author: HOOVER, P. J.

text:
    Michael Mayek, Plaintiff-Appellant, v. Cloverleaf Lakes Sanitary District #1, Defendant-Respondent.
    Court of Appeals

      No. 99-2895.

      Submitted on briefs May 23, 2000.

    Decided July 18, 2000.

    2000 WI App 182
    (Also reported in 617 N.W.2d 235.)

      On behalf of the briefs of plaintiff-appellant, the cause was submitted on the briefs oí Kathryn A. Keppel and Raymond M. Dall'Osto and Gimbel, Reilly, Guerin & Brown of Milwaukee.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Wendy Schmidt Larson and Kasdorf Lewis & Swietlik, S.C. of Green Bay.
    Before Cane, C. J., Hoover, P.J., and Peterson, J.
   HOOVER, P. J.

¶ 1. Michael Mayek appeals the order dismissing that portion of his action appealing a special assessment of the Cloverleaf Lakes Sanitary District No. 1. He contends that the circuit court erroneously determined that he failed to comply with the requirements of WlS. Stat. § 66.60(12). He claims that he complied with the statutory requirements and should be permitted to maintain his appeal of the special assessment. We agree and, accordingly, the order is reversed.

BACKGROUND

¶ 2. Mayek owned four parcels of real estate located in the Town of Belle Plaine in Shawano County. The parcels were part of the Cloverleaf Lakes Sanitary District No. 1. In 1996, the district was constructing a sanitary sewer system near Mayek's property. Mayek took the opportunity to extend sewer service to his property. In August 1998, the district created a new assessment district, which was limited to the four parcels Mayek owned. It authorized the levy of a special assessment on August 12,1998. Mayek challenged the assessment on the same day it was levied by filing his summons and complaint with the circuit court and serving it on the district's clerk. The district published the final resolution on August 23,1998.

¶ 3. At a summary judgment motion hearing, the district for the first time asserted that the circuit court lacked jurisdiction because Mayek had failed to comply with Wis. Stat. § 66.60(12). Specifically, the district claimed that Mayek's complaint was not an appeal, that the summons and complaint were filed before the official notice of the assessment was mailed or published and that Mayek erroneously served the clerk of the sanitary district, rather than the clerk of a city, town or village. The court granted the district's motion, dismissing all of Mayek's claims except his equal protection claim. It concluded that Mayek had failed to comply with § 66.60(12) and that the circuit court therefore lacked jurisdiction over the proceedings. Mayek's appeal followed.

DISCUSSION

¶ 4. Mayek contends that because he complied with the procedural requirements of Wis. Stat. § 66.60(12)(a), the circuit court erred by granting the district's motion to dismiss. Mayek's contention presents a question of statutory interpretation and application of the statute to undisputed facts, questions of law that we review de novo. See Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). The goal of statutory interpretation is to determine and give effect to the legislature's intent. See Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). We must first look to the statute's plain language and if it is unambiguous, "we are prohibited from looking beyond such language to ascertain its meaning." Id. at 163. However, if the statute is ambiguous, "we must look at the history, scope, context, subject matter, and object of the statute." Id. "Statutory language is ambiguous if reasonably well-informed individuals could differ as to its meaning." State v. Kirch, 222 Wis. 2d 598, 602-03, 587 N.W.2d 919 (Ct. App. 1998). Accordingly, we turn to the language of § 66.60(12)(a) and (b), which provides in relevant part:

If any person having an interest in any parcel of land affected by any determination of the governing body . . . feels aggrieved thereby that person may, within 90 days after the date of the notice or of the publication of the final resolution pursuant to sub. (8)(d), appeal therefrom to the circuit court of the county in which such property is situated by causing a written notice of appeal to be served upon the clerk of such city, town or village ....
(b) Such appeal shall be tried and determined in the same manner as cases originally commenced in such court, and costs awarded as provided in s. 893.80.

¶ 5. A proceeding challenging a special assessment is a special proceeding. See Outagamie County v. Greenville, 2000 WI App 65, ¶ 7, 233 Wis. 2d 566, 608 N.W.2d 414. In DOT v. Peterson, 226 Wis. 2d 623, 633, 594 N.W.2d 765 (1999), our supreme court said:

We have long adhered to the rule that strict compliance with procedural statutes is necessary to obtain jurisdiction to review [special proceedings]. However, a companion rule is that the statutes must clearly set forth the procedural requirements necessary to pursue such review.
As we have previously said, where a procedural statute lacks specific direction clearly indicating who is to be served with notice, an ambiguity exists. Additionally, where an ambiguity exists [procedural statutes are to be liberally construed so as to permit a determination upon the merits of the controversy if such construction is possible.
The upshot of these maxims is that where a procedural statute does not provide specific direction for compliance, the ambiguity is to be resolved in favor of the person appealing the condemning entity's award of damages. (Citations omitted.)

We have found Wis. Stat. § 66.60(12)(a) to be ambiguous. See Greenville, 2000 WI App at ¶¶ 10, 12. Although § 66.60(12)(a) sets forth a process to initiate an appeal of a special assessment, it does not fully describe that process. See id. Specifically, it does not prescribe how the appeal is to be filed in the circuit court. See id. at ¶ 12. With this background in mind, we examine the three grounds the trial court gave for determining that Mayek had failed to comply with the statute.

1. Summons and complaint as notice of appeal

¶ 6. The district asserts that the summons and complaint did not constitute a notice of appeal and therefore Mayek never served a notice of appeal on the clerk. The district does not identify what the notice of appeal should contain, but suggests that it should be entitled "Notice of Appeal." Mayek counters that the document must only inform that the assessment is being challenged.

¶ 7. WISCONSIN Stat. § 66.30(12)(a) requires only that a "written notice of appeal" be served on the clerk, and does not prescribe the title of the document or what it must state. Because the statute lacks specific direction, we conclude that either party's construction is reasonable and, as such, the statute is ambiguous. See Peterson, 226 Wis. 2d at 633. We therefore construe the statute in Mayek's favor, see id., and hold that serving a summons and complaint challenging the assessment constitutes a notice of appeal.

¶ 8. Mayek reasonably treated his complaint as a notice of appeal and served it on the district's clerk as the method of obtaining service on the district. In Greenville, we noted that:

Certainly, the better procedure is for an aggrieved party to first file its notice of appeal with the circuit court and then serve the notice on the appropriate party — here, the town clerk. Filing first with the circuit court would have created a court file to which the town clerk could transmit the requisite documents. However, as stated, we conclude that the County reasonably interpreted the 90-day limit as applicable to the execution of the bond and service of the notice of appeal on the town clerk, as opposed to limiting the time in which to file the appeal with the circuit court.

Id. at ¶ 12 n.3.

¶ 9. Moreover, Mayek's summons and complaint satisfy one of the purposes of the notice of appeal: to notify the district that the assessment is being appealed. Mayek's documents inform that he was seeking review of the district's decision. Mayek's complaint clearly challenged the special assessment, alleging that the "special assessment is unlawful and without merit." The amended complaint specifically stated that Mayek "appeals the decision of the [district] pursuant to Sec. 66.60(12) Stats." The documents also gave the district more information concerning the dispute than would a notice of appeal that states only that a property owner is appealing an assessment. Further, by filing a complaint, Mayek has initiated an action and the circuit court had a file to house any documents it received from the district.

2. Timeliness of the appeal

¶ 10. The district next contends that because Mayek's initial appeal was premature, it was not timely and must be dismissed. The district also claims that the amended complaint did not save the appeal because it was not timely served on the clerk. Mayek asserts that he served the clerk with the notice of his appeal well within ninety days. In that regard, he contends that he personally knew of the district's adoption of the final resolution on August 12, the date on which he filed his complaint and served the district's clerk with his summons and complaint.

¶ 11. Wisconsin Stat. § 66.60(12)(a) requires that the notice of appeal be served upon the clerk "within 90 days after the date of the notice or of the publication of the final resolution pursuant to sub. (8)(d)...." (Emphasis added.) The notice referred to in § 66.60(12)(a) is not Mayek's personal knowledge, but the copy of the final resolution that the district is required to mail to every interested person under § 66.60(8)(d). The statute thus sets dates certain from which the time limit proceeds rather than a more ephemeral date such as when a property owner knows of the assessment. Moreover, the assessment made in the final resolution is not "legally authorized and made" until the district publishes the final resolution. WlS. Stat. § 66.60(8)(e). The ninety-day period thus does not commence until the district publishes its final resolution or mails notice of the final resolution to interested persons.

¶ 12. The district did not mail or publish the final resolution until after Mayek had served his notice of appeal. Mayek's appeal was therefore served prematurely.

¶ 13. We have termed the ninety-day period in Wis. Stat. § 66.60(12)(a) a period of limitations: A notice served more than ninety days after publication of the assessment is untimely, and a property owner's appeal rights are foreclosed. See Gamroth v. Village of Jackson, 215 Wis. 2d 251, 258-59, 571 N.W.2d 917 (Ct. App. 1997). In Gamroth, we said "parties must strictly comply with § 66.60(12)(a), which establishes a 90-day limit for commencing an appeal of an assessment in the circuit court." Id. at 259. Our courts, however, have not addressed the effect of serving the notice of appeal after having personal knowledge of the governing body's action, but before the date of publication. All of the cases dismissing an appeal for failing to comply with the time limitation in § 66.60(12)(a) have involved a notice of appeal served after the limitation has run. See, e.g., Bialk v. City of Oak Creek, 98 Wis. 2d 469, 473, 297 N.W.2d 43 (Ct. App. 1980); Bornemann v. City of New Berlin, 27 Wis. 2d 102, 109-11, 133 N.W.2d 328 (1965). Those cases are inapposite because Mayek served his notice of appeal on the clerk before the statutory period began, but after Mayek knew the district approved the assessment.

