author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bruce E. Black, Defendant-Appellant.

    Court of Appeals

      Nos. 99-1686-CR, 99-1687-CR, 99-1688-CR, 99-1689-CR.

      Submitted on briefs March 28, 2000.

    Decided July 12, 2000.

    2000 WI App 175
    (Also reported in 617 N.W.2d 210.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. This case presents the following issue: When a person provides oral identification to a police officer conducting a Terry stop and requesting identification, may the officer perform a limited search for identifying papers when the information provided is not confirmed by police records? We conclude that under State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979), an officer may perform such a search given the present circumstances. The frisk for identification here was limited to a wallet or other repository for identifying papers. The intrusion upon the suspect was minimal and, we are persuaded, outweighed by the officer's observation of the suspect's bulging pockets and the officer's experience with persons who claim not to carry identification when in fact they do. We affirm the circuit court's judgments.

BACKGROUND

¶ 2. The facts are undisputed. On October 3, 1997, at approximately 6:30 p.m., City of Fond du Lac Police Detectives Pat Primising and Steve Kaufman were conducting surveillance at the scene of a drug investigation when they were directed to follow a black Ford Tempo away from the area. The car eventually stopped at a tavern where several occupants exited the vehicle and conversed with tavern patrons while Bruce E. Black approached the driver's side and apparently exchanged something with the driver. The detectives were unable to see what was exchanged. At that time a uniformed bicycle patrolman, Officer Lee Mikulec, arrived at the scene, and the Tempo drove away as the bystanders and Black dispersed. The detectives did not see Black carrying anything at this time.

¶ 3. As the detectives drove off to follow the Tempo, they radioed Mikulec to have Black "checked out" for his identification. The detectives gave a physical description of Black, noting what he was wearing and that he was a "black male." The detectives then saw Black speaking with a young man whom the detectives had previously observed holding paper or money in his hand and yelling at the Tempo, after which an exchange had also occurred. The detectives suspected that Black and the occupants of the Tempo had engaged in drug transactions.

¶ 4. After receiving the message from the detectives, Mikulec rode his bicycle on the sidewalk alongside Black as he proceeded down the street. Mikulec identified himself and asked Black for identification. Black gave him the name "Lee Brown" and a date of birth, and continued to walk southbound, indicating that he was looking for his girlfriend. Mikulec radioed dispatch to confirm the information Black had given him. Dispatch reported back that the identity provided was "not on file." Black then informed Mikulec that he was from Michigan and Mikulec attempted to confirm this information, but his name again came up "not on file." Black told Mikulec that he did not have any form of identification on his person to confirm his name and date of birth.

¶ 5. While Black and Mikulec proceeded to walk down the street, Mikulec examined Black for signs that he was carrying identification. Mikulec noticed that while there was apparently nothing in Black's back pants pockets, his front pockets were "bulging." Mikulec testified that as Black was stopped on the curb, "I took my hand and brushed it against the right side of his pants pocket and as I touched the pocket, he indicated 'change.'" Mikulec explained that he had touched Black's pocket

to see if there was a wallet in there, because he indicated that he had no identification, and [I] had to confirm this. And based upon the bulge, it did look like there was something in there that might be a wallet. And this has happened routinely to me where people tell me they don't have identification only to find a wallet later on them and find that it's usually a way for them not to provide identification.

Mikulec further explained that he had touched the outside of the pocket with the back of his hand and tapped, it, but did not reach inside the pocket. After Black replied that his pocket had change, he pulled some coins out to confirm this.

¶ 6. Mikulec then touched and tapped the outside of Black's left pants pocket. Mikulec testified:

And when I touched that, I could feel what felt like a pair of hard objects, and I tapped it again and it felt like film canisters, and I made the comment to this individual that it felt like film canisters, and I made the comment to him that based upon the fact that he wasn't carrying a camera, film canisters are usually used for transporting drugs, and I asked him if he would take the contents out of his left pocket.

When Mikulec asked Black to take the objects out of his pocket, Black responded "fuck that" and fled.

¶ 7. As Mikulec pursued Black on his bicycle, Black took the containers out of his pocket and ran with them in his hand. Once Mikulec cornered Black, Black threw the containers down. Mikulec arrested Black and then found prescription medication bottles. The bottles contained cocaine.

¶ 8. Black was charged with possession of cocaine with intent to deliver and obstructing a police officer. At his suppression hearing, the circuit court found that there was reasonable suspicion for Mikulec's search, that "much of the touching was done consensually," and that Black made no objection until Mikulec felt Black's left pocket and asked him to show him the containers. The court denied Black's motion to suppress evidence. Black appeals.

DISCUSSION

¶ 9. The sole issue raised by Black is the reasonableness of Mikulec's search for identification. In reviewing an order denying a motion to suppress evidence, we 'will uphold a circuit court's factual findings unless they are against the great weight and clear preponderance of the evidence. See State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1989). However, whether a search passes constitutional muster is a question of law subject to de novo review. See State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830 (1990).

¶ 10. The Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution guarantee citizens the right to be free from "unreasonable searches and seizures." Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may stop an individual and request identification if he or she is suspected of criminal involvement. Terry was codified under Wis. Stat. § 968.24, which provides:

After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

¶ 11. The issue of conducting an identification search has been addressed by our supreme court in Flynn. Because this decision is dispositive, we summarize the case in detail below.

¶ 12. In Flynn, the police were dispatched at 2:45 a.m. to a break-in at a sporting goods store and were given a description of one suspect who had allegedly taken a rifle. A half hour later, Officer Sargent observed two men emerge from an alley two blocks from the burglarized store. One of the men fit the description of the suspected burglar. Sargent approached the two men and requested identification. The person who fit the suspect's description properly identified himself, but the other man, Flynn, refused. Sargent explained to Flynn the reason for requesting identification — that there had been a burglary in the area and that Flynn was accompanying a man who fit the burglar's description — but Flynn persisted in his refusal. Although Flynn admitted that he was carrying identification in his wallet, he stated that under no circumstances would he show it to Sargent. Sargent informed Flynn that if he refused he would take him to the police station to identify him there. Flynn again refused and became belligerent with Sargent.

