text:
    State of Wisconsin, Plaintiff-Respondent, v. Jennifer E. Francis, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1360-CR.

      Submitted on briefs April 14, 2005.

      Decided June 15, 2005.

    2005 WI App 161
    (Also reported in 701 N.W.2d 632.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Hans E Koesser of Koesser Law Offices, S.C. of Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 8-25-05.

   BROWN, J.

¶ 1. Jennifer E. Francis appeals from a judgment of conviction and an order denying her motion for postconviction relief. The basis for the conviction arose out of an attempt to commit "suicide by cop" by taking hostages at a Kenosha tavern. Francis initially entered joined pleas of not guilty and not guilty by reason of mental disease or defect, i.e., insanity. She later accepted a plea bargain in which she pled guilty to several counts and no contest to another. Francis offers a host of reasons why we should permit her to withdraw these subsequent pleas, but the only argument we deem to be of any arguable merit is her contention that the circuit court erred when it accepted her pleas of guilty and no contest without conducting a personal colloquy to ensure that she waived her NGI plea knowingly, voluntarily, and intelligently. We reject this argument. Courts engage in personal colloquies in order to protect defendants against violations of their fundamental constitutional rights. Neither the federal constitution nor our state constitution confers a right to an insanity defense or plea. The court therefore had no obligation to personally address Francis with respect to the withdrawal of her NGI plea.

¶ 2. On July 14, 2001, Francis, after drinking heavily, obtained a gun from a recent boyfriend's apartment, intending to commit suicide. Fearing she would not succeed in killing herself, she entered Rickie's Greyhound Tavern, intending to cause an altercation that would induce police officers to fatally shoot her. After several more drinks, she started an argument by removing batteries from a patron's cell phone and a tavern phone and refusing to return them. Francis pulled the pistol out of her purse and began brandishing it at other guests and employees, threatening to kill them. She also locked the doors of the tavern and demanded that the other patrons hand over their cell phones and batteries.

¶ 3. One man eventually managed to strike Francis from behind with a pool cue. He and several other patrons wrestled her to the ground, overpowered her, and wrested the gun away. They summoned the police.

¶ 4. Within the next thirteen days, the State committed Francis pursuant to Wxs. Stat. ch. 51 (2003-04). She spent two weeks at St. Luke's Hospital and then was discharged to the Kenosha County Jail.

¶ 5. The circuit court bound Francis over for trial at the conclusion of an August 7 preliminary hearing. The State filed a twenty-four-count information. These counts included one count of disorderly conduct using a dangerous weapon, ten counts of intentionally aiming and pointing a firearm at a person, ten counts of first-degree recklessly endangering safety with a dangerous weapon, two counts of attempted armed robbery, and one count of battery.

¶ 6. At the arraignment on September 14, Francis entered pleas of not guilty and not guilty by reason of mental disease or defect. The court also ordered a mental examination of Francis. The order asked the examining doctor to explore Francis' mental responsibility at the time of the July 14 incident.

¶ 7. A November 21 hearing addressed certain of Francis' mental health issues. Francis had been moved to the county jail by this time, and counsel complained that the jail doctor had taken her off of the medicine her personal doctor had prescribed and expressed concern that the jail staffs practice of isolating her when she expressed suicidal urges or feelings of depression was not adequately addressing her treatment needs. Francis' counsel also acknowledged receipt of the examiner's report and requested an opportunity to review and discuss it with Francis before deciding whether to request another evaluation.

¶ 8. The report concluded that Francis had difficulties resulting from depression, alcohol dependence and intoxication, and possibly another disorder at the time she committed the offenses. The report also concluded, however, that these disorders did not impair her psychological functioning to such a degree as to diminish her mental responsibility for her acts. The examiner opined that Francis did not lack capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law. He stated, "It is my opinion that her psychopathology did not relate to the alleged crime in a manner that would satisfy a special plea."

¶ 9. Although not specifically asked by the court to address Francis' current mental status or competency to proceed, the examining doctor also made several observations relevant to that issue. He first observed:

At the beginning of my interview, I explained the purpose of the evaluation to Ms. Francis. I described the issue of exculpatory insanity, a bifurcated trial process, where information obtained from her would be sent, and what may happen to her depending upon the court's adjudication of this issue. She said that she understood those comments and, in fact, she had no evident difficulty understanding them. She said that she had spoken to her attorney about the evaluation and my comments were consistent with her expectations.

The examiner also remarked that Francis was "alert, responsive and cooperative with all aspects of the interview procedures" and "was quite conversational and, thus, an easy source of relevant information." Finally, the report noted, "Throughout the interview, her expressed thoughts were consistently relevant and coherent. No delusional ideation was elicited."

¶ 10. The case had been scheduled for a jury trial on January 28, 2002. However, the State offered Francis a plea bargain. In return for a plea of no contest to one count of attempted armed robbery and a plea of guilty to six of the first-degree reckless endangerment charges, the State would reduce those offenses from first-degree to second-degree reckless endangerment. It would also reduce the remaining four reckless endangerment charges from first to second degree. They were to be read in for sentencing purposes and dismissed. The second count of attempted armed robbery was also to be dismissed and read in. Moreover, the State would dismiss outright the remaining counts, which comprised the disorderly conduct, battery, and the ten aiming and pointing a firearm counts.

¶ 11. Counsel discussed the advantages and disadvantages of a plea bargain versus a trial and encouraged Francis to accept the State's offer. This deal reduced Francis' prison-time exposure by several decades. Moreover, counsel believed the doctor's report revealed a lack of support for a viable NGI defense. Francis accepted the deal and entered her new pleas of no contest and guilty on January 28.

¶ 12. On March 12, 2004, Francis filed her motion for postconviction relief. She alleged several grounds on which the circuit court should permit her to withdraw her subsequent pleas. These included the following: (1) the circuit court erred when it accepted her pleas of guilty and no contest without ascertaining via a personal colloquy that Francis intended to abandon her earlier NGI plea; (2) trial counsel rendered ineffective assistance by not requesting a competency evaluation; (3) her pleas were not knowingly, intelligently, and voluntarily entered because trial counsel coerced her to enter them; (4) her pleas were not knowing, intelligent, and voluntary because neither the court nor trial counsel properly explained to her the essential elements of each charge; and (5) Francis should be allowed to withdraw her pleas because she asked trial counsel to do so but he refused and told her she had relinquished all of her rights.

¶ 13. The circuit court held a postconviction hearing on April 29. The court denied her motion in all respects. Francis appeals on all grounds.

¶ 14. We will address the NGI argument first, given that this is the lone issue with arguable merit. Whether the courts must engage defendants in a personal colloquy before allowing them to abandon an NGI plea requires us to determine the applicable legal rules. This task presents a question of law. See Steven V. v. Kelley H., 2003 WI App 110, ¶ 29, 263 Wis. 2d 241, 663 N.W.2d 817 (determining what legal rules to apply involves a question of law), aff'd on other grounds, 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856. We have not encountered this precise issue in Wisconsin before, but we find three lines of cases helpful in resolving this issue of first impression.

¶ 15. The first line of cases addresses the rationale behind personal colloquies; these cases recognize the important role such colloquies play in protecting fundamental constitutional rights. The United States Supreme Court has recognized the importance of personal colloquies since at least 1969 when it decided Boykin v. Alabama, 395 U.S. 238 (1969). In Boykin, the Court reversed the defendant's conviction because the record did not affirmatively demonstrate that he voluntarily and intelligently entered his pleas of guilty in five cases of robbery. Id. at 240, 242, 244. The Court observed, "So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Id. at 239. Later in the opinion, it proclaimed:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he [or she] has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he [or she] leaves a record adequate for any review that may be later sought.

Id. at 243-44. See also id. at 247-48 (Harlan, J., dissenting) (lamenting that the majority was effectively holding "that the prophylactic procedures of [Rule 11 of the Federal Rules of Criminal Procedure] are substantially applicable to the States as a matter of federal constitutional due process" and observing that Rule 11 required "explicit inquiry into whether [the plea] was knowingly and understanding^ made"). The Court obviously intended to mandate on-the-record colloquies.

¶ 16. In stating the rationale for the colloquy requirement, the Court observed that a guilty plea involves the waiver of several important constitutional rights. "First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment .... Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record." Boykin, 395 U.S. at 243 (citations omitted). It further explained, "Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." Id. at 242-43. The Court stated that due process requires an intentional relinquishment or abandonment of the three constitutional rights in order to be valid. Id. at 243 & n.5.

¶ 17. Where Wisconsin courts have required on-the-record personal colloquies as a prerequisite for waiving certain rights, they also have cited the fundamental character of the particular constitutional rights at stake. In State v. Weed, 2003 WI 85, ¶ 2, 263 Wis. 2d 434, 666 N.W.2d 485, our supreme court concluded that a defendant's right to testify in his or her own defense constituted a fundamental constitutional right that required the protection of an on-the-record colloquy to ensure a valid waiver. Similarly, in State v. Anderson, 2002 WI 7, ¶ 23, 249 Wis. 2d 586, 638 N.W.2d 301, the court concluded that "without a personal colloquy, we are unable to determine that Anderson's jury trial waiver is knowing, intelligent, and voluntary. The right to a jury trial is a fundamental right." (Footnote omitted.)