¶ 14. Mayek directs us to Wis. Stat. § 808.04, which he contends evinces a legislative intent to save appeals filed prematurely. The district responds that this section applies only to appeals to the court of appeals, and not special proceedings. We agree with Mayek.

¶ 15. We conclude that the legislature, by enacting Wis. Stat. § 801.01(2), intended that Wis. Stat. § 808.04(8) apply to special proceedings. Section 801.01(2) informs:

Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. Chapters 801 to 847 shall be construed to secure the just, speedy and inexpensive determination of every action and proceeding. (Emphasis added.)

Because Wis. Stat. § 66.60(12) does not address whether a prematurely filed notice of appeal requires that an appeal be dismissed, §808.04(8) controls. Section 808.04(8) provides: "If the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof."

¶ 16. We recognize that Wis. Stat. § 808.04(8) refers only to appeals of judgments or orders, while Wis. Stat. § 66.60 refers to a "final resolution." In special proceedings, however, the "final resolution" is the equivalent of a judgment or order. It is a decision subject to appeal. As such, given Wis. STAT. § 801.01(2)'s directive that the circuit court's procedure and practice in special proceedings be governed by § 808.04(8), we harmonize the statutes in effect to read "final resolution authorizing the levy of a special assessment" into § 808.04(8). See Boatright v. Spiewak, 214 Wis. 2d 507, 522, 570 N.W.2d 897 (Ct. App. 1997) ("Statutes that address the same subject matter must be read together and harmonized to give each statute full force and effect.").

¶ 17. The legislature clearly mandated that Wis. Stat. chs. 801 to 847, which includes ch. 808, govern the procedure and practice in the circuit courts in all special proceedings. Circuit courts function as appellate courts in a number of special proceedings, and the legislature intended that the provisions of ch. 808 apply when a circuit court acts in such a capacity. Otherwise, the legislative direction that ch. 808 govern the circuit court's practice and procedure in certain special proceedings would be meaningless, a result we are to avoid. See State v. Setagord, 211 Wis. 2d 397, 427, 565 N.W.2d 506 (1997) ("Statutes are to be construed to avoid rendering any part of the statute meaningless or superfluous.").

. ¶ 18. Moreover, the instant situation is similar to that addressed by WlS. Stat. § 808.04(8). Subsection (1) provides that an appeal "must be initiated within 45 days of entry of judgment or order appealed from ...." The time limit commences upon the entry of the judgment or order irrespective of the date a party has actual notice of the decision. An appeal initiated before that date is premature. Subsection (8) directs us to treat the prematurely filed appeal as though it has been timely filed. In the special proceeding, Mayek initiated his appeal before the district's mailing or publication of the final resolution, but after he was aware of the district's decision, resulting in a prematurely filed appeal. Applying § 808.04(8) here results in a determination that his appeal was timely.

¶ 19. Our construction also furthers the legislature's purpose. The legislature intended "to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered." Judicial Council Note 1992, WlS. Stat. § 808.04.

¶ 20. Finally, Mayek's "Amended Notice of Appeal" was filed with the court and served on the district's attorney on the eighty-ninth day after publication of the final resolution. Although Mayek did not serve it upon the district's clerk until later, service on the district's attorney was adequate under WlS. STAT. § 801.14(2). Mayek initially served the district's clerk and the district, through counsel, answered the complaint. Section 801.14(2) permitted him to serve the amended pleadings upon the attorney.

3. Service on the clerk

¶ 21. Mayek contends that the district is a separate and distinct governmental body with the power to levy special assessments and, accordingly, it was appropriate to serve its clerk rather than the clerk of a city, town or village as denominated in the statute. The district responds that Wis. Stat. § 66.60(12) required Mayek to serve the clerk of a city, town or village as opposed to the district's clerk and that because he failed to do so the action must be dismissed. Section 66.60(12) by its terms references only service upon the clerk of a city, village or town. The district claims that had the legislature intended service could be made upon a sanitary district's clerk, it would have so provided.

¶ 22. The district's argument proves too much. Using the same reasoning, the district was arguably without power to levy a special assessment under Wis. Stat. § 66.60. Subsection 66.60(l)(a) provides in part:

[A]ny city, town or village may, by resolution of its governing body, levy and collect special assessments upon property in a limited and determinable area for special benefits conferred upon such property by any municipal work or improvement; and may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments.

The district is not a city, town or village, nor is its commission the governing body of a city, town or village. Thus, under the district's narrow construction, it arguably was not authorized to levy the special assessment: Only the Town of Belle Plain's board could levy the assessment.

¶ 23. In any event, Wis. Stat. § 60.77(5)(f) informs on both the district's power to levy the assessment and the appropriate clerk to be served. Section 60.77(5)(f) grants sanitary districts the power to "levy special assessments to finance the activities of the district, using the procedures under s. 66.60." The legislature intended that § 66.60's procedure for levying special assessments apply to sanitary districts. Section 66.60 is to be read in pari materia with § 60.77. See Boatright, 214 Wis. 2d at 522 ("Statutes that address the same subject matter must be read together and harmonized to give each statute full force and effect."). Thus, we read "sanitary district" into § 66.60's references to "cities, towns or villages" to effectuate the legislature's intent.

¶24. Moreover, the legislative scheme contemplates that it is the clerk of the body levying the assessment that is to receive the notice of appeal. WISCONSIN Stat. 66.60(12)(a) provides in part:

The clerk, in case such appeal is taken, shall make a brief statement of the proceedings had in the matter before the governing body, with its decision thereon, and shall transmit the same with the original or certified copies of all the papers in the matter to the clerk of the circuit court.

The governing body here was the sanitary district commission. Its clerk, not that of the Town of Belle Plaine, would have had the information in its possession to comply with the statute's requirement.

CONCLUSION

¶ 25. We determine that Mayek's summons and complaint challenging an assessment constitutes a notice of appeal for purposes of complying with Wis. Stat. § 66.60(12). We conclude that his prematurely served notice of appeal is to be treated as timely filed. Finally, we hold that it was appropriate for Mayek to serve the district's clerk. Accordingly, the order is reversed.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version.

       Mayek apparently paid the cost of having the service extended to his property. He did not contribute toward the cost of the pumping stations and other sanitary system infrastructure that were included in the project.

       Mayek also posted a cash bond with the court. He contends that Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 68, 556 N.W.2d 697 (1996), permitted him to do so and the district did not refute his position. As such, the district admits Mayek complied with this requirement. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 297 N.W.2d 493 (Ct. App. 1979).

       The record does not disclose when, or if, a copy of the final resolution was sent to Mayek as required by WlS. STAT. § 66.60(8)(d).

       Without citation to authority, the district contends that the purpose of a notice of appeal is not to advise the opposing party of the appeal, but rather to allow it to investigate or conduct settlement negotiations before filing a lawsuit. We disagree. Presumably, the time for the district to consider and address the concerns of affected property owners and conduct such additional investigation or modify its plans is after the public hearings it held under WlS. STAT. § 66.60, and not after passing its "final resolution" levying the assessment.

       Wisconsin Stat. § 66.60(8)(d) provides:
      The city, town or village clerk shall publish the final resolution as a classT notice, under ch. 985, in the assessment district and a copy of such resolution shall be mailed to every interested person whose post-office address is known, or can be ascertained with reasonable diligence.

       We assume, because there is no indication in the record, that the-notice of the final resolution was mailed to Mayek contemporaneously with the publication of the final resolution.

       Wisconsin Stat. § 66.60(8)(e) provides:
      When the final resolution is published, all 'work or improvements therein described and all awards, compensations and assessments arising therefrom are deemed legally authorized and made, subject to the right of appeal under sub. (12).

       We recognize that the date of mailing may be different from the date of publication of the final resolution. Because the statute authorizes filing of the notice of appeal from either date without specifying which controls, it appears that the later date would trigger the 90-day period.

       Our decision is in accord with Professor Sutherland's observation on statutory construction:
      General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to mate the general act controlling. (Footnotes omitted.)
      2B Norman J. Singer, Sutherland, Statutory Construction §51.05 (5th ed. 1992).

       Although neither party cites us to Wis. Stat. § 60.77, the district's "Preliminary Resolution" regarding this assessment stated that the district was proceeding under Wis. Stat. §§ 60.77(5)(f) and 66.60.


source: Caselaw Access Project

author: HOOVER, P.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Bruce Phillips, Defendant-Respondent-Cross-Appellant.

    Court of Appeals

      No. 99-3197-CR.

      Submitted on briefs June 12, 2000.

    Decided July 18, 2000.

    2000 WI App 184
    (Also reported in 617 N.W.2d 522.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Mitchell W. Quick and Jorge A. Gomez of, Michael Best & Friedrich LLP of Milwaukee.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   HOOVER, P.J.

¶ 1. The State appeals the circuit court's order dismissing the State's information without prejudice. Bruce Phillips cross-appeals the court's determinations regarding its jurisdiction and binding Phillips over for trial. The appeal and cross-appeal pose three questions: (1) When is a preliminary examination completed for purposes of Wis. Stat. § 971.01(2); (2) Is Wisconsin's prevailing wage law preempted by the Employee Retirement Security Act (ERISA); and (3) Does the evidence support Phillips's bindover for trial. We conclude that (1) the preliminary examination is complete upon the court's decision to bind over; (2) ERISA does not preempt the prevailing wage law; and (3) Phillips was properly bound over for trial. Accordingly, we reverse the dismissal and affirm the circuit court's decisions on preemption and the bindover.