¶ 13. Sargent then conducted a frisk of Flynn and removed his wallet and a pair of pliers. As the frisk was taking place, Flynn dropped his arms and a flashlight fell from his sleeve. The pliers and flashlight were seized and the wallet was examined for identification. Once Flynn's name was found on a document in the wallet, Sargent and the other officers radioed headquarters and discovered that Flynn was wanted for a prior burglary. See Flynn, 92 Wis. 2d at 432. Flynn was then placed under arrest, taken to the police station and later charged with burglary.

¶ 14. The supreme court ruled that the identification search was constitutional. In reaching its decision, the court initially observed that "unless the officer is entitled to at least ascertain the identity of the suspect, the right to stop him can serve no useful purpose at all." Id. at 442. The court stated that police right to request identification but the suspect could simply refuse without any detriment to the suspect. See id. at 444.

¶ 15. In determining whether Sargent's search for identification was reasonable under the Fourth Amendment, the court conducted a balancing test in which the need for the particular search is weighed against the invasion of personal rights that the search entailed. See id. at 446. The court determined that the need for identification was high because the officers had reason to believe a crime had taken place in the vicinity, it was very early in the morning, there was at least one firearm that had been taken and the public has a compelling interest in the quick apprehension of burglars. On the other side of the scale, the intrusion was considered appropriate because the officer removed Flynn's wallet solely to look for identifying papers. See id. at 446-47. "These officers were not fishing for whatever evidence they could find, but sought merely to learn defendant's identity." Id. at 448. The court thus concluded that when a person refuses to provide identification when an officer is justified in stopping him or her and requesting identification, the officer may remove his or her wallet to obtain the identification.

¶16. In permitting an identification search, the Flynn court was careful to limit its holding to "factual situations such as the one presently before us." Id. at 449. Professor Wayne R. LaFave has commented that

[a]s in Flynn, [an identification] search should be permitted only if the suspect was first afforded ample opportunity to supply the necessary identification. Under no circumstances should a wholesale search of the person (e.g., for letters) be permitted even when such a search might uncover some information bearing upon the suspect's identity. Rather, such searches should be limited only to wallets or similar common repositories of identification papers, and examination of such containers should be allowed only to the extent necessary to find a driver's license or similar document. And if the precise location of the wallet or like container is not known, only a frisk should be allowed as a means of discovering it.

4 Wayne R. LaFave, Search and Seizure § 9.5(g) 306-07 (1996).

¶ 17. We are persuaded that Mikulec's limited search for identification in this case was permissible under Flynn. In conducting a Fourth Amendment "reasonableness" balancing test, we begin with Mikulec's justification for initiating the search. See Flynn, 92 Wis. 2d at 445. Mikulec was instructed by Officers Primising and Kaufman to obtain identification from Black. No other details were provided. When the information Black provided Mikulec came up as being "not on file," it was reasonable for Mikulec to be dissatisfied with Black's response and to want to investigate further. As the Flynn court observed, "unless the officer is entitled to at least ascertain the identity of the suspect, the right to stop him can serve no useful purpose at all." Id. at 442. When Mikulec noticed Black's bulging pockets, he had reason to suspect that Black was carrying identification. In conducting a limited search for identification, Mikulec acted on his experience that persons sometimes deny carrying identification when in fact they have identifying papers.

¶ 18. As to the nature of the intrusion, Mikulec's search was slight. Mikulec touched and tapped Black's pockets in order to determine whether Black was carrying a wallet or other repository for identification. As Mikulec felt Black's pockets, he noticed that Black was carrying hard canisters. Upon inquiring about the objects, Black bolted. Professor LaFave has cautioned that an identification search should be strictly limited to uncovering a wallet or similar repository for identification papers. See 4 LaFave at § 9.5(g) 307. Here, Mikulec's search was focused on obtaining Black's identification until Mikulec felt the canisters. Mikulec's search did not go to the extent that Officer Sargent's did in Flynn. Mikulec did not reach inside Black's pockets for his wallet; he merely felt the outside for something that could contain identification. Mikulec's conduct was consistent with LaFave's suggestion that if the precise location of the wallet is unknown, "only a frisk should be allowed as a means of discovering it." 4 LaFave at § 9.5(g) 307.

¶ 19. The facts in this case present a close question of the reasonableness of Mikulec's search. While the justification for obtaining Black's identity does not provide the same compelling reasons as in Flynn, Mikulec's search was also much more limited than Sargent's. Because our supreme court has placed an emphasis on the need to ascertain a suspect's identity, we conclude that Mikulec's search was reasonable. If we were to conclude otherwise, then police would be unable to positively establish a suspect's identity when the suspect provides false or unconfirmed information. As the Flynn court cautioned, if an officer does not obtain the person's name, "the officer must either attempt to follow the suspect in the hope that he will discover some clue as to his identity, or surrender the potential lead and continue his investigation along other lines. Particularly where the officer is confronted with a number of potential suspects, limiting his options in this manner could have a perplexing effect on law enforcement efforts." Flynn, 92 Wis. 2d at 442.

¶ 20. We affirm the circuit court's decision denying Black's motion to suppress.

By the Court. — Judgments affirmed.

        Terry v. Ohio, 392 U.S. 1 (1968).

       This appeal is a consolidation of four unrelated cases. The substance of Bruce E. Black's appellate argument relates only to No. 99-1686-CR involving his conviction for possession of cocaine with intent to deliver contrary to WlS. STAT. § 961.41(lm)(cm)l (1995-96) and obstructing an officer contrary to Wis. Stat. § 946.41(1) (1995-96). (All references to the Wisconsin Statutes are to the 1995-96 version.) Black, however, requests that we vacate his guilty pleas and convictions pertaining to No. 99-1687-CR (escape from custody contrary to WlS. Stat. § 946.42(3)(a)), No. 99-1688-CR (delivery of LSD as a repeater contrary to Wis. Stat. §§ 961.41(l)(f)l and 939.62) and No. 99-1689-CR (robbery by use of force as a party to the crime and as a repeater contrary to WlS. STAT. §§ 939.05, 943.32(l)(a) and 939.62). He contends that because his decision to enter into a joint plea agreement as to all of the cases was influenced by the court's denial of his suppression motion in No. 99-1686-CR, an appellate decision in his favor would "negate one part of an inter-connected plea bargain." We conclude, however, that because his Fourth Amendment argument fails on appeal, all of his convictions must stand.