¶ 18. We single out these fundamental rights for special protection because they are deeply embedded in our constitutional fabric and "fundamental to the concept of fair and impartial decision making." See N.E. v. DHSS, 122 Wis. 2d 198, 205, 361 N.W.2d 693 (1985) (citation omitted). In N.E., our supreme court averred:

In considering the issue of waiver of rights, "[t]his court and other courts have characterized certain rights as fundamental and have held that the law takes particular pains to ensure that the decision to waive those rights is that of the defendant." Fundamental rights are those very basic constitutional rights which are ". . fundamental to the concept of fair and impartial decision making." The trial court has a "serious and weighty responsibility" to determine on the record, "whether there is an intelligent and competent waiver by the accused" when a defendant attempts to waive fundamental rights.

Id. at 205-06 (citations omitted); see also Weed, 263 Wis. 2d 434, ¶ 37 (noting that our courts did not mandate the special protection of a personal on-the-record colloquy for waivers of the right to testify until the United States Supreme Court in Rock v. Arkansas, 483 U.S. 44 (1987), deemed it a fundamental right).

¶ 19. The second line of cases makes abundantly clear that the right to an NGI plea simply does not qualify as a fundamental constitutional right. As we have already commented, Wisconsin has not dealt with this issue before, but we will not ignore the weight of authority from other jurisdictions. Florida, Idaho, and Montana have specifically rejected the notion that any federal constitutional right to an NGI plea exists. See Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970); State v. Korell, 690 P.2d 992, 999 (Mont. 1984); State v. Searcy, 798 P.2d 914, 916 (Idaho 1990). Korell reasoned in part, "The United States Supreme Court has never held that there is a constitutional right to plea an insanity defense." Korell, 690 P.2d at 999.

¶ 20. Nevada struck down a statute abolishing NGI pleas in Finger v. State, 27 P.3d 66 (Nev. 2001), but even that decision is not particularly helpful to Francis. Finger essentially equated insanity with a lack of mens rea and held that the latter requires that the defendant appreciates the wrongfulness of his or her conduct. Id. at 82-84. Thus, it held that where mens rea constitutes an element of the crime, insanity must be a complete defense. Id. at 84. In doing so, however, it made clear that the states had no obligation to adopt any particular procedural protections.

While we conclude that neither the United States nor the Nevada Constitutions require that legal insanity be procedurally raised as an affirmative defense or by way of a plea of "not guilty by reason of insanity," both Constitutions prohibit an individual from being convicted of a criminal offense without possessing the requisite criminal intent to commit the crime.

Id. at 68. The court struck down the abolition of NGI pleas not because it concluded NGI pleas were constitutionally required but because it deemed the provision eliminating them to be inextricably intertwined with other provisions aimed at the utter abolition of insanity as an excuse for a crime. Id. at 84.

¶ 21. We also do not deem an NGI plea a constitutional right based on our state constitution. The source of a defendant's right to plead NGI appears to be purely statutory. See Wis. Stat. § 971.06. Francis cites no constitutional protection under which the right to an insanity plea would fall. Moreover, we note the following language in N.E.:

In contrast to those rights which are so fundamental that waiver must be done personally are rights which may be waived by a lawyer on a defendant's behalf. The decisions not to cross-examine witnesses, not to challenge evidence, and not to present evidence are generally viewed as tactical decisions which may be made by the lawyer.

N.E., 122 Wis. 2d at 206 (citations and footnote omitted; emphasis added). A defendant who withdraws an NGI plea essentially chooses to forgo an NGI defense. Deciding not to present a particular defense is basically a choice "not to present evidence" in support of that defense. Thus, an NGI plea appears to fall into the category of rights that are not fundamental.

¶ 22. Taken together, these first two sets of cases suffice to dispose of Francis' contention that the court was required to conduct an on-the-record colloquy with respect to her desire to abandon her NGI plea. They make clear that only fundamental constitutional rights warrant this special protection and that an NGI plea falls outside the realm of fundamental rights. Nevertheless, a third group of cases bolsters our conclusion that Francis was not entitled to a personal colloquy. These cases have specifically considered when a court must personally address a defendant to ensure a knowing, voluntary, and understanding waiver of an NGI plea.

¶ 23. The following summary distills what, from these cases, we ascertain to be the prevailing rules. First, defendants can withdraw their NGI pleas through counsel rather than personally. In deciding whether to withdraw a plea of NGI, counsel has no right to act contrary to the defendant's expressed wishes, as the decision ultimately belongs to the defendant. See People v. Blye, 43 Cal. Rptr. 231, 234-35 (Ct. App. 1965); State v. Tenace, 700 N.E.2d 899, 906 (Ohio Ct. App. 1997); State v. Byrge, 225 Wis. 2d 702, 727, 594 N.W.2d 388 (Ct. App. 1999), aff'd, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. In the absence of an objection, however, counsel acts on the defendant's behalf when counsel withdraws the defendant's NGI plea and may exercise professional discretion in choosing whether or not to do so. See People v. Gaines, 375 P.2d 296, 298-99 (Cal. 1962), overruled on other grounds by People v. Morse, 388 P.2d 33 (Cal. 1964); Blye, 43 Cal. Rptr. at 233-34; see also Tenace, 700 N.E.2d at 904-06, 908 (reversing judgment of conviction because defendant objected on the record); People v. Baker, 58 Cal. Rptr. 691, 694 (Ct. App. 1967) (objection must be affirmative; the defendant cannot idly stand by and later claim that counsel acted improperly).

¶ 24. In accepting counsel's withdrawal of an NGI plea, the circuit court need not personally address the defendant to ascertain his or her assent. See generally Baker, 58 Cal. Rptr. 691 (no colloquy occurred). In People v. Bloom, 774 P.2d 698, 709 (Cal. 1989), the California Supreme Court stated:

[N]o recitals of constitutional rights need be given "where there is no doubt of a defendant's sanity in the mind of the trial court and the reports of the examining psychiatrists unanimously indicate that such defendant was sane at the time of the offense. Free withdrawal of the insanity plea under such circumstances should be permitted as it has been in the past."

(Citations omitted); see also People v. Guerra, 708 P.2d 1252, 1255-56 (Cal. 1985); People v. Redmond, 94 Cal. Rptr. 543, 548-49 (Ct. App. 1971).

¶ 25. Moreover, some courts even recognize implicit withdrawals of NGI pleas, i.e., nobody, including defense counsel, formally withdraws the plea. The Ohio courts have held that a validly entered guilty plea automatically waives any insanity defense because such a plea amounts to an implied admission of sanity and has the same effect as an adjudication of guilt following a trial. State v. McQueeney, 774 N.E.2d 1228, 1232-33 (Ohio Ct. App. 2002); State v. Fore, 248 N.E.2d 633, 636-37 (Ohio Ct. App. 1969).

"A plea of guilty by one who is competent, and has a full understanding and appreciation of the consequences of entering the plea, precludes any defense whatever to the crime." By pleading guilty, the accused acknowledges full responsibility for all legal consequences of guilt and consents to whatever judgment and sentence the court may legally impose.
A valid guilty plea entered by a defendant is an "implied admission of sanity." Thus, when a defendant enters a plea of not guilty by reason of insanity, and then later enters a plea of guilty without formally withdrawing the not guilty by reason of insanity plea, the defendant has waived any argument pertaining to the insanity defense.

McQueeney, 774 N.E.2d at 1232-33 (citations omitted); see also Fore, 248 N.E.2d 636-37 (cited in McQueeney). Obviously when the courts recognize implicit withdrawals of pleas, no express colloquy has occurred in which the defendant affirmatively professes his or her desire to abandon an NGI defense.

¶ 26. Based also on this third set of cases, Francis had no right to insist on a personal colloquy as a prerequisite to a valid plea withdrawal. First, because her subsequent plea of guilty is fundamentally inconsistent with an NGI defense, she implicitly withdrew the NGI plea by her own act. So long as the latter plea was not otherwise deficient — and we explain below why it was not — she has no valid complaint.

¶ 27. Second, at the time Francis entered her subsequent pleas, the court had no reason to doubt her sanity either at that time or when she committed the offenses. The only doctor's report available clearly opined that she did not lack the mental capacity to commit the crimes charged and, moreover, demonstrated a rational comprehension of the proceedings at the time of the evaluation. This observation is consistent with counsel's testimony and the court's own observations. Counsel testified at the postconviction hearing that although he had concerns that county personnel were not adequately treating Francis' depression, he never had any reason to doubt that she understood the proceedings. She appeared upset at the beginning of their interviews, but "[o]nce she was calmed down she seemed very rational." Moreover, at the time the court accepted the guilty and no contest pleas, Francis answered affirmatively in response to the court's inquiries as to whether she understood the various rights she was giving up.

¶ 28. We now briefly address Francis' various other contentions. First, Francis complains that her counsel performed ineffectively when he failed to request a competency evaluation. The circuit court found that there was no reason to doubt Francis' competency. We will not upset the circuit court's factual findings in the absence of clear error. State v. Benoit, 229 Wis. 2d 630, 641, 600 N.W.2d 193 (Ct. App. 1999). When the evidence of record supports more than one plausible inference, the fact finder does not clearly err when it chooses between them, and we must accept the court's inference even if we would have made a different choice. State v. Poellinger, 153 Wis. 2d 493, 506-07, 451 N.W.2d 752 (1990).