BACKGROUND

¶ 2. Phillips is the president of B.P. Phillips Construction, Inc. Phillips Construction worked on local government construction projects between 1994-97, employing a number of laborers. Phillips allegedly failed to pay several workers the prevailing wage required under WlS. STAT. § 66.293. He also purportedly signed affidavits of compliance for those projects, certifying that prevailing wages had been paid to the laborers.

¶ 3. Phillips was charged with five misdemeanor counts of failing to pay the prevailing wage rate in violation of WlS. Stat. § 66.293, two felony counts for false swearing and one felony count of theft. A preliminary examination was commenced before a court commissioner on July 22, 1999. At the completion of testimony on August 19, the State requested a bindover and Phillips sought dismissal. The court commissioner withheld ruling and indicated that a written decision would be issued regarding the bindover and Phillips's motion. On September 16, the court commissioner issued the decision and order binding Phillips over and denying Phillips's motion. The decision and order were entered on September 17.

¶ 4. On September 24, Phillips moved to dismiss on the grounds that the State failed to timely file an information within thirty days of August 19. On September 29, Phillips also filed a motion challenging the bindover and for reconsideration of his jurisdictional motion based on ERISA preemption. On that same day, the State filed an information. The circuit court arraigned Phillips on September 30 and set a date for hearing his motions.

¶ 5. The circuit court, after the hearing, denied Phillips's preemption motion and challenge to the bindover decision. It dismissed the information without prejudice, however, because it was not filed within thirty days after all the preliminary examination testimony was taken.

DISCUSSION

1. When is the Preliminary Examination Completed?

¶ 6. The State claims that it timely filed the information. Its contention presents a question of statutory interpretation and application of the statute to undisputed facts, questions of law that we review de novo. See Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). The goal of statutory interpretation is to determine and give effect to the legislature's intent. See Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). "Statutes relating to the same subject matter may be considered in construing a statutory provision." CH2M Hill, Inc. v. Black & Veatch, 206 Wis. 2d 370, 378, 557 N.W.2d 829 (Ct. App. 1996).

¶ 7. We turn to Wis. Stat. § 971.01(2):

The information shall be filed with the clerk within 30 days after the completion of the preliminary examination or waiver thereof except that the district attorney may move the court wherein the information is to be filed for an order extending the period for filing such information for cause. Notice of such motion shall be given the defendant. Failure to file the information within such time shall entitle the defendant to have the action dismissed without prejudice. (Emphasis added.)

¶ 8. The question the parties pose is: When is the preliminary examination completed? The State contends that it is complete once the court renders a decision on bindover. Phillips, focusing on the word "examination," contends that the preliminary examination is complete after the last witness has been examined. We agree with the State.

¶ 9. "A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." Wis. Stat. § 970.03(1). The statute therefore refers to the court's examination of the evidence presented to determine whether there is probable cause; not to the examination of witnesses. The preliminary examination is thus not complete until the court finishes scrutinizing the evidence and renders a decision on bindover.

¶ 10. Moreover, Wis. Stat. § 971.01(1) contemplates that a district attorney not make a decision on the charges to be filed in an information until the defendant has been bound over:

The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to s. 970.03 (10), shall file an information according to the evidence on such examination subscribing his or her name thereto. (Emphasis added.)

The legislature thus intended that a district attorney have thirty days from the bindover decision to examine the facts and circumstances to determine what to charge in the information. Here, the State filed the information within thirty days of the bindover decision. Accordingly, we reverse the circuit court's decision dismissing the information.

2. ERISA Preemption

¶ 11. Phillips contends that the court lacks jurisdiction over the charges against him because they are based on the prevailing wage law, which he claims is preempted by ERISA. Federal preemption of a matter deprives a state court of subject matter jurisdiction. See Dykema v. Volkswagenwerk AG, 189 Wis. 2d 206, 210, 525 N.W.2d 754 (Ct. App. 1994). The preemptive effect of a federal law on Wis. Stat. § 66.293 presents a question of law. See Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 33, 563 N.W.2d 460 (1997). We reject Phillips's preemption argument.

¶ 12. Wisconsin's prevailing wage law for municipal projects is set forth in Wis. Stat. § 66.293. The prevailing wage rate is defined in subsec. (l)(g) as:

[T]he hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area.

¶ 13. Under Wis. Stat. § 66.293(3), every local government unit, before making a contract, shall apply to the Department of Workplace Development to determine the prevailing wage rate. Covered employees are to be paid the prevailing wage rate. See Wis. Stat. § 66.293(4). A contractor only has to pay the total prevailing wage. The contractor has the choice to pay the prevailing wages entirely as salary or as a combination of salary and benefits. See Wis. Admin. Code § DWD 290.04(1). The regulations also impose recordkeeping requirements upon the contractor. See Wis. Admin. Code ch. DWD 290.

¶ 14. ERISA is a comprehensive federal statute that regulates employee pension and welfare plans. See 29 U.S.C. §§ 1001-1461. Congress enacted ERISA "to protect plan participants and beneficiaries." Boggs v. Boggs, 520 U.S. 833, 834 (1997). It imposes participation, funding, and vesting requirements for pension plans and sets uniform standards regarding reporting, disclosure, and fiduciary responsibility. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137 (1990). ERISA also provides exclusive remedies for an employer's failure to make fund contributions. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987).

¶ 15. To guarantee uniformity in the enforcement of employee benefit plans by avoiding a multiplicity of regulation, ERISA provides that it "superseded] . . . [s]tate laws [that] relate to . . . employee benefit plan[s]." 29 U.S.C. § 1144(a). The incidence of ERISA preemption turns on the parameters of "relate to." The phrase is not self-defining, and the Supreme Court has concluded that as used in ERISA's preemption provision, "relate to" cannot be read literally. "If 'relate to' were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes preemption would never run its course ...." New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).

¶ 16. The Supreme Court has devised a disjunctive test to determine whether a law relates to ERISA: "A law relate[s] to a covered employee benefit plan for purposes of § 514(a) if it [1] has a connection with or [2] a reference to such a plan." California Div. of Labor Stds. Enforce. v. Dillingham, 519 U.S. 316, 324 (1997) (citations omitted). Earlier decisions portrayed the scope of ERISA preemption as clearly expansive and therefore liberally interpreted the test. See id. Recently, the Court has been more restrictive.

¶ 17. Although the Court still examines whether the state law has a "connection with" or "reference to" ERISA, it has emphasized the "starting presumption that Congress does not intend to supplant state law." Travelers, 514 U.S. at 654. The Court has also warned that unless congressional intent to preempt clearly appears, ERISA will not be deemed to supplant state law in areas traditionally regulated by the states. See Dillingham, 519 U.S. at 325. These cases signaled a significant analytic shift, abandoning strict textualism in favor of an approach consistent with ordinary field and conflict preemption principles. We nevertheless examine whether the prevailing wage law has a "connection with," or "refers to" ERISA because the Court has not yet explicitly abandoned that analytic framework.

A. "Connection with"

¶ 18. Phillips claims that WiS. Stat. § 66.293 has a connection with ERISA because it imposes administrative burdens on the employer by dictating recordkeeping, reporting and compliance requirements. He also asserts that it controls the establishment, structure, and administrative requirements of ERISA governed plans. We disagree.

¶ 19. We determine whether there is a connection between ERISA and WlS. STAT. § 66.293 by looking "to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive," Travelers, 514 U.S. at 656, and to the nature of the effect of § 66.293 on ERISA plans. See Dillingham, 519 U.S. at 325.

¶ 20. Congress stated ERISA's objectives: To "protect . . . the interests of participants in employee benefit plans and their beneficiaries ... by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies . . . ." 29 U.S.C. § 1001(b). Achieving this end requires the avoidance of "a multiplicity of regulation" and, concomitantly, the creation of a climate that "permit[s] the nationally uniform administration of employee benefit plans." Travelers, 514 U.S. at 657.

¶ 21. First, we conclude that Wisconsin's prevailing wage law is one that Congress understood would survive. The prevailing wage law has a long history, existing in one form or another since 1933. See Laws of 1933, ch. 95. Wages are a traditional subject of state concern. See Massachusetts v. Morash, 490 U.S. 107, 119 (1989). Dillingham, while addressing California's apprenticeship training program, also commented generally about prevailing wage laws:

The wages to be paid on public works projects and the substantive standards to be applied to apprenticeship training programs are, however, quite remote from the areas with which ERISA is expressly concerned — reporting, disclosure, fiduciary responsibility, and the like. A reading of [29 U.S.C. § 1144(a)] § 514(a) resulting in the pre-emption of traditionally state-regulated substantive law in those areas where ERISA has nothing to say would be unsettling. Given the paucity of indication in ERISA and its legislative history of any intent on the part of Congress to pre-empt state apprenticeship training standards, or state prevailing wage laws that incorporate them, we are reluctant to alter our ordinary assumption that the historic police powers of the States were not to be superseded by the Federal Act. Accordingly, as in Travelers, we address the substance of the California statute with the presumption that ERISA did not intend to supplant it.

Id. at 331-32 (citations omitted).

¶ 22. Wisconsin Stat. § 66.293, on its face, in no way inhibits the accomplishment of ERISA's overall goals. Contrary to Phillips's assertion, the prevailing wage law only requires the payment of wages. It does not require either payment of or contribution toward any fringe benefit. It mentions fringe benefit contributions only to the extent that hourly contributions toward these benefits are part of the formula used in calculating the hourly prevailing wage rate and whether an employer has paid the total prevailing wage.