       The court first found that the search and discovery of the pliers and flashlight were justified pursuant to Terry and Wis. Stat. § 968.25. The frisk was supported by the fact that there was a report of a burglary in the area, Flynn was in a desolate alley in the middle of the night, a firearm had been taken, and Flynn had become verbally abusive and uncooperative.

       The State would have us attribute the collective knowledge of Primising and Kaufman to Mikulec in support of his identification search. We disagree with this approach because the cases upon which the State relies are not on point. For instance, in Schaffer v. State, 75 Wis. 2d 673, 250 N.W.2d 326 (1977), overruled on other grounds by State v. Walker, 154 Wis. 2d 158, 185-86, 453 N.W.2d 127 (1990), the court held that the arresting officer, who had not personally acquired factual information to establish probable cause, could rely on all "collective information in the police department, and, acting in good faith on the basis of such information, may assume at the time of apprehension that probable cause has been established." Id. at 676. Similarly, the court in Desjarlais v. State, 73 Wis. 2d 480, 491, 243 N.W.2d 453 (1976), stated that where there is a "police-channel communication" to an arresting officer who acts in good faith on the information, the arrest is valid if probable cause is demonstrated by the facts held by the department "which were summarized in police dispatches." In both of these cases, the collective police information was communicated to the arresting officer prior to the arrest. In the present case, the information was not given to the officer. We therefore conclude that in order for the collective-information rule to apply, such information must actually be passed to the officer before he or she makes an arrest or conducts a search. This conclusion is supported by State v. Friday, 140 Wis. 2d 701, 712-15, 412 N.W.2d 540 (Ct. App. 1987), reversed on other grounds, 147 Wis. 2d 359, 371 — 79, 434 N.W.2d 85 (1989), where we held that collective police data cannot support an officer's search when the data is not in fact communicated to the officer prior to the time the search is made.

       We note that Black does not object to Mikulec's inquiry into the nature of the containers.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    In re the Commitment Under Chap. 980, Stats, of Wilbert L. Thomas: State of Wisconsin, Petitioner-Respondent, v. Wilbert L. Thomas, Respondent-Appellant.
    Court of Appeals

      No. 00-0150.

      Submitted on briefs May 18, 2000.

    Decided July 12, 2000.

    2000 WI App 162
    (Also reported in 617 N.W.2d 230.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender of Madison, Mark Lukoff, assistant state public defender of Racine, and Robert W. Peterson, assistant state public defender of Racine.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Brian E. Pawlak, assistant district attorney, and Robert S. Flancher, district attorney of Racine.
    Before Brown, P.J., Anderson and Snyder, JJ.

       Petition to review denied.

   ANDERSON, J.

¶ 1. In this interlocutory appeal, Wilbert L. Thomas argues that the circuit court erred by not granting his motion to dismiss a December 28, 1999 petition seeking his commitment as a WlS. Stat. ch. 980 (1997-98) sexually violent person. Thomas argues that the petition should have been dismissed for not conforming to the time limit in WlS. Stat. § 980.02(2)(ag) because it was filed after he had been discharged from his criminal sentence for a sexually violent offense. After reviewing the statute, we agree and conclude that an offender cannot be detained beyond his or her maximum discharge date in order to file a ch. 980 petition. The order is reversed.

¶ 2. Thomas was convicted of second-degree sexual assault on March 31,1992, and sentenced to serve eight years in prison. His mandatory release date was December 23, 1997. After a psychological evaluation prior to his release, the evaluating psychologist determined that Thomas did not meet the criteria for Wis. Stat. ch. 980 commitment, and therefore the Department .of Corrections (DOC) declined to request that such petition be filed. The Racine district attorney's office had another psychological evaluation conducted and, after the psychologist recommended that it do so, filed a petition on December 8,1997, to commit Thomas under ch. 980. Thomas moved to dismiss the petition, asserting that the district attorney did not have authority to file a petition unless the DOC had requested that the petition be filed and the Department of Justice (DOJ) had declined to do so. The court denied Thomas's motion, and we reversed that decision in State v. Thomas, No. 98-0152, unpublished slip op. (Wis. Ct. App. Dec. 9,1998), aff'd, 231 Wis. 2d 241, 603 N.W.2d 84 (1999) (per curiam), where we held that a district attorney may file a commitment petition only if the DOJ has declined to do so following a DOC request.

¶3. On December 8, 1999, the supreme court affirmed our decision. See State v. Thomas, 231 Wis. 2d 241, 603 N.W.2d 84 (1999) (per curiam). After the deadline for filing a motion for reconsideration had passed, the supreme court remitted the case to the circuit court. Thomas's maximum discharge date was December 25, 1999. On December 29, 1999, the circuit court dismissed the December 8,1997 petition.

¶ 4. While the 1997 petition was in the appeal process, another psychological examination of Thomas was conducted. Based on the psychologist's conclusions, the DOC changed its view and determined that the criteria for a Wis. Stat. ch. 980 commitment had been established. It wrote a December 9,1999 letter to the DOJ requesting that it file such a petition. The DOJ once again declined to do so in a December 22 letter to the Racine county district attorney. The district attorney responded by filing a second petition for ch. 980 commitment on December 28.

¶ 5. The next day, Thomas filed a motion to dismiss the second petition, arguing that the district attorney lacked authority to file it. At the motion hearing, Thomas pointed out that his discharge date was December 25, 1999, and the second petition was filed on December 28. This is contrary, he contended, to the requirement in Wis. Stat. § 980.02(2)(ag) that the petition be filed within ninety days of release or discharge. He further argued that the only reason he remained in custody beyond this date was that the Wis. Stat. ch. 980 petition, a civil matter, was in the appeal process; his criminal sentence, however, was completed. His motion was denied. Thomas appeals.

¶ 6. A Wis. Stat. ch. 980 petition may be filed "within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility." Wis. Stat. § 980.02(2)(ag). The parties disagree about whether the December 28, 1999 petition filed against Thomas was timely filed. On the one hand, Thomas contends that § 980.02(2)(ag) requires that the petition be filed within ninety days of his discharge. Because his discharge date, December 25, had passed, there was no authority to file the petition and it should be dismissed, he argues. The State, on the other hand, asserts that the time limit is not mandatory and that the term "otherwise" in § 980.02(2)(ag) is a catchall provision designed by the legislature to cover instances such as this.