¶ 29. The circuit court relied on credible evidence when it determined that competency was not an issue. It accepted the examiner's opinion that Francis understood the proceedings, the charges, and who the relevant parties were. It also accepted counsel's testimony that he never doubted her competency. We do not find this evidence so incredible that a reasonable fact finder could not rely on it. See id. (trier of fact not to rely on evidence that is incredible as a matter of law).

¶ 30. Francis next contends that counsel coerced her into the plea and that it was not voluntary, knowing, and understanding. Again, the court implicitly rejected Francis' testimony. It found instead that she made a tactical decision on the advice of counsel to plead based on her lack of a viable defense to a majority of the charges and the fact that the plea agreement reduced her sentencing exposure. Credible evidence, such as the examiner's report and counsel's testimony about Francis' reduced exposure, amply supports this inference. We discern no clear error.

¶ 31. Francis' fourth and fifth contentions focus on her alleged lack of understanding of the charges against her. She claims that she did not understand the nature of the reckless endangerment and attempted armed robbery charges because neither counsel nor the court discussed all of the essential elements with her. The law requires the circuit court to personally address the defendant to ascertain that he or she understood the nature of the offenses charged. Wis. Stat. § 971.08; State v. Bangert, 131 Wis. 2d 246, 255, 266-72, 389 N.W.2d 12 (1986). The court must satisfy itself that the defendant grasps the essential elements of the crimes. Bangert, 131 Wis. 2d at 267-68; State v. McKee, 212 Wis. 2d 488, 491-93, 569 N.W.2d 93 (Ct. App. 1997). Even if the defendant makes a prima facie showing that the plea hearing was deficient, however, our law does not mandate withdrawal of the plea so long as the State offers clear and convincing evidence at the postconviction hearing that the defendant did in fact enter his or her pleas knowingly, voluntarily, and intelligently. See Bangert, 131 Wis. 2d at 274-76 (majority), 298-99 (Heffernan, C.J., concurring) (noting, "The majority would allow for a post hoc cure of a deficient plea hearing by admitting evidence at the postconviction hearing.").

¶ 32. We determine that even if Francis could show some deficiency in the plea proceedings, the combination of the plea colloquy, the plea questionnaire, and other evidence at the postconviction proceeding demonstrates that Francis voluntarily, knowingly, and intelligently entered her pleas. We first address the attempted armed robbery charge. Counsel testified that he discussed the intent element with Francis three or four times and that she professed her innocence to that crime because her intent was to commit suicide. Francis could not possibly have thought that her intention to commit "suicide by cop" prevented a finding of guilt unless she did understand that intent to steal required intent to permanently deprive the individuals who owned the cell phones and batteries of their property. The court accepted that counsel explained the elements of the offense to Francis. In doing so, it obviously deemed counsel's representation that he did discuss this element with Francis more credible than Francis' assertion to the contrary.

¶ 33. The record also contains credible evidence to support Francis' knowledge of the other elements. Francis claims she did not understand the following elements: (1) intent to take and carry away a cell phone; (2) from the presence of the owner; (3) without the owner's consent; and (4) using force or threat of imminent force. The plea form indicates that she threatened to use deadly force with a firearm in order to preclude her victim's resistance to the theft. The latter three elements are implicit in this description. Moreover, during the plea colloquy, in which the court cited the specific conduct to which this description applied, the court specifically characterized the use of force as imminent. Finally, immediately before Francis entered her plea and the court conducted the personal colloquy, the court described the allegations in the attempted armed robbery count. The court's description indicated that the defendant attempted to take property from the victim's presence, had the intent to steal, used a threat of imminent force, and that she did so to compel the victim's acquiescence to the taking and carrying away of property, thus touching upon all elements of the crime.

¶ 34. Francis also claims she did not know the elements of a reckless endangerment offense. Counsel testified that he explained to her what it meant to be reckless and that he was certain he "went over what the crime consisted of and compared that to her conduct." We do not deem counsel’s testimony inherently unreliable, such that a reasonable court could not accept it as true.

¶ 35. Finally, Francis asserts that although she asked counsel to withdraw her plea prior to sentencing, he refused to do so. Counsel testified that he did not recall Francis ever asking him to do so. The circuit court reasonably inferred that counsel lacked a recollection of this request because Francis had never made it. Again, Francis simply wants to retry factual issues on appeal.

¶ 36. We affirm the denial of postconviction relief. The majority of Francis' contentions simply lack merit. We also reject her argument that the court had an obligation to personally address her with respect to the abandonment of her NGI plea before accepting changed pleas of guilty and no contest. We do not require personal colloquies where no fundamental constitutional right is at stake. An NGI plea simply does not rise to that level.

By the Court. — Judgment and order affirmed.

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

       We note that although Boykin v. Alabama, 395 U.S. 238 (1969), never specifically mentioned the impartiality consideration, the three rights the Court singled out as important clearly had this character.

       Moreover, four states, namely, Montana, Idaho, Kansas, and Utah, have legislatively abolished the very basis of an NGI plea, namely insanity as an affirmative defense. See State v. Bethel, 66 P.3d 840, 844-45 (Kan. 2003), cert. denied, 540 U.S. 1006 (2003); State v. Korell, 690 P.2d 992, 996-97 (Mont. 1984); State v. Herrera, 895 P.2d 359, 361 (Utah 1995); State v. Searcy,
        798 P.2d 914, 915, 917 (Idaho 1990). Instead, these states allow evidence of mental disease or defect solely for the purpose of rebutting the mens rea element of a crime. See Korell, 690 P.2d at 996-1000; Searcy, 798 P.2d at 915, 917-18; Bethel, 66 P.3d at 841, 844-45; Herrera, 895 P.2d at 361-64. The supreme courts of all four states have upheld those statutes against constitutional challenges. See generally Bethel, 66 P.3d 840; Korell, 690 P.2d 992; Herrera, 895 P.2d 359; Searcy, 798 P.2d 914. The court in Searcy declared, "[I]t is the prerogative of the legislature to decide (1) whether [an insanity] defense is available, and (2) what form such a defense will take." Searcy, 798 P.2d at 916 n.2.

       At the postconviction hearing, the circuit court specifically noted that when it accepted Francis' subsequent pleas, it inquired whether she understood she was waiving any defenses she might otherwise have. The record supports this observation. The circuit court opined that "any defenses" included NGI. We agree that the circuit court had no obligation to single out any specific defenses, particularly the NGI, which Francis obviously contemplated.

       While we hold that a personal colloquy is not required to withdraw an NGI plea, we believe it is nonetheless advisable for trial courts to engage in personal colloquy for at least two reasons: First, it helps satisfy the court that the defendant is aware and alert as to what is going on. Second, the record is protected from later ineffective assistance of counsel claims where a convicted defendant might assert that counsel never discussed the NGI withdrawal.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Wisconsin Builders Association, Wisconsin Merchants Federation, Wisconsin Manufacturers and Commerce, Wisconsin Realtors Association, Lake States Lumber Association of Wisconsin & Michigan, National Federation of Independent Business Wisconsin Chapter, Outdoor Advertising Association of Wisconsin, Timber Producers Association of Wisconsin & Michigan, Wisconsin Fireworks Association and Wisconsin Grocers Association and Wisconsin Farm Bureau Federation Cooperative, Plaintiffs-Respondents, v. Wisconsin Department of Transportation and Frank J. Busalacchi, Defendants-Appellants.
    Court of Appeals

      No. 2004AP2388.

      Submitted on briefs April 20, 2005.

      Decided June 16, 2005.

    2005 WI App 160
    (Also reported in 702 N.W.2d 433.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Thomas C. Bellavia, assistant attorney general.

    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John A. Kassner and Jennifer M. Krueger, Murphy Desmond S.C., Madison.
    Before Deininger, PJ., Dykman and Vergeront, JJ.
   VERGERONT, J.

¶ 1. The Wisconsin Builders Association and others challenge the validity of certain provisions of Wis. Admin. Code ch. Trans 233, as amended in 1999 and 2001, on the ground that they are not statutorily authorized and effect an unconstitutional taking of property without just compensation. The challenged rules concern land divisions abutting public highways. The circuit court agreed with Wisconsin Builders, and the Wisconsin Department of Transportation (DOT) appeals.

¶ 2. We conclude Wis. Stat. ch. 236 does not authorize DOT to regulate land divisions that are not subdivisions within the meaning of Wis. Stat. § 236.02(12) and no other statute relied on by DOT grants this authority. Accordingly, the challenged rules are invalid to the extent they apply to land divisions that are not subdivisions. We also conclude the enactment of the setback restrictions do not constitute a Fifth Amendment taking under the theories advanced by Wisconsin Builders. Accordingly, we affirm in part and reverse in part.

BACKGROUND

¶ 3. Prior to 1999, Wis. Admin. Code ch. Trans 233, Division of Land Abutting a State Trunk Highway or Connecting Highway, established the procedures that were to be applied when DOT reviewed subdivision plats pursuant to Wis. Stat. ch. 236. In 1999, DOT revised the rules to provide that DOT is to review all land divisions abutting the highway that are accomplished by any method — not only subdivision plats, hut also condominium plats, certified survey maps, and other land divisions. Wis. Admin. Code § Trans 233.03(3)-(4). Thus the substantive requirements regarding highway access, drainage, noise, visibility, and setback restrictions became applicable to all land divisions, not just subdivision plats under ch. 236. Wis. Admin. Code §§ Trans 233.05, 233.105, 233.08.