¶23. Like California's apprenticeship program in Dillingham, Wis. Stat. § 66.293 does not bind ERISA plans to anything or require an employer to establish an ERISA benefit plan, much less any plan. If an employer chooses to provide no benefits, it is not precluded from obtaining work on public projects; it merely has to pay the benefit portion of the prevailing wage as salary. As such, § 66.293's impact on ERISA is neutral.

¶ 24. Nor does Wis. Stat. § 66.293 interfere with the national administration of employee benefit plans. Although it creates some administrative burdens on contractors, those burdens exist regardless whether the contractor has an ERISA plan. Moreover, regarding uniformity, there is no evidence that § 66.293's effects differ in kind from those that would exist in its absence. Prevailing wages in different states and even in different areas of a state may vary substantially. See Dillingham, 519 U.S. at 332 n.10.

¶ 25. Discerning no impermissible connection, we turn to the second branch of the ERISA preemption analysis: Whether WlS. STAT. § 66.293 refers to covered employee benefit plans so directly as to justify preemption.

B. "Reference to"

¶ 26. Phillips asserts that prevailing wage law impermissibly refers to ERISA because the existence of ERISA is essential to its operation for two reasons. First, he claims that the prevailing wage law "requires contractors to pay a specified amount of fringe benefits [and] [i]n so doing acts immediately upon ERISA plans." Second, Phillips notes that the prevailing wage law uses language virtually identical to that found in ERISA and uses ERISA standards in interpreting its regulations. The Dillingham Court clarified that a state law "refers to" ERISA where the law acts "immediately and exclusively" upon ERISA plans or the "existence of ERISA plans is essential to the law's operation." Id. at 325. We therefore reject Phillips's contentions

¶ 27. Wisconsin Stat. § 66.293 does not act immediately or exclusively upon ERISA plans. Again, § 66.293 does not mandate that employers provide benefits; it only requires that the total prevailing wage be paid. The law does not require an employer to provide any fringe benefits at all, much less set the amount an employer must contribute to any given fund.

¶ 28. We also reject Phillips's assertion that the existence of ERISA plans is essential to Wis. Stat. § 66.293's operation. The Department of Workforce Development's (DWD) administrative rules mention ERISA plans, confirming that in calculating the wages to be paid hourly, contributions for fringe benefits made to a "bona fide fund, plan or program" may be considered part of the formula. See Wis. Admin. Code § DWD 290.01(10)(b). The explanatory notes to that section observe that:

The phrase, "fund, plan or program" is intended merely to recognize the various types of arrangements commonly used to provide economic and fringe benefit through employer contributions. In interpreting this phrase, the department will be guided by the experience of the United States department of labor and United States Treasury department in administering the Employe Retirement Income Security Act of 1974, of the U.S. department of labor in administering other related programs, and of the Wisconsin state insurance commissioner in administering employe welfare funds under ch. 641, Stats.

The language concerning plans is not ERISA-specific, but incorporates any bona fide plan. While recognizing ERISA plans and other arrangements, the prevailing wage law maintains neutrality toward which plans an employer chooses. Merely acknowledging the various arrangements and indicating that the experience of relevant federal agencies will guide the administration of the prevailing wage law does not make ERISA plans essential to Wis. Stat. § 66.293's operation.

¶ 29. Furthermore, the statute treats fringe benefit contributions in exactly the same manner as it treats salary payment. WISCONSIN Stat. § 66.293 neither imposes requirements on ERISA plans nor exempts such plans from otherwise applicable statutory provisions. In operation, therefore, the statute comports fully with ERISA's objectives. Nor does § 66.293 dictate the form a covered plan may take, specify the mode or manner of plan administration, or jeopardize the sort of uniformity that Congress aspired to achieve. We thus conclude that § 66.293 does not impermissibly refer to ERISA.

¶ 30. To sum up, WlS. Stat. § 66.293, gauged by the principles embodied in recent Supreme Court case law, neither singles out ERISA plans for special treatment nor depends on their existence as an essential part of its operation. Rather, the statute is "indifferent to ... ERISA coverage." Dillingham, 519 U.S. at 328. It is properly classified, therefore, as "one of'myriad state laws' of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not 'relate to' them within the meaning of the governing statute." De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 815 (1997). Thus, it does not trigger preemption. See Travelers, 514 U.S. at 656.

¶ 31. Moreover, our decision follows other jurisdictions that hold that ERISA does not preempt prevailing wage statutes that consider the amount of usual benefits in computing the total prevailing wage, but do not require that employers actually make such contributions. See Associated Bldrs. & Contractors v. Perry, 115 F.3d 386 (6th Cir. 1997); Burgio & Campofelice, Inc. v. NYS Dep't of Labor, 107 F.3d 1000 (2d Cir. 1997); WSB Elec. v. Curry, 88 F.3d 788 (9th Cir. 1996); Minnesota Ch. of Assoc. Bldrs. & Contractors v. Minnesota Dep't of Labor & Indus., 47 F.3d 975 (8th Cir. 1995); Keystone Ch., Assoc. Bldrs. & Contractors v. Foley, 37 F.3d 945 (3d Cir. 1994); Ironworkers Dist. Council v. Woodland Park Zoo Planning & Develop., 942 P.2d 1054, 1056-59 (Wash. App. 1999).

¶ 32. Each of these cases holds that prevailing wage statutes that consider the amount of usual benefits but do not require the establishment of benefit programs or benefit payments are not preempted by ERISA because they regulate wages, not benefits. Like the prevailing wage statutes in the above cases, Wisconsin's statute does not prescribe the type of benefit plans or amount of contributions. Most importantly, the employer can comply with the prevailing wage statute without any ERISA plan whatsoever.

¶ 33. The various authorities Phillips cites are inapposite. First, they predate the Supreme Court's decisions in Travelers and Dillingham, which evince the Court's more pragmatic approach to ERISA preemption. Second, several of the cases involve prevailing wage laws that required payment of specific amounts as benefits. See, e.g., GE v. New York State Dept. of Labor, 891 F.2d 25 (2nd Cir. 1989); Construction & Gen'l Laborers' Council v. James McHugh Constr., 596 N.E.2d 19 (Ill. App. 1992).

¶ 34. Phillips also cites a law review comment that suggests Wisconsin's prevailing wage law is preempted by ERISA. See Bradley C. Fulton, Wisconsin's Prevailing Wage Laws: Why They Have Been Preempted By The Employee Retirement Income Security Act, 80 Marq. L. Rev. 269 (1996). The author states that the district court's decision in Associated Bldrs. & Contractors v. Perry, 869 F. Supp. 1239 (E.D. Mich. 1994), is controlling because Michigan's law most closely resembles Wisconsin's law. See 80 Marq. L. Rev., supra at 273. The district court's decision, however, was reversed on appeal at 115 F.3d 386 (6th Cir. 1997). Thus the state law most closely resembling Wisconsin's was held not preempted by ERISA.

3. The Bindover

¶ 35. Phillips claims that the preliminary examination evidence was insufficient to support the bindover. He makes a number of contentions regarding each felony count.

¶ 36. A defendant shall be bound over for trial when the evidence at the preliminary examination is sufficient to establish probable cause that a felony was committed and that the defendant probably committed it. See Wis. Stat. § 970.03(1). A court is not required to state the specific felony committed, nor is the court limited to considering whether the defendant committed the specific felony charged in the complaint. See State v. Burke, 153 Wis. 2d 445, 456, 451 N.W.2d 739 (1990). The court may not choose between competing facts or inferences, but must bind a defendant over for trial when there exists a set of facts that supports a reasonable inference that the defendant probably committed a felony. See State v. Dunn, 121 Wis. 2d 389, 393, 396-97, 359 N.W.2d 151 (1984).

¶ 37. On review our examination is de novo. We review the record ab initio and decide, as a matter of law, whether the evidence constitutes evidence of probable cause. See id. at 398-99. In our review, we examine only whether probable cause exists to believe Philips committed a felony, we need not examine whether probable cause exists to believe Phillips committed each felony charged. See Burke, 153 Wis. 2d at 456-57.

¶ 38. Count eight of the amended complaint charged Phillips with felony theft in connection with the property of Randall Hermans. The State's theory was that Hermans, while in Phillips's employ, had asked for but was not paid the prevailing wage. Therefore, according to the State, Phillips intentionally retained monies belonging to Hermans.

¶ 39. Phillips contends that the preliminary examination evidence was insufficient to bind him over on this charge because the State did not prove that he retained property without Hermans's consent. He contends that to establish a lack of consent, the evidence must demonstrate that consent was not due to one of the factors listed in Wis. STAT. § 939.22(48)(a)-(c). We are unpersuaded.

¶ 40. "Without consent" under WlS. Stat. § 939.22(48) also means "no consent in fact." Hermans testified that after he worked "on the Goodman project," he confronted Phillips and told him that he was not receiving the prevailing wage rate. Phillips told him that "he wasn't going to put me all the way up there" and gave Hermans a raise of "a couple dollars." Hermans also testified that he brought up the issue of his dissatisfaction with the wages he earned in 1994 with Phillips "a few times throughout the years." There was thus sufficient evidence at the preliminary examination to show that Phillips probably retained Hermans's money without consent.