¶7. To resolve this dispute, we must examine WiS. Stat. § 980.02(2)(ag) and determine which party construes it correctly. This is a question of statutory interpretation, which we review without deference to the circuit court's conclusion. See Grosse v. Protective Life Ins. Co., 182 Wis. 2d 97, 105, 513 N.W.2d 592 (1994). If the language of the statute is clear and unambiguous, we merely apply the language to the facts of the case. See State v. Keding, 214 Wis. 2d 363, 368-69, 571 N.W.2d 450 (Ct. App. 1997).

¶ 8. The State first argues that it did not lose authority to file a Wis. Stat. ch. 980 petition against Thomas because the time limit in Wis. Stat. § 980.02(2)(ag) is directory rather than mandatory. Section 980.02(2) prescribes:

A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
(ag) The person is within 90 days of discharge or release... from a sentence that was imposed for a conviction for a sexually violent offense .... (Emphasis added.)

¶ 9. The State contends that despite the "shall" directive in Wis. Stat. § 980.02(2), the time limit remains directory. "Although the use of the word 'shall' in a statute suggests that the provision is mandatory, this court has often held that statutory time limits are directory despite the use of the word 'shall.'" State v. R.R.E., 162 Wis. 2d 698, 707, 470 N.W.2d 283 (1991). In determining whether the statutory time limit is mandatory, we consider several factors: the existence of penalties for failure to comply with the limitation, the statute's nature, the legislative objective for the statute, and the potential consequences to the parties, such as injuries or wrongs. See State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 329, 320 N.W.2d 27 (Ct. App. 1982).

¶ 10. In R.R.E., the supreme court considered whether R.R.E. was entitled to release from his not guilty by reason of mental disease or defect commitment when the circuit court failed to conduct his reexamination hearing within the statutory thirty-day time limit. See R.R.E., 162 Wis. 2d at 703. The statute at issue, Wis. Stat. § 51.20(16)(c) (1987-88), required that "a hearing shall be held on the petition within 30 days of receipt." (Emphasis added.) In holding that the time limits were directory, the R.R.E. court found that when creating the criminal commitment provisions, the legislature's objective — protecting the public from a dangerous individual — was the dominant consideration. See R.R.E., 162 Wis. 2d at 709, 712.

¶ 11. The same policy consideration was an impetus for the creation of WlS. STAT. ch. 980. See State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995) ("[T]he principal purposes of ch. 980 are the protection of the public and the treatment of convicted sex offenders . . . ."). It is important, however, to highlight that the legislature's primary focus in creating ch. 980 was not to further criminally punish convicted sexually violent persons, but to provide treatment to them for their mental conditions. See Carpenter, 197 Wis. 2d at 273-74. A ch. 980 commitment is a civil one, not a criminal one as in R.R.E. Although the legislature's goals in enacting Wis. Stat. § 980.02(2)(ag) were similar to those analyzed in R.R.E., this important factual distinction exists. That being the case, we determine that the most appropriate comparison is to another decision, Gerhardstein, dealing with the statutory time limit for a commitment hearing in an involuntary civil commitment situation.

¶ 12. The Gerhardstein court determined that the statutory time limit in WlS. Stat. § 51.20(7)(c) (1981-82) was mandatory. In that case, the statute required that the circuit court, if it determines that probable cause exists, shall schedule a final commitment hearing within fourteen days of the person's involuntary commitment. See Gerhardstein, 107 Wis. 2d at 329. Focusing on the injuries suffered by an individual held in custody beyond the statute's time limit for a hearing, the court concluded that "an individual . . . who is incarcerated and deprived of [his or] her liberty until the holding of a final commitment hearing, is injured to a[ ] . . . great[ ] degree." See id. at 330. We find this reasoning applicable to the present issue and determine that the time limit in Wis. Stat. § 980.02(2)(ag) is mandatory.

¶ 13. Our decision today is supported by the recent supreme court decision, State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94. The Thiel court held that Wis. STAT. § 980.02(2) requires that "the State must prove beyond a reasonable doubt that it filed its [commitment] petition within 90 days of the subject's release or discharge." Thiel, 2000 WI 67 at ¶ 26. The court found that the statute's plain language led it to the "inescapable conclusion" that "the legislature intended the State to prove its fulfillment of the 90-day requirement beyond a reasonable doubt before a person may be adjudged sexually violent." See id. at ¶ 19. Because proving that the commitment petition was filed within ninety days of discharge or release is an essential allegation in the petition, it follows that the time limit of § 980.02(2)(ag) must be mandatory.

¶ 14. The State alternatively argues that the term "otherwise" in Wis. Stat. § 980.02(2)(ag) refers to a generalized concept of custody, meaning that so long as Thomas was continuously detained, for whatever reason, the paragraph applies. It relies on State v. Keith, 216 Wis. 2d 61, 71-72, 573 N.W.2d 888 (Ct. App. 1997), to support its contention. We cannot agree that Keith stands for this proposition. The Keith court considered when a Wis. Stat. ch. 980 petition should be filed if the offender is continuously incarcerated under consecutive sentences. See Keith, 216 Wis. 2d at 70. The court determined that the petition could be filed within ninety days of the offender's release from a continuous term of incarceration, any part of which was imposed for a sexually violent offense. See id. at 71.

¶ 15. The State insists that:

Mr. Thomas at the time of the filing of the petition was held in the custody of the Racine County Jail as a result of his sexual assault conviction, his ancillary chapter 980 proceeding, and finally Remittitur. This qualifies under the "otherwise" provision of the statute.

¶ 16. Although the lawfulness of Thomas's continued detention after his discharge date is not at issue here, the State argues that his continued detention equates with the "generalized concept of custody" approved by the court in Keith. See id. at 72. We disagree, finding the situation in Keith factually dissimilar. Keith served consecutive sentences of incarceration; Thomas did not. The authority to keep Thomas in jail beyond his discharge date is not found in WlS. STAT. ch. 980. He could not be criminally detained under ch. 980 because such persons are civil patients, not prisoners. See Carpenter, 197 Wis. 2d at 271 — 72. Thomas's continued detention beyond his discharge date is excluded from the WlS. Stat. § 980.02(2)(ag) provision permitting petitions to be filed against those "otherwise" detained for a conviction for a sexually violent offense.