¶ 4. In general, the setback is the area within 110 feet of the centerline of a state trunk highway or connecting highway or within fifty feet of the nearer right-of-way line, whichever is furthest from the cen-terline. Wis. Admin. Code § Trans 233.08(2)(a). Structures and improvements within this area are generally prohibited. Id., subsec. 1. The original version of the rule provided for special exceptions to its terms where application would result in "practical difficulty or unnecessary hardship . . . and not contrary to the public interest." Wis. Admin. Code § Hy 33.11 (September, 1956, No. 9). The 1999 amendments to ch. 233 added a provision prohibiting DOT from granting special exceptions for "the erection or installation of any structure or improvement" within a setback area unless the owner executed an agreement providing that, if DOT needed to acquire land within the setback area, DOT "is not required to pay compensation, relocation cost or damages relating to any structure or improvement authorized by the [special exception]." Wis. Admin. Code § Trans 233.11(2) (Register, January 1999, No. 517).

¶ 5. In 2001, DOT revised the setback restrictions to make a reduced setback of fifteen feet from the nearest right of way applicable to a subset of less important and congested highways. Wis. Admin. Code § Trans 233.08(3n). The condition for a special exception — an agreement that DOT need not pay compensation for structures and improvements within the setback — remained. Wis. Admin. Code § Trans 233.11(3)(d). (We will refer to the requirement of this agreement as "the special exception condition.")

¶ 6. Wisconsin Builders filed this action seeking a declaration judgment that the 1999 and 2001 amendments expanding DOT's authority to review all land divisions was without statutory authority. Wisconsin Builders also sought a declaration that the setback restrictions and the special exception condition violated the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 1 of the Wisconsin Constitution because they constituted a taking without just compensation.

¶ 7. The circuit court concluded that Wis. Stat. § 236.03(1) authorized DOT to regulate land divisions abutting highways only if they are subdivisions as defined in Wis. Stat. § 236.02(12) and (8). The circuit court also concluded that Wis. Stat. § 86.07(2), relating to permits for excavations, culverts, or other alterations of a highway, did not confer on DOT the authority to regulate all land divisions abutting the highway. Finally, the court concluded that the 1999 and 2001 amendments relating to setback restrictions and the special exception condition violated the state and federal constitutional protections against public takings without just compensation. The court therefore declared the challenged provisions of Wis. Admin. Code ch. Trans 233 invalid.

ANALYSIS

¶ 8. On appeal, DOT argues that the circuit court erred in concluding that it does not have the statutory authority to regulate all land divisions and that its ruling on the constitutionality of the setback restrictions and special exception condition was in error. Both parties agree that our review of these issues is de novo. The issue whether administrative rules exceed an agency's statutory authority presents a question of law, which we review de novo. Wisconsin Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 10, 270 Wis. 2d 318, 677 N.W.2d 612. The issue whether a regulation constitutes an unconstitutional taking is also question of law. Zealy v. City of Waukesha, 201 Wis. 2d 365, 372, 548 N.W.2d 528 (1996).

I. Statutory Authority

¶ 9. An administrative agency has only those powers expressly conferred or necessarily implied from the statutory provisions under which it operates. Wisconsin Citizens Concerned for Cranes & Doves, 270 Wis. 2d 318, ¶ 14. To determine whether a rule exceeds an agency's statutory authority, we examine the enabling statute to ascertain whether the statute grants express or implied authorization for the rule. Id. An agency's enabling statute is to be strictly construed, and we resolve any reasonable doubt pertaining to an agency's implied powers against the agency. Id. An administrative rule that exceeds an agency's statutory authority is invalid. Id.

¶ 10. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language 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 we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is ambiguous— that is, capable of being understood by reasonably well-informed persons in two or more senses — then we may employ sources extrinsic to the statutory text. Id., ¶¶ 47, 50. These extrinsic sources are typically items of legislative history. Id., ¶ 50.

¶ 11. DOT contends there are a number of statutes that give it the authority to promulgate rules that apply to all land divisions abutting highways. According to DOT, it has broad authority to regulate matters relating to state highways under several sections in Wis. Stat. chs. 84, 85, and 86, and this authority is broad enough to include regulating all land divisions abutting highways. In addition, DOT contends, Wis. Stat. § 236.03(1) authorizes it to regulate all land divisions abutting highways, even though they are not subdivisions, and the circuit court erred in construing it to the contrary.

¶ 12. DOT also points out that it is authorized by Wis. Stat. § 85.16(1) to "make reasonable and uniform orders and rules deemed necessary to the discharge of the powers, duties and functions vested in the department." DOT describes this as "broad rulemaking power," and it is — so long as the rules are "deemed necessary" to discharge the "powers, duties and functions" that other statutes vest in DOT. Thus, the proper focus is on the statutes that vest substantive powers, duties, and functions in DOT.

A. Wisconsin Stat. Chapter 236

¶ 13. We begin with a discussion of Wis. Stat. ch. 236 because that relates specifically to land divisions. Wisconsin Stat. § 236.03(1) provides:

Any division of land which results in a subdivision as defined in s. 236.02 (12) (a) shall be, and any other division may be, surveyed and a plat thereof approved and recorded as required by this chapter. No map or survey purporting to create divisions of land or intending to clarify metes and bounds descriptions may be recorded except as provided by this chapter.

¶ 14. "Plat" is defined in Wis. Stat. § 236.02(8) as "a map of a subdivision." Wisconsin Stat. § 236.02(12) defines a "subdivision" as:

a division of a lot, parcel or tract of land by the owner thereof or the owner's agent for the purpose of sale or of building development, where:
(a) The act of division creates 5 or more parcels or building sites of 1 1/2 acres each or less in area; or
(b) Five or more parcels or building sites of 1 1/2 acres each or less in area are created by successive divisions within a period of 5 years.

¶ 15. Wisconsin Stat. § 236.13 lists conditions with which preliminary and final plats must comply in order to be approved. These include "[t]he rules of the department of transportation relating to provision for the safety of entrance upon and departure from the abutting state trunk highways or connecting highways and for the preservation of the public interest and investment in such highways." Section 236.13(l)(e).

¶ 16. DOT argues that Wis. Stat. § 236.03(1) gives it the authority to regulate land divisions other than subdivisions if it chooses. DOT reads the language "any other land division may be.. . surveyed and a plat thereof approved and recorded as required by this chapter" to mean that DOT may choose to subject all land divisions to its rules. We do not agree. Section 236.03(1) does not even refer to DOT, and there is no implication from the language that the legislature intended to give DOT the authority to decide whether land divisions that are not subdivisions must comply with DOT's regulations. Wisconsin Stat. § 236.13(l)(e) does refer to DOT and does expressly require subdivisions to comply with DOT's rules relating to the safety of entrance and departure and the preservation of the public interest and investment in the referenced highways; but this provision does not either expressly or implicitly give DOT the authority to decide that other land divisions must also comply with its rules.

¶ 17. We have examined the entire chapter and no other provision reasonably suggests that the permissive language in Wis. Stat. § 236.03(1) for land divisions that are not subdivisions gives DOT greater authority than that specifically provided for in Wis. Stat. § 236.13(l)(e). In contrast, there is specific reference to the authority to regulate land divisions that are not subdivisions in Wis. Stat. § 236.45, which addresses the authority of local units of government to adopt ordinances. Wisconsin Stat. § 236.45(2) provides in part:

(2) Delegation of poweR. (a) To accomplish the purposes listed in sub. (1), any municipality, town or county which has established a planning agency may adopt ordinances governing the subdivision or other division of land which are more restrictive than the provisions of this chapter. Such ordinances may include provisions regulating divisions of land into parcels larger than 11/2 acres or divisions of land into less than 5 parcels, and may prohibit the division of land in areas where such prohibition will carry out the purposes of this section. Such ordinances shall make applicable to such divisions all of the provisions of this chapter, or may provide other surveying, monumenting, mapping and approving requirements for such division.

(Footnote added.) When this subsection is read together with § 236.03(1), the plain meaning is that local units of government with planning agencies — not DOT — may require land divisions that are not subdivisions to comply with the chapter's requirements for subdivisions — or may impose other requirements on those land divisions. See Gordie Boucher Lincoln-Mercury Madison, Inc. v. Madison Plan Comm'n, 178 Wis. 2d 74, 85, 503 N.W.2d 265 (Ct. App. 1993) (§ 236.03(1) requires that any subdivision shall be surveyed and a plat thereof approved and recorded as required by Wxs. Stat. ch. 236, but under § 236.45(2), a city, village, town, or county that has established a planning agency may by ordinance require that "other divisions" must do so as well), overruled on other grounds by Wood v. City of Madison, 2003 WI 24, 260 Wis. 2d 71, 659 N.W.2d 31.

¶ 18. DOT contends that the legislative history supports its position, but we conclude it does not. DOT (then the State Highway Commission) was first given the authority to review and approve land divisions in 1949. At that time, Wis. Stat. § 236.03(1) (1949) provided:

Any owner of land wishing to make a land division thereof into parcels, lots, or lots and blocks, for the purpose of sale or assessment, or wishing to dedicate streets, alleys, parks or other lands for public use, shall cause the same to be surveyed, and divided in accordance with this chapter.