¶ 41. Phillips next claims that the State did not prove the amount of money that he allegedly withheld from Hermans. The record belies Phillips's contention. Hermans testified as to the hours he worked, what his jobs were and what he was paid. Hermans's check stubs recording his pay and hours were introduced into evidence. The prevailing wage rate determination for the Goodman project was also introduced into evidence. From this evidence, the court could determine the amount of money owed to Hermans probably exceeded $11,000. Therefore, probable cause exists to believe a felony was committed, and it is probable that Phillips committed it.

¶ 42. Because we determine that probable cause exists to believe that Phillips committed a felony, we need not address his arguments regarding the false swearing counts. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (only dispositive issues need be addressed).

CONCLUSION

¶ 43. We determine that (1) the preliminary examination is complete upon the court's rendering a bindover decision and therefore the information was timely filed; (2) ERISA does not preempt the prevailing wage law, WlS. STAT. § 66.293; and (3) Phillips was properly bound over for trial. Accordingly, we reverse the dismissal and affirm the circuit court's decisions on preemption and the bindover.

By the Court. — Order affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version.

       Phillips contends that all of the criminal counts should be dismissed because proof of all eight counts is dependent upon proof of the underlying prevailing wage claim obligations. Yet, two of the counts relate to false swearing. Criminal statutes of general application are specifically exempt from ERISA preemption. See 29 U.S.C. § 1144(b)(4). Nowhere does he explain why those counts would be preempted even if the Wis. STAT. § 66.293 charges were. In any event, we need not consider the issue because we determine that ERISA does not preempt § 66.293.

       Wisconsin Stat. § 66.293(4) provides in part:
      [E]mployes shall be paid the prevailing wage rate determined under sub. (3) and may not be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under sub. (3), unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay.

       Indeed, in a concurrence to California Div. of Labor Stds. Enforce. v. Dillingham, 519 U.S. 316 (1997), Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, wrote, "I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict pre-emption. [A]nd except as establishing that, 'relates to' is irrelevant." Id. at 336 (Scalia, J., concurring). In Boggs v. Boggs, 520 U.S. 833 (1997), another ERISA preemption case decided later the same term, the Court relied solely on conflict preemption principles to resolve the case. See id. at 840. The majority found it unnecessary to "inquire whether the statutory phrase 'relate to' provides further and additional support for the preemption claim." Id. The Court also suggested that if conflict preemption had not resolved the case, it would have considered whether the law was preempted under field preemption principles. See id.

       The structure is similar to that Congress used in the Davis-Bacon Act. See 40U.S.C. § 276a-c.

       The regulations credit an employer for:
      [Mlaking payments or incurring costs for bona fide economic or fringe benefits a) identical to, or of the same type as the ones found prevailing by the department and included in the wage determination, or b) not of the type found prevailing by the department, but filed with and regulated by either the United States secretary of labor under the Employee Retirement Income Security Act of 1974, or state of Wisconsin commissioner of insurance under ch. 641, Stats., or by a combination thereof. Before an employer can be given credit for any other unfunded economic or fringe benefit plan, the employer must supply a copy of the plan to the department and comply with all of the other provisions of s. DWD 290.01 (10) (c).
      Wis. Admin. Code § DWD 290.04.

       Phillips refers us to: City of Des Moines v. Master Bldrs., 498 N.W.2d 702 (Iowa 1993); Construction & Gen'l Laborer's Dist. Council v. James McHugh Constr., 596 N.E.2d 19 (Ill. App. 1992); GE v. New York State Dept. of Labor, 891 F.2d 25 (2d Cir. 1989); National Elevator Industry v. Calhoun, 957 F.2d 1555 (10th Cir. 1992); and United Wire, Metal & Machine Health & Welfare Fund v. Morristown Mem'l Hosp., 995 F.2d 1179 (3d Cir. 1993).

       Wisconsin Stat. § 939.22(48) provides:
      "Without consent" means no consent in fact or that consent is given for one of the following reasons:
      (a) Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the victim's immediate family; or
      (b) Because the actor purports to be acting under legal authority; or
      (c) Because the victim does not understand the nature of the thing to which the victim consents, either by reason of ignorance or mistake of fact or of law other than criminal law or by reason of youth or defective mental condition, whether permanent or temporary.

       Phillips complains that a nonexpert testified to the total amount of wages withheld from Goodman. We find no merit to the contention because, as noted, the court could determine the amount due based on the other information provided.


author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Earl L. Murdock, Defendant-Appellant.
    Court of Appeals

      No. 99-0566-CR.

      Submitted on briefs February 11, 2000.

    Decided July 20, 2000.

    2000 WI App 170
    (Also reported in 617 N.W.2d 175.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael R. Kloss, assistant attorney general.
    Before Dykman, P.J., Vergeront and Deininger, JJ.
   DYKMAN, P.J.

¶ 1. Earl L. Murdock appeals from a judgment convicting him of first-degree intentional homicide, two counts of attempted first-degree intentional homicide, criminal trespass to a dwelling and disorderly conduct, all while armed with a dangerous weapon. Murdock initially entered pleas of not guilty and not guilty by reason of mental disease or defect. After he later pleaded no contest to the criminal charges, a jury rejected Murdock's plea of not guilty by reason of mental disease or defect.

¶ 2. Murdock argues that the trial court erred by concluding that he could not waive a jury in the mental responsibility phase of the bifurcated trial without the consent of the State. We disagree and affirm. However, Murdock also contends that he is entitled to a new trial in the interests of justice on the issue of his mental responsibility because there is a substantial probability that a new trial would produce a different result. Considering the evidence as a whole, we agree. Therefore, we grant a discretionary reversal under WlS. Stat. § 752.35 (1997-98) and remand with directions to conduct a new trial on the issue of Murdock's mental responsibility.

I. Background

¶ 3. In the information, Murdock was charged with first-degree reckless homicide, two counts of attempted first-degree intentional homicide, criminal trespass to a dwelling and disorderly conduct, all while armed with a dangerous weapon. The charges arose from an April 22, 1997 rampage which began when Murdock argued with his wife in their home and threatened members of his family with a knife. Mur-dock then went outside and stabbed a neighbor to death. Finally, he forced his way into the home of two other neighbors and stabbed both of them causing serious injuries. Murdock initially entered pleas of not guilty and not guilty by reason of mental disease or defect.

¶ 4. The State filed an amended information, replacing the charge of first-degree reckless homicide with a charge of first-degree intentional homicide. Murdock again entered pleas of not guilty and not guilty by reason of mental disease or defect to the amended information. Murdock also indicated that he wanted to have a trial to the court instead of a jury on both the guilt and the responsibility phases of the bifurcated trial, but the State was not willing to consent to the jury waiver under Wis. Stat. § 972.02(1). Murdock then filed a motion to compel jury waiver, arguing that § 972.02(1) did not apply to the responsibility phase of a bifurcated trial because the responsibility phase was not criminal in nature. Before the trial court decided his motion, Murdock entered no contest pleas to the five criminal charges. The court found Murdock guilty of the charges in the amended information, but stayed entry of the judgment of conviction until completion of the responsibility phase. The court later denied Murdock's motion to compel jury waiver, concluding that consent of the state was required to waive a jury in the responsibility phase under § 972.02(1).

¶ 5. Beginning on January 20, 1998, the trial court held a three-day jury trial on the issue of Mur-dock's mental responsibility. After the opening statements, the court read a set of stipulated facts to the jury. The court stated that Murdock's wife had known him for twenty years before the stabbings, and that, for nineteen of those years, Murdock had been taking medication for mental health problems. On April 22, 1997, Murdock had not been taking his medication and, when his wife returned home in the evening, they began arguing. During the arguments, Murdock would retreat to his room and come back out, holding his head and stating: "They won. They won." In one of his trips into his room, he picked up a knife. He told his wife: "I'm going to have to hurt somebody. . . . Today was a really bad day. I'm going to have to hurt somebody." Murdock began waving the knife around and threatening his family, including two young children, with it. Murdock's family ran from their apartment to a neighbor's downstairs apartment. Mur-dock followed his family downstairs and demanded that they come out from hiding. When they did not, Murdock left.

¶ 6. In the meantime, Norbert Grams, Jr., had left home to get a pack of cigarettes. The next anyone saw of Murdock, he had parked Grams's station wagon in front of Shirley and Edwin Smith's house and was dragging Grams's body from the back seat of the car. Murdock had stabbed Grams approximately twenty times. Grams was still alive when Murdock pulled him from the car. He tried to crawl away, but died shortly thereafter. Murdock then forced his way into the Smiths' house and demanded money. Shirley Smith told the police that Murdock "went berserk stabbing" the Smiths. When she dialed 911, Murdock knocked the phone from her hand, but the police quickly arrived.

¶ 7. After the trial court read the stipulated facts, two medical experts testified: Dr. Smail, a court-appointed psychologist, and Dr. Palermo, a psychiatrist hired by the defense. Smail concluded that Murdock suffered from a schizoaffective disorder that caused him to lack substantial capacity to appreciate the wrongfulness of his acts and to conform his behavior to the requirements of the law. Smail stated that he believed that Murdock was in an agitated psychotic state throughout the incidents on April 22, 1997, even though he behaved normally at several points. Smail based his conclusion on an interview with Murdock, on the criminal complaint and police reports, and on Mur-dock's mental health records for the ten to twelve years prior to the incident that were provided by the defense.