¶ 17. In sum, we conclude that Wis. Stat. § 980.02(2)(ag) is clear and unambiguous. It requires that a petition can only be filed within ninety days of a defendant's release or discharge from a criminal sentence for a sexually violent offense. See Keith, 216 Wis. 2d at 71-72; Thiel, 2000 WI 67 at ¶ 26. This did not happen. The petition against Thomas was filed three days after he was discharged from his criminal sentence. The State does not point to an administrative code section or statute allowing it to detain Thomas beyond his sentence's discharge date in order to file a WlS. Stat. ch. 980 petition, and we hold that it was without authority to do so.

¶ 18. We reached an analogous result in State ex rel. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 NW.2d 425. In that case, Olson was detained past his mandatory release date because the State was still trying to find a neighborhood willing to accept him as a paroled sex offender. See id. at ¶ 5. We determined that the statute was clear — a person must be released on his or her mandatory release date.

[T]here is no gray area in the statute — it is crystal clear. Our job is to apply the statute as it is written. Whether or not a place has been found for an inmate, he or she must be released on his or her mandatory release date.

Id.

¶ 19. Unlike a mandatory release situation where an inmate's sentence technically continues while on parole, a discharge date signals the end of a criminal sentence. Once an inmate has reached his or her discharge date, the appropriate amount of time has been served and the inmate should be released from custody. The DOC's authority over that person has ceased. Just as we have held it to be unlawful to hold an inmate beyond mandatory release to find placement according to the requirements in WlS. Stat. § 301.45, we likewise hold that an inmate cannot be held beyond his or her discharge date while the State pursues a WlS. Stat. ch. 980 commitment. Wisconsin Stat. § 980.02(2)(ag) does not permit this.

By the Court. — Order reversed.

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

       WISCONSIN Stat. § 980.02(2)(ag) refers to both release and discharge dates. One is entitled to mandatory release from prison on parole when two-thirds of his or her sentence is served. See Wis. Stat. § 302.11(1). After reaching his or her mandatory release date, one remains on parole until the maximum discharge date or the date on which the sentence would have been completed without the application of the mandatory release provision. See 73 Wis. Op. Att'y Gen. 81-82 (1984).


author: ROGGENSACK, J. DYKMAN, P.J.

text:
    Charles JOHNSON and Karen Johnson, Plaintiffs-Appellants, v. Rogers Memorial Hospital, Inc., Heartland Counseling Services, Defendants-Respondents, South Street Clinic, Defendant, Kay Phillips, Ph.D., Jeff Hollowell and Tim Reisenauer, Defendants-Respondents, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Insurance Company, MNO Insurance Company, and PQR Insurance Company, Defendants, Wisconsin Patients Compensation Fund, Defendant-Respondent.
    Court of Appeals

      No. 98-0445.

      Submitted on briefs December 6, 1999.-

    Decided July 13, 2000.

    2000 WI App 166
    (Also reported in 616 N.W.2d 903.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William Smoler and Gregory P. Seibold of Murphy & Desmond, S.C. of Madison.
    On behalf of the defendant-respondent, Rogers Memorial Hospital, Inc., the cause was submitted on the brief of Lori Gendelman and Jeffrey J.P. Conta of Otjen, VanErt, Lieb & Weir, S.C. of Milwaukee.
    On behalf of the defendant-respondent, Kay Phillips, Ph.D., the cause was submitted on the brief of David E. McFarlane and Kendall Harrison of La Fol-lette Sinykin, LLP of Madison.

      On behalf of the defendants-respondents, Jeff Hollowed and Tim Reisenauer, the cause was submitted on the brief of Bradway A. Liddle, Jr. and Mario D. Mendoza of Boardman, Suhr, Curry & Field LLP of Madison.
    Before Dykman, P.J., Roggensack and Deininger, JJ.

      Petition to review granted.

   ROGGENSACK, J.

¶1. Charles and Karen Johnson (the Johnsons) brought suit for personal injuries they contend they suffered due to false allegations by their daughter, Charlotte, that when she was a child, Charles had sexually abused her and Karen had physically abused her. The Johnsons contend they have a third-party claim for medical malpractice due to the negligent infliction of emotional harm to them, under the holding of Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999). However, because Charlotte has neither joined in the lawsuit nor waived her right to the confidentiality to her medical records and psychologist-patient communications which are central to the Johnsons' third-party claims, we conclude those professional negligence claims are barred on public policy grounds. We also conclude that the Johnsons' breach of contract claim against Rogers Memorial Hospital is barred by the same public policy. Therefore, we affirm the circuit court's judgment of dismissal.

BACKGROUND

¶ 2. The Johnsons are the parents of an adult daughter, Charlotte, who received psychotherapy from psychologists Kay Phillips, Jeff Hollowell and Tim Reisenauer. The majority of Charlotte's psychotherapy was done as an outpatient, some through Heartland Counseling Services, where Phillips was employed, and some through the South Street Clinic, which billed for Hollowell and Reisenauer. However, in November of 1991, Charlotte received inpatient therapy from Hollowell and Reisenauer at Rogers Memorial Hospital. The Johnsons contracted with Rogers Memorial to pay for Charlotte's inpatient care.

¶ 3. While an inpatient at Rogers Memorial, Charlotte confronted Charles with the allegation that he had sexually abused her as a child. And at a later meeting with the therapists, Charlotte accused her mother of physically abusing her and of "supporting" Charles's sexual abuse.

¶ 4. The Johnsons deny both the sexual and the physical abuse and have brought third-party medical malpractice claims against Phillips, Hollowell, Reisenauer and Rogers Memorial for falsely implanting the memory of such untrue abuse during the therapists' treatment of Charlotte. The Johnsons claim that Charlotte's allegations resulted from her negligent treatment and that that negligent treatment resulted in a direct injury to them of past and future emotional harm. They also make a claim against Rogers Memorial for the negligence of their agents, Hollowell and Reisenauer, and for breach of contract for failing to provide "appropriate treatment" to Charlotte.

¶ 5. All defendants answered the complaint, denied the material allegations, raised various affirmative defenses and moved to dismiss for failure to state a claim and on various other grounds. The circuit court granted their motions to dismiss, and the Johnsons appeal.