A landowner was required to cause a "final plat" to be made upon the completion of a survey and land division, Wis. Stat. § 236.04(1) (1949); and a "final plat" was defined as a "map or chart of the land division." Wis. Stat. § 236.01(7) (1949). Thus, the requirement that all "plats" be submitted to and approved by certain government entities applied to all land divisions. Wis. Stat. § 236.06(1) (1949). When the legislature added the State Highway Commission to the list of approving entities and required that all plats of "lands abutting on a state trunk highway or connecting street" be approved by it, § 236.06(1)(j) (1949), that requirement applied to all land divisions.

¶ 19. In 1955, Wis. Stat. ch. 236 was repealed and recreated in substantially its present form. 1955 Wis. Laws, ch. 570. DOT argues that the enactment of the present Wis. Stat. § 236.03(1) shows that the legislature intended to continue DOT'S authority to regulate land divisions that are not subdivisions, but to make it permissive rather than mandatory. However, we have already concluded that § 236.03(1) does not either expressly or implicitly give DOT the permissive authority to regulate land divisions that are not subdivisions. The legislative history reinforces our conclusion that the permissive authority was given to local units of government, not to DOT. At the same time that the legislature decided that the requirements of ch. 236 would apply only to subdivisions, not to all land divisions, it added the provisions in Wis. Stat. § 236.45(2) authorizing local units of governments with planning agencies to decide, by ordinance, that the requirements of the chapter — or other requirements — would apply to those land divisions. 1955 Wis. Laws, ch. 570, Wis. Stat. § 236.45(2).

¶ 20. We conclude that nothing in Wis. Stat. ch. 236 either expressly or implicitly gives DOT the authority to regulate land divisions that are not subdivisions as defined in Wis. Stat. § 236.02(12).

B. Wisconsin Stat. Chapter 84

¶ 21. DOT relies on the following provisions in Wis. Stat. ch. 84 as a basis for its assertion that it has the authority to regulate all land divisions abutting highways under a broad grant of authority from the legislature. Wisconsin Stat. § 84.01(15) imposes on DOT the duty to plan, construct, improve and maintain the national system of interstate highways and federal aid highways and related projects under Title 23 of the United States Code; receive all funds from any source to supplement the federal aid funds; and expend such funds in accordance with federal and state requirements. Wisconsin Stat. § 84.015(2) gives DOT the authority to enter into contracts for construction and maintenance under Title 23, to submit plans and programs that may be required by the federal rules and to "do all other things necessary fully to carry out the cooperation contemplated and provided for by said code." Section 84.01(2) gives DOT charge of all matters pertaining to the expenditure of state and federal aid for highway improvements and requires it to do "all things necessary and expedient in the exercise of such supervision." Wisconsin Stat. § 84.03(1)(a) obligates DOT to expend all federal highway aid and all state or other matching or supplemental funds in accordance with the federal requirements, and para, (b) gives DOT certain authority with respect to highway funds and local governments.

¶ 22. We see nothing in these provisions — either singly or in combination — that expressly or implicitly authorizes DOT to regulate land divisions abutting highways. In essence, all these provisions relate to DOT's duties and authority regarding the supervision and expenditure of federal and state highway funds and compliance with federal and state law related to those funds. The regulations that are at issue in Wis. Admin. Code ch. Trans 233 are not related to the supervision or expenditure of any such funds, and DOT presents no argument explaining why the regulations are required in order to obtain or maintain those funds.

C. Wisconsin Stat. § 85.02(1)

¶ 23. Wisconsin Stat. 85.02(1) provides:

Planning, promotion and protection. (1) The department may direct, undertake and expend state and federal aid for planning, promotion and protection activities in the areas of highways, motor vehicles, traffic law enforcement, aeronautics, railroads, waterways, specialized transportation services, mass transit systems and for any other transportation mode. All state, regional and municipal agencies and commissions created under authority of law shall to the extent practicable, when dealing with transportation, follow the recommendations made by the secretary.

¶ 24. DOT briefly mentions this section, specifically referring to the terms "planning" and "protection activities." We gather that DOT is tying these terms to its explanation of the need for applying the regulations to all land divisions. According to DOT, the drainage regulations protect highways from storm waters; the highway access, visibility, and setback restrictions enhance safety; and the setback restrictions and special exception condition facilitate DOT's future highway improvement projects. In DOT's view, because the regulations come within DOT's authority to "direct [and] undertake ... planning ... and protection activities in the areas of highways . . .," no more specific authorization is necessary for the regulation of land divisions. As we understand DOT's argument, even if Wis. Stat. ch. 236 gives it the authority to apply its regulations only to subdivisions, the broader authority in Wis. Stat. § 85.02 authorizes it to regulate all land divisions. DOT relies in this argument on the reasoning in League of Wis. Municipalities v. DOC, 2002 WI App 137, ¶¶ 20-22, 256 Wis. 2d 183, 647 N.W.2d 301.

¶ 25. In League of Wis. Municipalities, we considered a challenge to a rule of the department of commerce that allowed variances to rules regarding new private sewerage systems. The plaintiffs contended that this rule was beyond the authority of the department because a statute authorized the department to grant variances for existing systems, but said nothing about new systems. Id., ¶¶ 19-21. We rejected the argument because, we concluded, there was no indication that the legislature intended that statute "to be the beginning and the end of the department's authority to grant variances relating to private sewage systems." Id., ¶ 21. Rather, we concluded, other statutes plainly expressed the legislature's intent to give the department broad authority to grant exceptions and variances from its rules. Id., ¶¶ 21, 22.

¶ 26. We do not agree with DOT that the statutes in League of Wis. Municipalities are analogous. The statutes that we held gave the agency authority there were specific enough to reveal the legislature's intent with respect to the issue at hand — granting variances from the agency's own rules. Wisconsin Stat. § 85.02 does not expressly give DOT the authority to regulate in any way land abutting highways, nor do the terms "planning" and "protection activities in the areas of highways" necessarily imply — or even reasonably imply —such authority. There is also nothing in any related sections of Wis. Stat. ch. 85 that even arguably suggests this meaning.

¶ 27. In addition, Wis. Stat. ch. 236 is a detailed and comprehensive statute relating to land divisions. The legislature has expressly given certain local units of government the authority to regulate land divisions that are not subdivisions. The matter of who can regulate land divisions and to what extent is a significant policy decision that affects a number of important and competing interests. We are satisfied that the legislature did not intend to give DOT this authority in Wis. Stat. § 85.02 through use of the terms "planning .. . [and] protection activities in the areas of highways ...."

D. Wisconsin Stat. § 86.07(2)

¶ 28. Wisconsin Stat. § 86.07(2) provides:

(2) No person shall make any excavation or fill or install any culvert or make any other alteration in any highway or in any manner disturb any highway or bridge without a permit therefor from the highway authority maintaining the highway. Such permit shall contain the statement and be subject to the condition that the work shall be constructed subject to such rules and regulations as may be prescribed by said authority and be performed and completed to its satisfaction, and in the case of temporary alterations that the highway or bridge shall be restored to its former condition, and that the permittee shall be liable to the town or county or state, as the case may be, for all damages which occur during the progress of said work or as a result thereof. Nothing herein shall abridge the right of the department or the county board or its highway committee to make such additional rules, regulations and conditions not inconsistent herewith as may be deemed necessary and proper for the preservation of highways, or for the safety of the public, and to make the granting of any such permit conditional thereon. If any culvert is installed or any excavation or fill or any other alteration is made in violation of the provisions of this subsection, the highway may be restored to its former condition by the highway authority in charge of the maintenance thereof; and any person who violates this subsection shall be punished by a fine of not less than $5 nor more than $100, or by imprisonment not exceeding 6 months, or both.

(Emphasis added.)

¶ 29. DOT argues that the italicized sentence gives it the broad authority to regulate highway access "in the interests of public safety and convenience," citing Narloch v. DOT, 115 Wis. 2d 419, 432, 340 N.W.2d 542 (1983). In Narloch, the court considered the term "existing right of access" in Wis. Stat. § 32.09(6)(b). Under that paragraph, the "deprivation or restriction of existing right of access" had to be considered in determining compensation for a partial taking of property other than an easement. The court rejected DOT's argument that this term included only existing access points that had been improved and for which DOT had already granted permits under Wis. Stat. § 86.07(2). DOT's position was that, because it had the authority to restrict access points under § 86.07(2) and deny permits, it did not have to compensate for depriving a property owner of the right to apply for a permit. 115 Wis. 2d at 432. In that context, the court described § 86.07(2) as "not denying] the right to access, but merely regulating] access in the interests of public safety and convenience." Id. The court concluded that the "existing right of access" included "the right of an abutting property owner to ingress and egress, and the right [was] to be judged on the criteria for granting permits for access points under sec. 86.07(2) . ..." Id.

¶ 30. There is nothing in Narloch that supports DOT's position that Wis. Stat. § 86.07(2) gives it the authority to regulate access to highways beyond the context of imposing conditions for permits for the alteration to or disturbance of the highway. DOT has promulgated regulations pursuant to § 86.07(2), and those are contained in Wis. Admin. Code ch. Trans 231. As explained in Wis. Admin. Code § Trans 231.01(1), those regulations

designate] standards within which the department is authorized to issue permits pursuant to s. 86.07(2), Stats., for placing, constructing or altering driveways for movement of traffic between state trunk highways and abutting property or otherwise making excavations or fills or installing culverts or making other alterations in a state trunk highway or in other manner disturbing any such highway ....