¶ 8. Smail also explained that after Murdock was arrested and brought to jail, he was seen by a doctor who classified Murdock as being psychotic and prescribed psychotropic medication. On April 24, 1997, Murdock was in such an agitated psychotic state that he was placed in leather restraints. Smail acknowledged that Murdock's mental health history included drug and alcohol abuse. However, he pointed out that there was no evidence that Murdock had used drugs on April 22, 1997. In addition, although Murdock had some alcohol earlier in the day on April 22, the police reports gave no indication that Murdock was intoxicated, and Murdock's recovery from his agitated state took much longer than it should have if it was caused by intoxication. Finally, Smail stated that he did not think that Murdock was malingering, but instead was genuinely mentally ill.

¶ 9. Dr. Palermo also testified that, at the time of the offenses, Murdock did not have the mental capacity to distinguish right from wrong, to appreciate the nature of his actions, and to conform to the requirements of the law. He stated that Murdock was suffering from schizophrenia, paranoid/catatonic type, with occasional destructive homicidal excitement. Palermo based his conclusions on an interview with Murdock, and a review of the police reports, county jail records, and the medical history documents provided by the defense. Palermo said that, at the time Murdock demanded money from the Smiths, he knew he had done something wrong and wanted to run away. However, Palermo said such behavior was consistent with his conclusion regarding Murdock's mental state because a person in Murdock's state could be temporarily shocked back into reality by the realization of what he or she had done. Palermo ruled out alcohol use as the cause of Murdock's behavior because Murdock had only had alcohol in the morning before his rampage. Palermo also explained that he ruled out use of drugs, such as angel dust, that might cause strange behavior, because such drugs would cause effects for thirteen or fourteen hours and then be washed out of a person's system, which was not consistent with Murdock's behavior.

¶ 10. Murdock's mother and brother also testified. Murdock's mother said that she remembered him having mental health problems since 1983. She described a time in 1986 when Murdock came to visit her. He kicked down her door with a wild look in his eyes. Without saying anything he went straight to her kitchen, found a hammer and attacked her with it. Her boyfriend tackled Murdock, but Murdock began choking him until Murdock's mother was able to grab the hammer and knock Murdock out with it. Murdock's mother and her boyfriend ran, but Murdock quickly caught up with them after waking up and asked his mother, "Mama, who is behind you. Who's hurting you?" Murdock's mother said that he was hospitalized after the incident. She also said that Murdock had come to visit her in Chicago on April 21, 1997, with a strange look in his eyes, but would not respond to her questions and quickly turned around and left. Mur-dock's brother testified that he was also at his mother's house when Murdock visited on April 21. He said that Murdock had a weird stare, but that he did not think Murdock was under the influence of drugs or alcohol at the time.

¶ 11. Edwin Smith also testified. Smith described the night that Murdock attacked him and his wife. Smith said that, before the attack, he had had little interaction with Murdock, but had no personal disagreements with him. Smith also stated that any time he saw Murdock outside, Murdock had a can of beer in his hand.

¶ 12. Finally, three police officers testified. Officer Santiago, a plain-clothes officer, explained that he was the first to arrive on the scene of the stabbings. He found Murdock sitting on the Smiths' front steps near Grams's dead body. When he saw that Murdock had a knife, Santiago drew his gun and asked Murdock to drop the knife. Murdock refused and Santiago tried to negotiate with him. When uniformed officers arrived, Murdock stood up and sat down several times. He then ran up to the top of the Smiths' porch and came back and sat down several times. Eventually, Murdock ran into the Smiths' house, but soon came back outside again. When Murdock ran back into the house again, Santiago tried to negotiate with him through the closed door. When Murdock finally opened the door, Santiago and several other officers pushed their way into the house, and Murdock ran to the basement.

¶ 13. Detective Schuster testified that he arrived on the scene after Santiago. Schuster and another officer pried open a basement window in the Smiths' house and waited outside in case they needed to use the window as an alternate entrance to the house. Schuster soon saw Murdock climbing down the stairs into the basement. Schuster told him to stay where he was, but Murdock climbed out the basement window. Schuster then arrested Murdock after subduing him with the help of three or four other officers. Schuster said that Murdock was transported to jail because he did not do or say anything indicating that he should have been transported to a mental health facility.

¶ 14. Detective Koceja testified that he interviewed Murdock once he was in custody. Koceja said that he explained to Murdock what he had been charged with and began to ask him questions. Murdock asked whether he was going to go home that night. Murdock told Koceja that he went crazy, but Koceja said that Murdock did not give any indication during the interview that he should be brought to a mental health facility.

¶ 15. In his closing argument, the district attorney argued that Murdock's history was not one of mental illness, but one of "manipulation and angry, aggressive drug and alcohol abuse." The district attorney argued that the incidents surrounding April 22, 1997, were just another example of Murdock's anger and an attempt by Murdock to escape responsibility for venting his anger. The district attorney pointed out that Drs. Smail and Palermo did not agree on the type of mental disorder from which Murdock suffered. He also pointed out that Palermo indicated that Murdock knew what he was doing. The district attorney argued that the stabbings were not the result of mental illness, but of an irrational display of anger and frustration. He pointed out that Murdock did not actually harm his family and that his actions were all logical if viewed as part of a criminal outburst of anger. Once Murdock realized he had done something seriously wrong, he began to scheme a way out. The district attorney asserted that all of Murdock's behavior could be explained as resulting from anger and from Murdock's desire to avoid responsibility for his actions. The district attorney told the jury not to be fooled and not to allow Murdock to escape responsibility for his anger one more time.

¶ 16. The jury concluded that Murdock suffered from a mental disease at the time of the crimes, but that he did not lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The trial court denied Murdock's motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial. The court sentenced Murdock to life in prison for the homicide. It imposed concurrent terms of fifteen months for the disorderly conduct, fifteen months for the criminal trespass, and forty years for each of the attempted homicides, all to be served consecutively to the life term. Murdock appeals.

II. Analysis

A. Jury Waiver

¶ 17. Murdock argues that the trial court erred in determining that he could not waive a jury in the responsibility phase of the bifurcated trial without the consent of the state. He points out that, in State v. Koput, 142 Wis. 2d 370, 395, 418 N.W.2d 804 (1988), the supreme court held that in bifurcated proceedings, "the responsibility phase is not a part of a 'criminal' trial." Since the responsibility phase is not criminal, Murdock contends that Wis. Stat. § 972.02(1) should not apply.

¶ 18. In order to determine whether the consent of the state is required for a jury waiver in the responsibility phase, we must interpret Wis. Stat. § 972.02(1) and apply it to the statute setting forth the trial procedure when a defendant enters a plea of not guilty by reason of mental disease or defect. The interpretation and application of statutes present questions of law that we review de novo. See State v. Hughes, 218 Wis. 2d 538, 543, 582 N.W.2d 49 (Ct. App. 1998). When we interpret a statute, our purpose is to ascertain the intent of the legislature and give it effect. See State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). Our first step is to examine the language of the statute and, absent ambiguity, give the language its ordinary meaning. See id. at 225-26. If the language is ambiguous, we examine the scope, history, context, subject matter, and purpose of the statute in order to determine the legislative intent. See id. at 226. "Statutory language is ambiguous if reasonable people could disagree as to its meaning." Id. Ambiguity can be found in the words of a statutory provision itself, or in the words of the provision. "as they interact with and relate to other provisions in the statute and to other statutes." State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997).

¶ 19. Wisconsin Stat. § 972.02(1) unambiguously states that "criminal cases shall be tried by a jury . . . unless the defendant waives a jury . . . with the approval of the court and the consent of the state." However, § 972.02(1) is ambiguous in its interaction with Wis. Stat. § 971.165, the statute setting forth the trial procedure when a defendant enters a plea of not guilty by reason of mental disease or defect. Section 971.165(l)(a) provides that "[tjhere shall be a separation of the issues with a sequential order of proof in a continuous trial. The plea of not guilty shall be determined first and the plea of not guilty by reason of mental disease or defect shall be determined second." Based on that language, it would be reasonable to conclude that the guilt phase and the mental responsibility phase remain a part of a continuous trial such that § 972.02(1) applies to both phases. However, one could reasonably argue that since the issue of criminal guilt is separated from the issue of mental responsibility, § 972.02(1) should apply only to the criminal guilt phase of the trial Therefore, we must extend our inquiry beyond the language of §§ 972.02(1) and 971.165(l)(a) to determine whether the legislature intended to require the consent of the state for a jury waiver in the responsibility phase of a bifurcated proceeding.

¶ 20. We do not agree that Koput establishes that Wis. Stat. § 972.02(1) does not apply to the responsibility phase. In Koput, the supreme court held that a unanimous jury verdict was not required on the issue of a defendant's mental responsibility. 142 Wis. 2d at 374. However the court did not clearly establish that the responsibility phase is sufficiently removed from the overall criminal proceedings such that § 972.02(1) should not apply. The court explained that the phases of a bifurcated trial serve different purposes, as the first phase settles the issue of criminal guilt while the responsibility phase is dispositional in nature. See id. at 388-89. However the court also stated:

Clearly, at one time when the burden of proving sanity was on the state and a unanimous finding of sanity was required, the "proceeding" was criminal. Hence, to some degree, in its ancestry at least, it is not completely divorced jurisgenetically from its antecedents. We, therefore, will not denominate it a civil proceeding. Rather, it is a special proceeding in the dispositional phase of a criminal proceeding — a proceeding that is not criminal in its attributes or purposes.

Id. at 397. Upon examining the background of the requirement of state consent for a jury waiver in criminal cases and of the bifurcated trial in Wisconsin, we are not satisfied that the "special proceeding" of the responsibility phase is so divorced from the criminal case that § 972.02(1) does not apply.