DISCUSSION

Standard of Review.

¶ 6. Whether a third-party's professional negligence claim against a therapist to recover damages for the negligent infliction of emotional harm due to a patient's allegedly false memories of abuse resulting from psychotherapy states a claim for relief in Wisconsin is a question of law. See Sawyer, 227 Wis. 2d at 137, 595 N.W.2d at 430 (citing Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 259, 580 N.W.2d 233, 237 (1998)). Whether such a claim, well-pled, is nevertheless precluded on public policy grounds is also a question of law. See Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 142, 549 N.W.2d 714, 715 (1996). We review questions of law de novo. See State v. Walters, 224 Wis. 2d 897, 901, 591 N.W.2d 874, 875-76 (Ct. App. 1999).

Third-Party Professional Negligence Claims.

¶ 7. The core of the Johnsons' claim is that the therapists caused Charlotte to believe that she was remembering events that never happened. Therefore, they contend that her accusations were unwarranted and arose from negligently provided psychotherapy, rather than from actual occurrences. This alleged negligence by the therapists caused the Johnsons to suffer emotional harm.

¶ 8. While this case was pending, the supreme court decided Sawyer, in which it determined that public policy did not preclude a third-party from maintaining a medical malpractice action for the negligent infliction of emotional harm when there was a direct injury to a third-party. The Sawyers' claim was also bottomed on an accusation of sexual and physical abuse, which they contended they did not perpetrate and which they also asserted was the result of a false memory negligently implanted by the therapist. However, the Sawyers, as the administrators of their deceased daughter's estate, also brought a claim on behalf of the estate, thereby putting their daughter's medical condition at issue under Wis. Stat. §§ 804.10 and 905.04(4)(c) (1997 — 98). Furthermore, as administrators of their daughter's estate, they had custody of her medical records.

¶ 9. However, while the supreme court permitted a third-party claim for medical malpractice when a third-party has suffered a direct injury, it left open the question of whether public policy would bar a third-party's claim for the negligent infliction of emotional harm when the patient's right to maintain the privacy of her confidential communications with her therapists had not been waived and the patient's health care records remained protected under the statutes. It opined that: "Perhaps problems of confidentiality [where the patient has not relinquished that privilege] would preclude liability from being imposed in a future case . . . Sawyer, 227 Wis. 2d at 150, 595 N.W.2d at 436.

¶ 10. Additionally, in Sawyer, both the concurrence, by Justice Wilcox, and the dissent, by Justice Bradley, were concerned about the court's concluding a third-party claim for medical malpractice was available in Wisconsin, when the patient had not consented to the release of her/his medical records or relinquished the confidentiality of the psychologist-patient privilege.

The majority also dismisses the doctors' concerns about confidentiality between a therapist and patient due to [the patient's] death. However, in the next case, the defendant(s) may be presented with a different situation, one in which the therapist cannot properly defend himself or herself without revealing confidences disclosed in sessions.
[....]
By allowing third-party actions against therapists, patients may be faced with a difficult choice between preserving the confidentiality of patient-therapist communications or assisting the therapist in responding to the action.

Id. at 163-64, 595 N.W.2d at 442 (Wilcox, J., concurring).

¶ 11. Here, we are presented with the case excepted from the supreme court's opinion in Sawyer. Charlotte's medical records are not in the Johnsons' possession, and she has not waived her right to maintain their confidentiality. She also has not relinquished her privilege to retain the privacy of her communications with the therapists.

¶ 12. A trial of the Johnsons' claims would focus on the psychotherapy provided to Charlotte. A health care provider is subject to liability for negligently provided care if " 'he fails to exercise that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances.'" Schuster v. Altenberg, 144 Wis. 2d 223, 229, 424 N.W.2d 159, 161-62 (1988) (quoting Shier v. Freedman, 58 Wis. 2d 269, 283-84, 206 N.W.2d 166,174, modified, 58 Wis. 2d 269, 208 N.W.2d 328 (1973)). The history of a patient's health care is recorded by health care providers in the patient's health care records, which records are protected from disclosure by Wis. Stat. § 146.82(1), except in limited circumstances not at issue here. Furthermore, all confidential communications between a patient and his or her health care provider are privileged and may not be disclosed without the patient's consent, except in limited circumstances not presentin this case. See id.; Wis. STAT. § 905.04(2), (3) and (4)(c).

¶ 13. In order for the Johnsons to prove their claim, they will need to examine the treatment given Charlotte and confidential communications between her and the therapists. And, in defense, the therapists will wish to show that the treatment they provided was that expected of an average therapist, acting in the same or similar circumstances. Therefore, we must decide whether, without access to Charlotte's health care records and the freedom to relate confidential communications between her and the therapists, this lawsuit should be precluded on public policy grounds.

¶ 14. Appellate courts have examined various grounds to determine whether public policy should prevent a claim for liability from proceeding. They are:

(1) the injury is too remote from the negligence; or
(2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or
(3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or
(4) allowance of recovery would place too unreasonable a burden on the negligent tort-feasor; or
(5) allowance of recovery would be too likely to open the way for fraudulent claims; or
(6) allowance of recovery would enter a field that has no sensible or just stopping point.

Sawyer, 227 Wis. 2d at 142, 595 N.W.2d at 432 (citing Garrett v. City of New Berlin, 122 Wis. 2d 223, 233-34, 362 N.W.2d 137, 143 (1985)). In Sawyer, the supreme court reviewed the six factors set forth above and concluded that none prohibited a third-party claim for a direct injury based on medical malpractice. However, the court also considered the "collateral burden" that the recognition of such a third-party claim may have on the therapist-patient relationship as an additional public policy basis relevant to whether the lawsuit should proceed. See Sawyer, 227 Wis. 2d at 147, 595 N.W.2d at 434. It defined its collateral burden concerns in terms of two additional public policy factors: (1) treatment modalities and (2) the confidentiality of the therapist-patient relationship.