The prohibitions on access for land divisions in Wis. Admin. Code § Trans 233.05 go far beyond rules and conditions imposed by permits that allow access.

¶ 31. We agree with Wisconsin Builders that the language in Wis. Stat. § 86.07(2) — "[n]othing herein shall abridge the right of [DOT]..." — is not a broad grant of authority to promulgate regulations "for the preservation of highways, or for the safety of the public." Rather it is a statement that the legislature does not intend in this subsection to limit the authority DOT has independent of this section to impose conditions or promulgate rules regarding excavations, fill, culverts, or other alterations or disturbances to a highway — as long as the conditions and rules are consistent with this subsection.

E. Conclusion

¶ 32. We conclude Wis. Stat. ch. 236 does not authorize DOT to regulate land divisions that are not subdivisions within the meaning of Wis. Stat. § 236.02(12). We also conclude no other statute relied on by DOT grants this authority. DOT presents a number of policy arguments supporting its regulation of all land divisions. These arguments, however, must be addressed to the legislature. The existing statutes neither expressly nor by necessary implication give DOT this authority. Accordingly, the regulations in Wis. Admin. Code ch. Trans 233 are invalid to the extent they apply to land divisions other than subdivisions.

II. Setback Restrictions — Fifth Amendment Taking

¶ 33. Our conclusion that the regulations in Wis. Admin. Code ch. Trans 233 are beyond the statutory authority of DOT insofar as they apply to land divisions other than subdivisions does not affect their validity as applied to subdivisions. Thus, we need to decide the question of the constitutionality of the setback restrictions.

¶ 34. A challenger to the constitutionality of regulations has the burden of showing unconstitutionality beyond a reasonable doubt, and the regulations carry a heavy presumption of constitutionality, just as do statutes. Wisconsin Citizens Concerned for Cranes & Doves, 270 Wis. 2d 318, ¶¶ 10 n.6, 13 n.8.

¶ 35. Because Wisconsin Builders has the burden of persuading us that the regulations effect an unconstitutional taking, we summarize its position first. It contends that the setback restrictions amount to a taking of an easement development all along affected state highways and, therefore, under Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987), there must be a nexus to a legitimate public purpose. DOT's purpose, Wisconsin Builders asserts, is to condemn land without paying for it and that is not a legitimate public purpose. DOT's position is that the setback restrictions do not facially effect a regulatory taking because they do not deprive landowners of substantially all valuable use of their property, and the special exception condition does not facially impose a development condition of the type declared unconstitutional in Nollan.

¶ 36. The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not "be taken for public use, without just compensation"; the clause does not prohibit the taking of private property, but instead places a condition on the exercise of that power. Lingle v. Chevron U.S.A. Inc., 125 S. Ct. 2074, 2080 (2005) (citations omitted). "In other words, it 'is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.'" Id. (citation omitted, emphasis omitted). While "the paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property .... government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and ... such 'regulatory takings' may be compensable under the Fifth Amendment." Id. at 2081 (citations omitted).

¶ 37. In Lingle, the Court recently summarized the types of regulatory actions that may constitute a taking for Fifth Amendment purposes and the appropriate standards for each: (1) those that require an owner to suffer a permanent physical invasion of his or her property, however minor; (2) those that completely deprive an owner of "all economically beneficial us[e]" of his or her property (these first two categories generally will be deemed per se takings for Fifth Amendment purposes); (3) those that involve land use extractions under Nollan, 483 U.S. 825, and Dolan v. City of Tigard, 512 U.S. 374 (1994); and (4) in all other situations, those that meet the standards set forth in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). Lingle, 125 S. Ct. at 2081, 2085-87. Under Penn Central, the primary factors a court is to consider are

'[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.' In addition, the 'character of the governmental action' — for instance whether it amounts to a physical invasion or instead merely affects property interests through 'some public program adjusting the benefits and burdens of economic life to promote the common good' — may be relevant in discerning whether a taking has occurred.

Lingle, 125 S. Ct. at 2081-82 (citing Penn Central, 438 U.S. at 124).

¶ 38. Also in Lingle, the Court declared invalid an alternative test for determining whether a regulation effected a taking that it had formulated in Agins v. City of Tiburon, 447 U.S. 255 (1980). Lingle, 125 S. Ct. at 2078. In Agins, the Court stated that government regulation of private property "effects a taking if [such regulation] does not substantially advance legitimate state interests . . . ." Agins, 447 U.S. at 260. In Lingle, the Court concluded that this standard is not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation. 125 S. Ct. at 2085.

¶ 39. In applying the above standards to this ease, we begin by noting that Wisconsin Builders is, as DOT correctly contends, making a facial challenge to the setback restrictions. That is, there are no facts of record regarding the application of the restrictions to a particular property owner. On a facial challenge, the only issue properly before the court is whether the "mere enactment" of the regulation constitutes a taking. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495 (1987).

¶ 40. In light of Lingle, the theory that a regulation effects a taking for Fifth Amendment purposes if it does not substantially advance a legitimate state interest is no longer valid. Thus, to the extent Wisconsin Builders relies on this theory — and it does cite to Agins — it does not have a viable argument that the enactment of the setback restrictions effect a taking. However, as the Court made clear in Lingle, Nollan and Dolan establish a distinct test for a regulatory taking that remains viable. We therefore consider whether, as Wisconsin Builders contends, the enactment of the setback restrictions constitute a taking under this standard.

¶ 41. As explained in Lingle, both Nollan and Dolan involved "Fifth Amendment takings challenges to adjudicative land-use exactions — specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit." Lingle, 125 S. Ct. at 2086. In both cases, the Court stated that, had the government simply required the landowners to dedicate their land for public use, rather than conditioning the grant of the permits upon such a dedication, a taking would have occurred. Nollan, 483 U.S. at 830-31; Dolan, 512 U.S. at 384. The reason that would have been a taking is that "such public access would deprive [the landowners] of the right to exclude others, 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Dolan, 512 U.S. at 384 (citation omitted). The issue presented in both cases, "was whether the government could, without paying the compensation that would otherwise be required upon effecting such a taking, demand the easement as a condition for granting a development permit the government was entitled to deny." Lingle, 125 S. Ct. at 2086. The Lingle Court summarized the holdings of the two cases in this way:

The Court in Nollan answered in the affirmative, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. 483 U.S. at 834^837 .... The Court further refined this requirement in Dolan, holding that the adjudicative exaction requiring dedication of private property must also be " 'rough[ly] proportiona[l]'... both in nature and extent to the impact of the proposed development." 512 U.S. at 391....

Id. (citations omitted).

¶ 42. As we understand Wisconsin Builders' argument, it analogizes the DOT setback restrictions to the easements in Nollan and Dolan. However, the differences are significant. The setback restrictions are not a public easement: they do not deprive landowners of the right to exclude others. It is not, as the Lingle Court described the easements in Nollan and Dolan, a "per se physical taking [outside of the exaction context]." Lingle, 125 S. Ct. at 2086.

¶ 43. Wisconsin Builders finds support for its easement analogy in Kamrowski v. State Highway Comm'n, 31 Wis. 2d 256, 142 N.W.2d 793 (1966), but that case did not decide whether a governmental action constituted a Fifth Amendment taking. There the legislature authorized the state highway commission to pay to acquire "scenic easements" along particular highways through the power of eminent domain. Id. at 263. The scenic easements prohibited certain uses, permitted others, and did not allow the public the right to enter the restricted area. Id. at 260-61. The property owners contended that, even if they were compensated, the government action was unconstitutional because public enjoyment of scenic beauty was not a public use and there were insufficient standards limiting the commission's actions. Id. at 261. The court concluded that the public enjoyment of scenic beauty was a public purpose that supported the power to take property in return for just compensation and the legislature had given the commission sufficient standards. Id. at 265-66. The court did not decide that the scenic easement was a Fifth Amendment taking, because the commission was willing to offer just compensation. However, that willingness does not become legal authority for what constitutes a taking in this case, as Wisconsin Builders appears to suggest. In addition, the mere use of the term "scenic easement" there does not support an argument that those restrictions are the same as the public access easements in Nollan and Dolan, which were deemed "per se physical takings." Lingle, 125 S. Ct. at 2087.

¶ 44. Wisconsin Builders, in essence, is arguing for a significant extension of Nollan and Dolan, but the Supreme Court has at least twice emphasized that it has not extended the standard applied there beyond the specific context of those cases. See City of Monterey v. Del Monte Dunes, 526 U.S. 687, 702 (1999) ("we have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use"); and Lingle, 125 S. Ct. at 2086 (citing Del Monte Dunes approvingly on this point). We decline to extend the Nollan/Dolan standard to a context far removed from the facts of those cases.

¶ 45. We also observe that the rough proportionality standard of Dolan requires that, in an adjudicative context, the government make "an individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." 512 U.S. at 391. This standard does not, by its very terms, appear to apply to the facial challenge to a regulation, where there are no facts regarding any individual landowner. Wisconsin Builders does not present an argument that resolves this incompatibility.

¶ 46. We conclude that the Nollan/Dolan standard does not apply to Wisconsin Builders' facial challenge to the setback restrictions. We therefore do not take up DOT'S argument that the special exception condition is permissible under that standard.

