth Amendment right to effective assistance of counsel is implicated when disqualification of defense counsel is at issue, and the circuit court has obligations designed to protect that right. See State v. Miller, 160 Wis. 2d 646, 658-59, 467 N.W.2d 118 (1991) (in a multiple representation case, the circuit court properly approved a disqualification of an attorney over the objection of the defendant because of a serious potential for conflict of interest). See also State v. Cobbs, 221 Wis. 2d 101, 105, 584 N.W.2d 709 (Ct. App. 1998) (discussing colloquy necessary for a defendant's valid waiver of his or her attorney's actual or serious potential conflict of interest).

       Whether disqualification of an attorney is required in a particular case involves an exercise of the circuit court's discretion, and our review is limited accordingly. Tkacz, 258 Wis. 2d 611,¶ 8; Berg, 141 Wis. 2d at 887.

       As we noted in footnote 5, in Kalk we did not refer to the alternative ground for an actual conflict of interest identified in Love: defense counsel's knowing failure to disclose to the defendant or the court before trial that counsel previously prosecuted the defendant. Love, 227 Wis. 2d at 82. Whether that is a ground for a new trial even if there is no adverse affect on the defendant's interests, when the conflict of interest claim is asserted against the prosecutor rather than defense counsel, is an issue we need not decide in this case. If we assume without deciding that this alternative ground does apply in this case, it does not change the outcome: there is no dispute here that the district attorney did not remember the prior representation until defense counsel brought it to his attention.

       The relevant facts in Tkacz are as follows. Tkacz was convicted by a jury of first-degree reckless homicide and conspiracy to deliver heroin as a repeater. Tkacz, 258 Wis. 2d 611, ¶ 2. The homicide conviction was reversed on appeal. Id. Before the new trial on that charge, Tkacz moved to disqualify the prosecutor, asserting that the prosecutor had represented him in a civil forfeiture matter six years before the criminal complaint was filed. Id., ¶ 3. Tkacz testified at the motion hearing that, when the prosecutor was representing him, he disclosed to the prosecutor confidential information concerning drug connections he had in Texas and Arkansas. Id. Tkacz contended that the prosecutor had used this information at the bail hearing before the first trial, when the prosecutor had argued that Tkacz was a flight risk because he "has on occasion had a prior address in Arkansas .... [and] ha[s] been known to travel.. .." Id. The prosecutor testified that he did not remember discussing the specifics of the prior case with Tkacz, did not remember Tkacz giving him any confidential information, and most likely had some phone contact and minimal face-to-face contact with Tkacz during the prior representation. Id., ¶ 4. The prosecutor also testified that before the bail hearing, he discussed Tkacz's out-of-state contacts with police officers and they gave him the information about Tkacz's Arkansas contacts. Id.

       I point out that the majority does not address the topic of my concurrence because the State did not brief the issue and, of course, neither did Medina. I readily admit that we should generally avoid deciding cases based on theories not argued by the parties. Still, it is not uncommon for us to do so, and I see no reason why we should not in this case.