¶ 21. The requirement of state consent to a jury waiver in criminal cases was first established in Wisconsin in 1949. See Laws of 1949, ch. 631, § 120. The statute providing for state consent was based on Rule 23(a) of the Federal Rules of Criminal Procedure. See 1949 S.B. 474 and Senate Amendment 5. Thus, the United States Supreme Court cases addressing the requirement of government consent to jury waiver are instructive regarding the interpretation of WlS. Stat. § 972.02(1). In Patton v. United States, 281 U.S. 276, 312 (1930), the Court upheld the power of a criminal defendant to waive a trial by jury, but explained:

[W]e do not mean to hold that the waiver must be put into effect at all events. That, perhaps, sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.

¶ 22. In Singer v. United States, 380 U.S. 24, 26 (1965), the Court upheld the constitutionality of Federal Rule 23(a). The Court further explained the basis for requiring government consent before allowing a criminal defendant to waive a jury:

A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.

Id. at 36.

¶ 23. Wisconsin's system of using a bifurcated trial in cases in which the defendant enters a plea of not guilty by reason of mental disease or defect was developed by the supreme court in 1967. In State ex rel. La Follette v. Raskin, 34 Wis. 2d 607, 614, 618, 150 N.W.2d 318 (1967), the supreme court addressed the statute that, at the time, established that pleas of not guilty and pleas of not guilty by reason of insanity were to be tried concurrently and not in a split trial. See also Wis. Stat. § 957.11(1) (1967). In order for the statute to comply with due process, the court held that a defendant was entitled to a sequential order of proof on the issues of guilt and insanity in the trial so that inculpa-tory statements made in a compulsory mental examination would not be disclosed to the jury before it decided the issue of guilt. See Raskin, 34 Wis. 2d at 623-27. In 1969, the legislature codified the bifurcated trial procedure established in Raskin in Wis. Stat. § 971.175. See Laws of 1969, ch. 255, § 63. In 1987, the legislature replaced § 971.175 with Wis. Stat. § 971.165, expanding the rules to be followed in cases where the defendant pleads not guilty by reason of mental disease or defect, but maintaining the basic bifurcated trial procedure with its sequential order of proof as first established in Raskin. Compare 1987 Wis. Act 86 with Wis. Stat. § 971.175 (1985-86).

¶ 24. In Koput, the supreme court explained that Wisconsin's system of having a single, bifurcated trial developed only because the court in Raskin was constrained by the then-existing statute requiring a single trial for pleas of not guilty and not guilty by reason of insanity:

It was only the constraint of the then existing statute that led to the present sequential procedure. Raskin clearly states that the issues are independent and should be separately tried. There is no intimation that both issues are to be resolved by criminal trials. Indeed, Raskin makes it clear they are not, that each determination is separate and independent. Our present sequential trial is merely a method of insuring due process, while allowing this court in 1967 to adhere to the extent possible to the existing statutory requirement of a unitary trial. But this deference to the legislature, then, should not be construed to mean that both phases are but divisions of a single criminal trial. They are not. Raskin makes that clear.

Koput, 142 Wis. 2d at 394. While Koput suggests that, in Wisconsin, the mental responsibility phase could have evolved as an entirely separate proceeding from the guilt phase, the fact remains that it has not. The statutes governing the procedures for trying pleas of not guilty by reason of mental disease or defect have kept the responsibility phase and guilt phase attached in procedure even as they are detached in nature and purpose. See id. at 390.

‘ ¶ 25. Considering that the responsibility phase has not been procedurally removed from the criminal proceedings, as Koput suggests it could have been, we must examine whether the nature of the decision made in the responsibility phase is such that Wis. Stat. § 972.02(1) should not apply. In Steele v. State, 97 Wis. 2d 72, 96, 294 N.W.2d 2 (1980), the supreme court explained the nature of that decision:

Whether or not there should be criminal responsibility is essentially a moral issue. Is it just, in light of the ethics and standards of our society, to hold a person who is insane accountable for what has been done. To make that determination requires no fine tuning. It is, rather, a gross evaluation that a person's conduct and mental state is so beyond the limits of accepted norms that to hold him criminally responsible would be unjust.

¶ 26. Based on the background of Wis. Stat. § 972.02(1) and on the nature of the decision made in the responsibility phase, we conclude that § 972.02(1) applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. In Patton, 281 U.S. at 312, the Supreme Court explained that the requirement of government consent for jury waiver was justified by the historic importance of the jury as fact finder in criminal cases. In Singer, 380 U.S. at 36, the Court further explained that, under the Constitution, the jury is the most fair decision maker in criminal cases, and that the government, as a litigant, has a legitimate interest in seeing criminal cases tried before the fairest decisionmaking body. We conclude that the State also has a legitimate interest in having the decision of mental responsibility decided by a jury. In the responsibility phase, the jury is not acting as a fact finder, but as a moral decision maker. It must apply the "ethics and standards of our.society" to determine whether a defendant should be held responsible for criminal activity. The State has an interest in seeing that decisions on mental responsibility be in line with the standards of the community, and the views of a group of jurors are usually more likely to reflect the conscience of their community than the opinion of a single judge. Thus, it is appropriate that a defendant's right to dispense with a jury in the responsibility phase be limited by the requirement of the State's consent.

¶ 27. We also consider it important that the legislature has not created detached proceedings for the determinations of guilt and mental responsibility, as Koput suggests it could have. The statute setting forth the procedures for both the guilt phase and the responsibility phase is a part of the chapter on criminal procedure. See WlS. STAT. ch. 971. A defendant can only be found not guilty by reason of mental disease or defect if he or she first admits to criminal conduct or is found guilty. See Wis. Stat. §§ 971.06(l)(d) and 971.165(l)(d). Although Koput demonstrates that the decision made in the responsibility phase is not criminal in nature, it remains a part of the criminal case in general.

¶ 28. Murdock argues that, if the jury serves to protect a defendant from the power of the state, the defendant should be able to waive the right to a jury on the issue of mental responsibility without the consent of the state. However, such an argument is equally applicable to the issue of jury waiver on the question of guilt. In Singer, 380 U.S. at 36, the Supreme Court held that the government has an interest in having a jury decide the question of guilt, such that the defendant cannot waive a jury without the government's consent. We find Murdock's argument no more persuasive when the jury is to decide the issue of mental responsibility rather than the issue of guilt. Murdock also contends that requiring a jury trial in the responsibility phase only if requested by the defendant would be consistent with the procedure for involuntary corn-mitments in Wis. Stat. § 51.20. However, we do not agree that the procedure followed in cases of civil commitments should bear on the procedure to be followed in criminal cases.

¶ 29. Finally, Murdock asserts that dispositional issues, such as sentencing, have historically been decided by courts, and since the issue of mental responsibility is part of the dispositional phase of a criminal case, it should not be decided by a jury. We disagree. As the supreme court stated in Koput, the responsibility phase "is a special proceeding in the dispositional phase." 142 Wis. 2d at 397 (emphasis added). As the responsibility phase is a "special proceeding," comparison to other dispositional proceedings is not necessarily helpful. In this case, we have concluded that it is appropriate to require the consent of the state before a defendant can waive a jury on the issue of mental responsibility.

B. Discretionary Reversal

¶ 30. Murdock argues that we should grant a discretionary reversal in the interests of justice under Wis. Stat. § 752.35, and remand for a new trial in the responsibility phase. He contends that justice has miscarried because the jury's verdict in the responsibility phase was against the weight of the evidence presented at trial.

¶ 31. Under Wis. Stat. § 752.35, we may grant a discretionary reversal if the real controversy has not been fully tried or if it is likely for any reason that justice-has miscarried. See State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745 (1985), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). In this case, Murdock contends only that justice has miscarried. We may conclude that justice has miscarried if we determine that there is a substantial probability that a new trial would produce a different result. See State v. Darcy N. K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998).

¶ 32. Four supreme court opinions establish the standards by which we will address Murdock's request for a discretionary reversal. In the first case, Kemp v. State, 61 Wis. 2d 125, 138, 211 N.W.2d 793 (1973), the court granted a new trial in the interests of justice on the issue of mental responsibility. In contrast, in Pautz v. State, 64 Wis. 2d 469, 479, 219 N.W.2d 327 (1974), Schultz v. State, 87 Wis. 2d 167, 172, 274 N.W.2d 614 (1979), and State v. Sarinske, 91 Wis. 2d 14, 49-50, 280 N.W.2d 725 (1979), the court upheld the jury or trial court's conclusion that the defendant had not met his burden of proving that he was not guilty by reason of mental disease or defect.

¶ 33. In Kemp, 61 Wis. 2d at 134, Donald Kemp was treated intermittently for mental and emotional problems related to his service in Vietnam. One night, while in bed with his wife, Kemp dreamt that he was being attacked by the Viet Cong. See id. Kemp slept with a gun under his pillow, and said that he killed some of the Viet Cong in his dream and was awakened by the gun shots to find his wife next to him. See id. The next day, he took his two children to California for three days, and when they returned to Wisconsin, Kemp checked into a hotel instead of returning home. See id. at 131-32. Kemp's wife's body was found in their bed in their apartment, with two bullet wounds caused by Kemp's gun. See id. at 128-29, 132. When Kemp was informed of his wife's death he appeared emotionally upset, but said that he had no recollection of the past several days. See id. at 132.

¶ 34. Six psychiatrists testified at Kemp's trial. See id. at 135. The defense psychiatrist and two court-appointed psychiatrists concluded that Kemp lacked the mental capacity to be held responsible for killing his wife. See id. Two psychiatrists hired by the state would not express an opinion. See id. A third state psychiatrist testified that Kemp may have lacked capacity, but believed that no one could state for certain whether he lacked capacity because of the variables of alcohol abuse and a possible marital dispute. See id. The jury concluded that Kemp did not have a mental disease such that he lacked capacity to be held responsible. See id. at 127 — 28.