¶ 15. In regard to treatment modalities, the supreme court examined whether third-party liability may cause therapists to refuse to treat patients who believed they may have been sexually abused or to refrain from using new and innovative forms of therapy which the therapist believed were best suited for the condition from which the patient suffered. See id. The supreme court reasoned that, under the facts found in Sawyer, treatment modalities were an insufficient public policy basis to preclude the lawsuit because the standard of care owed to a patient by a therapist is not increased by permitting a third-party cause of action, as the therapist continues to be obligated to provide care in the manner exercised by the average psychologist acting in the same or similar circumstances. See id. at 148, 595 N.W.2d at 435.

¶ 16. In the case at hand, we also see no increase in the collateral burden for the therapists in the provision of care sufficient to meet the necessary standard due to the third-party claim of the Johnsons. The availability or unavailability of Charlotte's medical records does not affect the type of therapy she has already received, nor should it affect the standard of care to which Charlotte was entitled when that care was rendered.

¶ 17. However, the lack of access to Charlotte's medical records and the confidentiality shield for her communications with the psychologist-defendants create a significant collateral burden in this case, which was not present in Sawyer. For example, without the use of Charlotte's health care records and the confidential communications between her and the therapists, the therapists would be precluded from presenting facts relevant to whether the therapy they provided was such that it met the degree of care and skill which is exercised by the average psychologist acting in the same or similar circumstance. For example, those records could prove that the therapy provided was not the source of any "recollections" that later proved to be false. And, on the other hand, they are also the records the Johnsons will need to review in order to prove that the allegedly false memories arose from the therapy. However, the public policy underlying the privilege, that of encouraging patients to freely and candidly discuss their health care concerns with their health care providers so they may be adequately treated, would be thwarted if patients' health care records were fair game whenever any third-party initiated a lawsuit to which those records might be relevant. Additionally, the legislature has clearly mandated the protection of confidential psychologist-patient communications and of patient health care records in Wis. Stat. §§ 905.04 and 146.82(1).

¶ 18. We have been presented with no argument that causes us to conclude that the Johnsons' interest in financial compensation for the injury they claim to have suffered should trump Charlotte's right to maintain the confidentiality of her privileged communications and health care records. Therefore, under the circumstances set forth in the record before this court, those health care records and communications remain privileged and unavailable. Accordingly, we conclude that because Charlotte's medical records and her confidential communications with her therapists are necessary to the fair resolution of the Johnsons' third-party medical malpractice claims, the Johnsons are precluded from continuing those claims in order to further the public policy of protecting the confidentiality of the therapist-patient relationship.

Breach of Contract.

¶ 19. The Johnsons also sued Rogers Memorial based on what they contend is a breach of contract to provide "appropriate treatment" to Charlotte. They assert that as a result of this alleged breach they suffered damages, "including, but not limited to, loss of the relationship with their daughter Charlotte Johnson, loss of payments made for inpatient care and other consequential and incidental damages including emotional pain and suffering and past and future loss of enjoyment of life . . . ." While this claim is styled as a breach of contract action, it is based on the failure to provide "appropriate treatment" to Charlotte. Read in the context of the complaint, it is simply an action for medical malpractice labeled as a contract claim, because the Johnsons will be required to prove that the care provided to Charlotte did not meet the requisite legal standard. See Koschnik v. Smejkal, 96 Wis. 2d 145, 291 N.W.2d 574 (1980). Once again, confidential communications between the therapists and Charlotte and Charlotte's health care records will be necessary to the prosecution and defense of the claim. Therefore, for all the reasons stated above, we conclude that this claim, too, may not proceed. Accordingly, we affirm the judgment of the circuit court dismissing the lawsuit.

CONCLUSION

¶ 20. Because Charlotte has neither joined in the lawsuit nor waived her right to the confidentiality to her medical records and psychologist-patient communications, which are central to the Johnsons' third-party claims, we conclude those professional negligence claims are barred on public policy grounds. We also conclude that the Johnsons' breach of contract claim against Rogers Memorial Hospital is barred by the same public policy. Therefore, we affirm the circuit court's judgment of dismissal.

By the Court. — Judgment affirmed.

DYKMAN, P.J.

¶ 21. (dissenting). The majority has concluded that the Johnsons' complaint should be dismissed because the majority predicts that the John-sons will not be able to prove their case. I do not read the majority opinion as relying on any of the six policy factors Wisconsin courts use to reverse a jury's finding of negligence, causation, and damages. See Sussex Tool & Supply, Inc. v. Mainline Sewer & Water, Inc., 231 Wis. 2d 404, 417-18, 605 N.W.2d 620 (Ct. App. 1999). It seems, therefore, that the majority has invented a seventh policy factor: "the plaintiff will be unable to prove a negligence case." To me, that goes far beyond the error-correcting function of this court. See Deegan v. Jefferson County, 188 Wis. 2d 544, 559, 525 N.W.2d 149 (Ct. App. 1994). And even if a suspected inability to prove a case is a policy factor, "it is usually better practice to submit the issue to the jury insofar as determining the issues of negligence and causation." Padilla v. Bydalek, 56 Wis. 2d 772, 779, 203 N.W.2d 15 (1973). Neither I nor the majority knows how the Johnsons plan to prove their case. When the Johnsons' daughter told them that they sexually and physically abused her when she was a child, she may have explained why she believed this was true. An expert witness might provide the necessary information. Their daughter might change her mind at a deposition and provide the necessary information. I believe that it is a dangerous practice forjudges to guess what a plaintiff may or may not be able to prove at trial, and to dismiss cases that they predict cannot be proven.

¶ 22. Nothing in Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999), requires this result. The most that case holds concerning the facts we face today is: "Perhaps problems of confidentiality would preclude liability from being imposed in a future case, but here it does not." Sawyer, 227 Wis. 2d at 150. I agree that problems of confidentiality may prevent the Johnsons from being able to prove their case, but I cannot agree that they should not be allowed to try.

¶ 23. It is better to decide cases that come to us with a record than those that do not. With a record, we need not speculate on what might or might not be proven. We can write a narrow opinion that does not venture far into the unknown facts of future cases. Even summary judgment cases have a better record than the one before us now. The trial court granted the defendants' motions to dismiss. Were I writing for the majority, I would let the Johnsons try to prove their case against the therapists.

¶ 24. Nor do I believe that WlS. Stat. § 893.55(1) (1997-98), the applicable statute of limitations, bars the Johnsons' claims against Rogers Memorial Hospital. Although the Johnsons' complaint could have been more specific, a reasonable inference from the facts alleged would be that the Johnsons' daughter's care at Rogers continued until at least October 28, 1993. The complaint, filed on May 29, 1996, was filed within the required three years.