¶ 47. Wisconsin Builders does not argue that any of the three other theories available under Lingle for challenging a government regulation as a Fifth Amendment taking are applicable to its facial challenge to the setback restrictions or the special exception condition. See paragraph 37. Accordingly, we conclude Wisconsin Builders has not established that the enactment of the setback restrictions effect a taking under either the Fifth Amendment to the United States Constitution or article I, section 1 of the Wisconsin Constitution. See footnote 16.

By the Court. — Order affirmed in part; reversed in part.

       There are eleven plaintiffs in this action, all entities with interests in building or land development. For simplicity's sake, we will use "Wisconsin Builders" to include all plaintiffs.

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

       These rules were first promulgated in 1956 as Wis. Admin. Code ch. Hy 33. In 1996, the chapter was renumbered Wis. Admin. Code ch. TRANS 233, but no substantive changes were made at that time.

       WISCONSIN Admin. Code § TRAns 233.015(7) provides:
      (7) "Structure" includes a temporary or non-permanent addition to or betterment of real property that is portable in nature, but that adversely affects the safety of entrance upon or departure from state trunk or connecting highways or the preservation of public interest and investment in those highways, as determined by the department. "Structure" does not include portable swing sets, movable law sheds without pads or footings, and above ground swimming pools without decks.
      WisConsin Admin. Code § Trans 233.015(2) provides:
      (2) "Improvement" means any permanent addition to or betterment of real property that involves the expenditure of labor or money to make the property more useful or valuable. "Improvement" includes parking lots, driveways, loading docks, in-ground swimming pools, wells, septic systems, retaining walls, signs, buildings, building appendages such as porches, and drainage facilities. "Improvement" does not include sidewalks, terraces, patios, landscaping and open fences.

       The term originally used was "variance" but it was changed to special exception in the 2001 amendments.

       Structures and improvements lawfully placed in a setback area prior to February 1, 1999, or lawfully placed in a setback area prior to a land division were allowed to continue. Wis. Admin. Code § TRANS 233.012(2)-(3).

       Wisconsin Stat. § 236.45(1) provides:
      Local subdivision regulation. (1) Declaration of legislative intent. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.

       We are uncertain whether DOT is arguing that we should consult legislative history to resolve an ambiguity in Wis. Stat. § 236.03(1) or whether we should consult it to reinforce what DOT views as the plain meaning of the statute. However, the distinction does not matter, because we may consult legislative history for both purposes. See State ex rel. Kalal v. Circuit Court for Bane County, 2004 WI 58, ¶¶ 51, 56 n.11, 271 Wis. 2d 633, 681 N.W.2d 110.

       1949 Wis. Laws, ch. 138, § 2.

       Wisconsin Stat. § 236.06(l)(j) (1949) did not refer to rules for the State Highway Commission's approval, but Wis. Stat. § 236.03(8) (1949), enacted at the same time, provided:
      (8) To promote the public safety and convenience, and in the interest of the general welfare, all land-divisions shall be so designated as to provide [1] for the safety of entrance upon and departure from the abutting highways or streets and [2] for the preservation of the public interest and public investment in such highways or streets, in so far as such provision shall be reasonable under the particular circumstances.

       WISCONSIN Stat. § 84.01(15) provides:
      (15) Federal aid systems op highways. The department shall plan, select, lay out, add to, decrease, revise, construct, reconstruct, improve and maintain, or arrange for maintenance by subdivisions of the state or by any other means, the national system of interstate highways, federal aid highway system, system of secondary and feeder roads, federal aid grade crossings projects, federal forest highway systems and projects and other highway and related projects, all within the meaning of Title 23, USC and all acts amendatory thereof and supplementary thereto, and the federal regulations issued under such code; and receive all funds provided by any source to match or supplement such federal aid funds, and expend such funds in accordance with the requirements of acts of congress or of this state making such funds available and cooperate with federal authorities and subdivisions of the state in carrying out this subsection. This subsection shall not limit the other powers of the department relative to federal aid for highways.

       Title 23 of the United States Code governs federal assistance for highways that are part of the interstate system or the national highway system. 23 U.S.C. §§ 101(a)(5) and 103(a) (2001).

       This is evident from the January 1955 report of the Conclusions and Recommendations of the Judiciary Committee on the Subdivision and Platting of Land, which undertook a study at the direction of the legislature and whose recommendations were largely adopted in the revisions enacted as 1955 Wis. Laws, ch. 570.

       We note that, in addition to the constitutional challenge to the setback restrictions and the conditions for obtaining a special exception, Wisconsin Builders asserts that these regulations conflict with Wis. Stat. § 32.04. This section provides: "Procedure in condemnation. All acquisition of property in this state by condemnation, except as hereinafter provided, commenced after April 6, 1960 shall be accomplished in the following manner." We do not address this argument because it is it not sufficiently developed as an argument independent of Wisconsin Builders' constitutional argument.

       Wisconsin Builders argues that DOT waived the right to argue on appeal that the regulations did not facially effect a taking. Wisconsin Builders asserts that DOT did not make that argument in the circuit court, but argued only that the claims were unripe — a different argument, according to Wisconsin Builders. DOT's reply is that its ripeness argument in the circuit court was in substance the same as the argument that the regulations do not facially effect a taking; it is simply labeling the argument in a more correct way. We have the authority to consider arguments not raised in the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). We therefore need not decide whether the "facial" argument DOT makes on appeal is the same as the ripeness argument it made in the circuit court. They are, at the least, closely related issues of law. The record on appeal is sufficient to permit us to decide the issue as DOT now frames it and we choose to do so. Wisconsin Builders has had the opportunity to respond to DOT's "facial" argument, and its response is essentially the same as its argument that the setback restrictions effect an unconstitutional taking.

       Wisconsin Builders alleged an unconstitutional taking under both the federal and state constitutions, but it does not separately address state constitutional law. Both parties appear to assume that the state and federal standards are the same. We confine our analysis to the law interpreting the federal constitution and accept Wisconsin Builders' implicit concession that the analysis under the state constitution is the same.

       In explaining the origin of this standard, the Court observed that it was derived from due process jurisprudence.
        Lingle v. Chevron U.S.A. Inc., 125 S. Ct. 2074, 2083 (2005). The court invalidated this standard only for a Fifth Amendment taking analysis.

       Although DOT asserts that two different analyses are required — one for the setback restrictions and one for the special exception condition, Wisconsin Builders does not make a separate argument for each. We address only the arguments that Wisconsin Builders makes.


author: KESSLER, J.

text:
    Labor Ready, Inc. and Lumbermen's Mutual Casualty Co., Plaintiffs-Appellants, v. Labor and Industry Review Commission and Carnett S. Powell, Defendants-Respondents.
    Court of Appeals

      No. 2004AP1440.

      Submitted on briefs March 01, 2005.

      Decided June 21, 2005.

    2005 WI App 153
    (Also reported in 702 N.W.2d 27.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Richard E. Ceman, Jr. of Bascom, Budish & Ceman, S.C. of Wauwatosa.

      On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of Jerome S. Schmidt, assistant attorney general and Peggy A. Lautenschlager-, on behalf of the defendant-respondent Carnett S. Powell, the cause was submitted on the brief of Patrick M. Cooper of Cooper Law Offices S.C. of Milwaukee.
    Before Fine, Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. This is an appeal by a temporary help agency, Labor Ready, Inc., and its insurance carrier, Lumbermen's Mutual Casualty Co. (collectively, "Labor Ready") from an order of the circuit court which affirmed the decision of the Labor and Industry Review Commission (the "Commission") holding that Carnett Powell ("Powell") was entitled to worker's compensation for an injury he sustained on January 28, 2002, while he was at the premises operated by Labor Ready awaiting a possible work assignment. Labor Ready argued, before the Commission and before the circuit court, that Powell was not an "employee" under the worker's compensation statute. Because we conclude that the Commission and the trial court correctly applied the law to the facts in this case, we affirm.

BACKGROUND

¶ 2. Labor Ready is a temporary help agency, which operates essentially as a hiring hall. The contract between Labor Ready and those seeking work assignments (titled "Application for Employment") requires that the persons seeking work physically present themselves each day at the Labor Ready facilities and remain there until they have a work assignment. According to the contract signed by Powell, Labor Ready does not provide work assignments by phone, and does not guarantee an assignment simply because the person appears at Labor Ready's dispatch hall.

¶ 3. Powell completed his Application for Employment on January 17, 2002. He received work assignments on the following Monday through Thursday, January 20 through 24. On the following Monday, January 28, he arrived at Labor Ready at about 5:15 a.m. and was approximately the seventh person in line waiting for the doors to open at 7:00 a.m. Another work seeker cut into the line, ahead of Powell and others. Powell told him he should wait in line like everyone else. Later, after Powell had signed in and was waiting for work, he went to the receptionist desk and asked for a coffee filter. At that time, without warning, the fine jumper hit Powell on the right side of his head. Powell fell on his left shoulder, breaking it. At the time he was attacked, Powell had not received a work assignment for that day.

¶ 4. Powell filed for worker's compensation. Labor Ready denied the claim, asserting that Powell was not an "employee" as that term is used in Wisconsin statutes. The administrative law judge agreed with Labor Ready. Powell appealed to the Commission, which determined that Powell was an employee for purposes of the worker's compensation law. Labor Ready appealed that determination to Milwaukee County Circuit Court. The trial court affirmed the Commission. This appeal followed.