¶ 35. The supreme court granted a new trial in the interests of justice because a new trial would probably result in a different outcome on the issue of mental responsibility. See id. at 138. The court concluded that the evidence as a whole predominated heavily on Kemp's side. See id. The court acknowledged that Kemp bore the burden of demonstrating lack of capacity, and that the jury was to resolve the credibility of the witnesses and whether Kemp had met his burden. See id. at 137. However, the court pointed out that Kemp had a history of mental health difficulties, that three experts testified that he lacked capacity while no-one unequivocally testified that he did not lack capacity, and that there was no evidence of a marital disagreement before the shooting. See id. at 136-38.

¶ 36. In Pautz, 64 Wis. 2d at 471, Dale Pautz, who was then sixteen, stabbed and killed his stepmother and five-year-old stepbrother. At trial, two court-appointed medical experts testified that Pautz lacked capacity to conform his conduct to the requirements of the law. See id. at 473. However, the jury concluded that, while Kemp lacked capacity when he killed his stepbrother, he did not lack capacity when he killed his stepmother. See id. at 471.

¶ 37. The supreme court upheld the verdict, concluding that it was reasonable and that there was no need for a new trial in the interests of justice. See id. at 479. The court explained that the jury had several grounds on which it could have rejected the expert testimony: Pautz provided a detailed confession in which he described how he planned his stepmother's murder; the story Pautz told the medical experts conflicted with the account he gave in his confession; the experts did not examine Pautz until four months after the incident and based their opinions on information provided almost entirely by Pautz; and, Pautz told the experts that he wanted to get off with a light sentence. See id. at 476-77. The court also stated that, unlike in Kemp: Pautz had no history of mental illness; Pautz's alleged mental disorder did not match the nature of the crime; and, Pautz was able to recall what happened and signed a detailed confession indicating that he intended to kill his stepmother. See id. at 479.

¶ 38. In Schultz, 87 Wis. 2d at 170, after Irvin Schultz's wife began divorce proceedings, he visited a psychiatrist who diagnosed him as mentally ill and placed him on medication. Several months later, Schultz shot and killed his wife. See id. At trial, two psychiatrists and one psychologist appeared for the defense and testified that Schultz lacked mental capacity at the time he shot his wife. See id. at 170-71. The state presented one psychiatrist, who testified that Schultz exaggerated his mental health problems and did not lack the mental capacity to appreciate what he had done or to conform his behavior to the requirements of law. See id. at 171-72. The supreme court upheld the trial court's determination that Schultz should not be relieved of responsibility for shooting his wife. See id. at 169. The court pointed out that, unlike in Kemp, a medical expert testified that Schultz did not lack mental capacity at the time of the offense. See id. at 174.

¶ 39. Finally, in Sarinske, 91 Wis. 2d at 24 — 26, Roger Sarinske shot and killed his wife's lover after finding her with him. At trial, the two medical experts presented by the defense testified that Sarinske lacked mental capacity to appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the law. See id. at 48. However, the state's medical expert testified that Sarinske was not suffering from mental disease or defect. See id. The supreme court upheld the jury's conclusion that Sarinske did not carry his burden of showing that he lacked capacity to be held responsible. See id. at 49. The court explained that the jury was free to disbelieve the defense experts entirely, "and even if the state declines, as it did in Pautz, to present any experts in rebuttal, the accused may fail to satisfy his [or her] burden of affirmatively proving that he [or she] was suffering from mental disease." Id. at 48-49. The court stated that the defense experts substantially relied on information provided by Sarinske, and that the jury could question their opinions on that ground alone. See id. at 49. Finally, the court pointed out that, unlike in Kemp, Sarinske had no history of mental illness and one expert testified that Sarinske did not have a mental disease or defect. See id.

¶ 40. We conclude that we should grant a new trial in the interests of justice on the issue of Murdock's mental responsibility. Considering the evidence presented at trial, there is a substantial probability that a new trial in the responsibility phase would produce a different result. As in Kemp, the evidence as a whole predominated heavily on Murdock's side. Like Kemp, Murdock has a history of mental illness, punctuated by at least one other unexplained outburst of violence, as seen in his 1986 attack on his mother, and there was evidence that Murdock had not been taking his medication on the day of the stabbings. The only two medical experts presented at trial testified that Murdock lacked the capacity to appreciate the wrongfulness of his acts and to conform his behavior to the requirements of law. Unlike in Schultz and Sarinske, there was no conflicting expert testimony. There was also evidence that a third doctor diagnosed Murdock as psychotic and prescribed medication after he was arrested and that, in his second day in jail, Murdock was in such a psychotic state that he was placed in restraints. Murdock's mother and brother testified that Murdock visited them on the day before the stabbings, but had behaved strangely and been unresponsive.

¶ 41. As in Pautz, the jury was free to disbelieve the only two experts who testified and conclude that Murdock did not carry his burden of proof. However, unlike in Pautz, the jury in Murdock's case had no basis on which to do so. Although the mental health records reviewed by Drs. Smail and Pálermo were provided by the defense, there was no evidence that those records were inaccurate. In addition, the doctors also based their opinions on police reports, the criminal complaint, jail records and a personal interview with Murdock. Despite the district attorney's assertions in his closing argument, there was no evidence that Mur-dock was exaggerating his mental illness simply to avoid criminal responsibility. Although he has a history of alcohol use, there was no evidence that Murdock was intoxicated at the time he stabbed Grams and the Smiths.

¶ 42. The State points out that, unlike in Kemp, Murdock was able to recall the incidents leading to his arrest. It argues that Murdock's ability to remember what happened provided a reasonable basis for the jury to reject his assertion that he lacked mental responsibility. We disagree. In Kemp, the fact that Kemp did not recall the days surrounding his wife's death was not crucial to the supreme court's decision to grant a new trial in the interests of justice. More important was Kemp's history of mental illness, the fact that no expert contradicted the expert testimony that Kemp lacked capacity, and the lack of evidence of other explanations for Kemp shooting his wife. See Kemp, 61 Wis. 2d at 136-38. Considering the evidence as a whole, Murdock's memory of the events did not provide a sufficient basis for the jury to reject his defense of lack of mental capacity.

¶ 43. Finally, the State contends that a reasonable jury could conclude that Murdock's behavior on April 22, 1997, was purposeful, demonstrating that he understood the wrongfulness of his actions and could have conformed his behavior to the requirements of law. As examples, the State points out that Murdock tried to prevent Shirley Smith from calling the police and, when the police arrived, Murdock attempted to elude capture. The State argues that, instead of concluding that Murdock was unable to control his violent behavior or to realize its wrongfulness, the jury could have concluded that Murdock stabbed Grams in order to steal his car and then attacked the Smiths in search of money.

¶ 44. We do not agree with the State's characterization of Murdock's behavior. The evidence presented at trial presents no explanation for why Murdock would stab Grams approximately twenty times in order to steal his car, but then park the car in front of the Smiths' house, drag Grams out of the back of the car and leave him in the Smiths' front yard. Although Murdock demanded money from the Smiths, tried to prevent Shirley Smith from calling the police, and fled to the basement when the police came in the house after him, viewed as a whole, his behavior does not appear as purposeful as the State contends. After demanding money from the Smiths, Murdock "went berserk stabbing" them. When the first police officer arrived, Murdock was sitting on the Smiths' front steps near Grams's dead body. Murdock did not try to flee, but instead stood up and sat back down on the steps, and went in and out of the house several times. He even opened the door to the Smiths' house so that the police could come inside. In addition, as Dr. Palermo explained to the jury, the fact that Murdock appeared to be behaving rationally in some instances does not mean that he was generally able to control his behavior or appreciate its wrongfulness.

¶ 45. We need not determine whether a reasonable jury could find that Murdock's behavior was sufficiently rational to conclude that Murdock did not meet his burden of showing a lack of mental capacity. Considering all of the evidence presented at trial, and considering that Murdock's behavior as a whole is not as purposeful as the State contends, we conclude that there is a substantial probability that a new trial would produce a different result.

III. Conclusion

¶ 46. For the reasons we have discussed, we affirm the trial court's determination that consent of the State is required for a jury waiver in the responsibility phase of a bifurcated trial under WlS. Stat. § 972.02(1). However, under Wis. Stat. § 752.35, we grant a discretionary reversal on the issue of Mur-dock's mental responsibility because we conclude that it is likely that justice has miscarried. We remand with directions to conduct a new trial only on the issue of Murdock's mental responsibility. See Wis. Stat. § 971.165(l)(c)3.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 972.02(1) (emphasis added) provides:
      Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

         Koput was based, in part, on Wis. Stat. § 971.175, the statute governing the procedures for a bifurcated trial at the time. 142 Wis. 2d 370, 385, 418 N.W.2d 804 (1988). 1987 Wis. Act 86 repealed §971.175 and replaced it with Wis. Stat. § 971.165. Section 971.165(2) provides that a jury verdict on the issue of mental responsibility is valid if agreed to by five-sixths of the jurors, as decided in Koput, 142 Wis. 2d at 374.

       Federal Rule 23(a) provides: "Trial by jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."

       1949 Senate Bill 474 initially required only the approval of the court, but Amendment 5 added the requirement of the consent of the state.

       Wisconsin Stat. § 752.35 provides:
      Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.