STANDARD OF REVIEW

¶ 5. At issue is whether Powell was an employee acting in the scope of his employment at the time of his injury. This requires interpretation of Wisconsin's worker's compensation statutes. "Frequently, we defer to an administrative agency's interpretation of a statute, [if] the agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute." DOC v. Schwarz, 2005 WI 34, 15, 279 Wis. 2d 223, 693 N.W.2d 703 (citation and internal quotation marks omitted). When reviewing an agency's statutory interpretation, this court generally applies one of three standards of review, with varying degrees of deference. Id.

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

Id. (citation omitted).

¶ 6. Labor Ready argues that the Commission's determination is entitled to no deference because this is a case of first impression. It asserts that, because Powell was not guaranteed a job on the day in question, and had not been assigned a job at the time of the injury, he was not Labor Ready's employee for purposes of worker's compensation. It further argues that the Commission improperly applied unemployment compensation standards to a worker's compensation statute. Thus, Labor Ready asks us to review the issue de novo and find in its favor.

¶ 7. In contrast, the Commission and Powell strenuously argue that the Commission's determination is entitled to great weight deference because the statute at issue, Wis. Stat. § 102.07(4)(a) (2001-02), "has been applied in numerous contexts for over 90 years." The Commission also asserts that it has been determining questions concerning the existence of an actual employer-employee relationship since the passage of the Worker's Compensation Act in 1911.

¶ 8. We agree that the Commission's long experience interpreting questions concerning the existence of an employer-employee relationship supports the Commission's argument that we owe great deference to its decision. However, it is also clear from the record that the Commission itself viewed this as a case of first impression. It has not, apparently, previously determined whether operating a dispatch hall creates an employee status prior to the moment an individual is assigned to a task for which he or she will be paid. To arrive at a conclusion, the Commission had to interpret existing Wisconsin statutes. The lack of experience with these facts, and the need to construe a statute, argues for our de novo review.

¶ 9. We disagree with both parties that determination of the proper standard of review is crucial in this case, because whether we examine the issues in this case de novo, or with great deference, the result is the same: we conclude that Powell is entitled to worker's compensation. Thus, for purposes of discussion, we will accept Labor Ready's invitation to examine the case without giving deference to the Commission's decision.

DISCUSSION

¶ 10. Labor Ready contends that Powell is not entitled to workers compensation because at the time of his injury, he was not an "employee" as that term is defined in Wis. Stat. § 102.07(4)(a). Labor Ready also implies, but does not substantially develop the argument, that Powell is ineligible because he has not satisfied the conditions for liability outlined in Wis. Stat. § 102.03. We examine each issue in turn.

A. Powell was an "employee"

¶ 11. Wisconsin Stat. § 102.07(4)(a) defines an "Employee" as "[e]very person in the service of another under any contract of hire, express or implied ...." The principal test for determining whether a Chapter 102 employer-employee relationship exists is whether the alleged employer had the right to control the details of the employee's work. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973). In making this determination, four secondary factors are considered: "(1) The direct evidence of the exercise of the right of control; (2) the method of payment of compensation; (3) the furnishing of equipment or tools for the performance of the work; and (4) the right to fire or terminate the relationship." Id. Applying this test, we conclude, as did the Commission, that Powell was an "employee" as that term is defined in § 102.07(4)(a).

¶ 12. Before Labor Ready assigned Powell to any temporary work, it insisted that Powell complete its Application for Employment, and that he sign in at least two places designated as "Employee Signature." As we show below, this document describes the relationship between Powell and Labor Ready, but makes no reference to any obligations of the entities for whom, upon assignment by Labor Ready, Powell might ultimately perform work. Labor Ready is the employer, Powell is the employee, and Powell agrees to perform tasks for Labor Ready "customers." Powell must be at the Labor Ready dispatch hall in order to be assigned to work for a customer. Powell is paid by Labor Ready, not by the customer. In fact, Powell released the customers from liability should he be injured. Among other things, the Application for Employment stated:

It is our policy to seek and employ the best qualified personnel... and to provide equal opportunity for the advancement of employees ....
Whenever I wish to register ... to work, I will visit the dispatch hall and sign in .... If I do not report to the dispatch hall and sign in, Labor Ready may assume that I am not available for work on that day.
[A]s part of its regular employment policy. . . Labor Ready requires any employee who suffers a work-related injury or illness to be tested for the presence of drugs and/or alcohol.
I acknowledge that I am a temporary employee of [Labor Ready] and am not an employee of [Labor Ready's] customer.
If I am ever injured in the course of my work for [Labor Ready], I agree that I will look only to [Labor Ready's] Workers' Compensation coverage and not to [Labor Ready's] customer for any recovery ....
In signing this Release, I understand that I am not waiving or releasing any claims which I may have against the Worker's Compensation coverage provided by [Labor Ready].

(Emphasis added.)

¶ 13. Labor Ready also provides the facility at which Powell and others must appear, and must wait, in order to be considered for assignment to a customer. The dispatch hall is for the convenience of Labor Ready; the dispatch hall allows Labor Ready to immediately determine the availability of a person to send on assignment and avoid the need to employ people to telephone potential workers. This additional aspect of control justifies application of worker's compensation protections to events that occur at the Labor Ready dispatch hall premises.

¶ 14. In addition, Powell was required to sign, as "Employee," a Safety Training Program Acknowledgement attesting to his completion of a Labor Ready safety program. He also completed an "Employee Withholding Allowance Certificate," known generally as a W-4, authorizing Labor Ready to make the indicated number of exemption allowances from his paycheck.

¶ 15. Against all of this documentation of Powell's status as its employee, Labor Ready relies on the following language it included in the Application for Employment to argue that Powell is not really an employee until the moment when he receives an assignment for one of Labor Ready's customers, and that he ceases to be an employee each evening the moment he finishes the customer work assignment: "I understand that my employment with Labor Ready is on a day-today basis. That is, at the end of the work day, I will be deemed to have quit until I report to the dispatch hall and receive a work assignment at a later date."

¶ 16. We conclude that Labor Ready cannot, by a provision in a contract it prepares, and which it requires workers to sign as a condition precedent to receiving any work assignment, remove itself from the obligations, and its workers from the protection available, under Wisconsin's statutory worker's compensation provisions. See Graebel Moving & Storage of Wis. v. LIRC, 131 Wis. 2d 353, 355, 389 N.W.2d 37 (Ct. App. 1986). In Graebel, this court held that the Commission is not bound by the parties' attempt to remove a worker from unemployment compensation coverage by a private agreement designating him as an "independent contractor." Id. We held: "The conditions for unemployment compensation are not subject to a private agreement but must be determined under the applicable statutory provisions." Id. Although Graebel was concerned with unemployment compensation as opposed to worker's compensation, statutory provisions and public policy make the same reasoning applicable here to the Labor Ready contract.

¶ 17. In summary, the contract and the conduct of the parties have sufficient relevant indicia of an employer-employee relationship. We conclude that for purposes of worker's compensation statutes, Powell was Labor Ready's employee at the time he was injured. See Wis. Stat. § 102.07(4)(a).

B. The conditions of liability were satisfied

¶ 18. Having established that Powell was an employee of Labor Ready, we turn to the statutory system of determining whether there is worker's compensation liability for the injury he sustained at Labor Ready's dispatch hall. The governing statute, Wis. Stat. § 102.03, provides in relevant part:

Conditions of liability. (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
(a) Where the employee sustains an injury.
(b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.
(c) 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
4. The premises of the employer include the premises of any other person on whose premises the employee performs service.
(e) Where the accident or disease causing injury arises out of the employee's employment....

We conclude that the relevant conditions have been satisfied.

¶ 19. It is not disputed that Powell sustained an injury on January 28, 2002, at Labor Ready's dispatch hall. It is not disputed that the injury occurred at Labor Ready's place of business, nor is it disputed that Powell was required to be at that place of business if he wished to obtain a work assignment. It is also clear that after completing his Application for Employment with Labor Ready on January 17, 2002, Powell was promptly assigned work for a customer on January 20, and again daily through January 24. It is a certainty that he would receive no assignment if he did not present himself at Labor Ready's dispatch hall and remain there until assigned to perform service for a customer. Labor Ready is in the business of matching customer requests for workers with its pool of available workers.

¶ 20. Powell was, therefore, performing a service incidental to his employment. Specifically, he was, as the Commission concluded, "on the employer's premises at the employer's direction for an employment-related purpose, within a reasonable interval after his last work assignment." Based on these facts, Powell was "performing service growing out of and incidental to his or her employment," see Wis. Stat. § 102.03(1)(c), and had likewise satisfied the other conditions of liability identified in § 102.03. We agree with the Commission that "coverage for applicants who are injured while on the employer's premises for an employment-related purpose and pursuant to the employer's direction, even though the actual employment duties have been interrupted for a reasonable interval, is the law in Wisconsin." Thus, we conclude that Powell was entitled to worker's compensation.

By the Court. — Order affirmed.

       The Application for Employment, signed by Powell over a line designated "Employee Signature" provides in pertinent part:
      Whenever I wish to register my availability to work, I will visit the dispatch hall and sign in. I know that Labor Ready is not required to find work for me and is not required to contact me in any way in order to make work available to me. If I do not report to the dispatch hall and sign in, Labor Ready may assume that I am not available for work on that day.

      I understand that after receiving a job assignment, I am free on my own time to leave the dispatch hall and do as I wish until the job assignment starts.
      (Emphasis added.)

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.