¶ 25. Because I conclude that the trial court erroneously granted the defendants' motions to dismiss, I respectfully dissent.

       This case reaches us on a motion to dismiss where all allegations in the pleadings and the reasonable inferences therefrom are taken as true for purposes of this appeal. See Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 143, 549 N.W.2d 714, 715-16 (1996).

       The South Street Clinic was dismissed prior to the circuit court's decision on the motion to dismiss, which is the subject of this appeal.

       The pleadings state broader claims for the injuries on behalf of the Johnsons, such as the loss of their relationship with Charlotte. However, those claims were not pursued during this appeal, nor could they be maintained. See Estate of Wells v. Mount Sinai Med. Ctr., 183 Wis. 2d 667, 677-78, 515 N.W.2d 705, 709 (1994) (concluding there is no claim on behalf of a parent for the loss of society and companionship of an adult child).

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

       A psychologist is a health care provider. See Wis. Stat. § 146.81(l)(h).

       Wis. STAT. § 146.82(1) provides in relevant part:
      Confidentiality of patient health care records. (1) CONFIDENTIALITY. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consfent of the patient or of a person authorized by the patient.

       Contrary to the assertion in the dissent, the public policy concern we rely on is articulated in Sawyer v. Midelfort, 227 Wis. 2d 124, 595 N.W.2d 423 (1999). "Because the patient holds the privilege of confidentiality, the defendants in third-party actions may not be able to successfully defend themselves, for they will not be able to breach their duty of confidentiality to their patients." See id. at 150, 595 N.W.2d at 436.

       As has been reported, there could be other sources for false memories. For example, they could result from the type of mental illness affecting the patient or suggestions the patient took from numerous stories of sexual abuse contained in the popular press, in movies and in novels. See Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention In Sexual Abuse Survivor Therapy, 109 Hárv. L. Rev. 549 (1996).

       The Johnsons included Rogers Memorial in their third-party medical malpractice claim under an agency theory. Our conclusion that their claims for a third-party injury from medical malpractice may not proceed applies with equal force to those medical malpractice claims against the hospital based on agency.


author: DEININGER, J. DYKMAN, P.J.

text:
    Department of Revenue, Petitioner-Respondent, v. Johnson Welding & Manufacturing Company, Inc., a/k/a Johnson Truck Bodies, Respondent-Appellant.
    Court of Appeals

      No. 99-2429.

      Submitted on briefs March 3, 2000.

    Decided July 13, 2000.

    2000 WI App 179
    (Also reported in 617 N.W.2d 193.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven R. Duback and Patricia A. Hintz of Quarles & Brady LLP, Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peter C. Anderson, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, P.J., Eich and Deininger, JJ.
   DEININGER, J.

¶ 1. Johnson Welding & Manufacturing Company, Inc., appeals a circuit court order which reversed a decision of the Tax Appeals Commission. The commission concluded that the sale by Johnson to a Minnesota corporation of certain truck bodies was exempt from Wisconsin sales tax under Wis. Stat. § 77.54(5)(a) (1997-98). For the reasons which follow, we conclude that the commission correctly determined that the sale was exempt from sales tax, and accordingly, we reverse the appealed order.

BACKGROUND

¶ 2. Wisconsin Stat. § 77.54(5) provides, in relevant part, as follows: "The gross receipts from the sale of... truck bodies sold to persons who are not residents of this state and who will not use such . . . trucks for which the truck bodies were made in this state otherwise than in the removal of such . . . trucks from this state [are exempted from the taxes imposed by this subchapter]" (emphasis added). See § 77.54(5)(a). The dispute in this case is over the meaning of the emphasized phrase, when the purchaser of truck bodies is a corporation which does a significant volume of business in Wisconsin but is incorporated elsewhere. The Tax Appeals Commission found the following facts, which are largely undisputed:

1. [Johnsonjs principal place of business is located in Rice Lake, Wisconsin. • It has been engaged in the business of manufacturing and selling truck bodies in Rice Lake since 1931.
2. All of the truck bodies involved in this case were manufactured by [Johnson] in Rice Lake, sold to Schwan's Sales Enterprises, Inc. ("Schwan's")... and delivered to Schwan's representatives at [John-sonjs Rice Lake plant. Schwan's is [Johnsonjs largest customer and has been for many years.
3. Schwan's is a corporation organized and existing under the laws of the State of Minnesota. It was .incorporated under the laws of Minnesota on April 7, 1964, and has been continuously in existence and incorporated under the laws of Minnesota since that date. Its corporate headquarters are, and at all times during its existence has been, in Marshall, Minnesota. The address of its corporate headquarters is 115 West College Drive, Marshall, Minnesota 56258-1796.
4. Schwan's does business in all 50 states of the United States.
5. [For the three years immediately preceding its purchase of the truck bodies, Schwan's made approximately 3.75% of its total sales in Wisconsin, maintained approximately 2.5% of its fixed assets here, and paid about 3.2% of its payroll to Wisconsin-based employees. During this time, Schwan's had higher sales and payroll in only six or seven states, and a larger fixed asset value in eight or nine. In each year, Schwan's Wisconsin sales totaled some $70 million, its Wisconsin payroll was about $14 million, and its fixed asset value in this state averaged over $17.5 million. The total number of Schwan's employees in Wisconsin ranged from 822 to 907 for the years in question.]
6. Schwan's has permanent places of business at 19 locations throughout Wisconsin.
7. ... Schwan's purchased a total of 28 truck bodies from [Johnson]. Three of these truck bodies were installed on trucks assigned by Schwan's to Schwan's depots located in Wisconsin. The other 25 truck bodies were installed on trucks assigned by Schwan's to Schwan's depots located in Indiana, Washington, Iowa, Missouri, Illinois, Minnesota, Michigan, Ohio, Pennsylvania, New Mexico, Tennessee, New York, and Arizona. These 25 trucks have not been and will not be used by Schwan's in Wisconsin otherwise than in removing them from [Johnson]'s plant in Rice Lake, Wisconsin, at the time of Schwan's taking initial delivery of the truck bodies which petitioner had installed on their chassis. When initial delivery was taken, the 25 trucks were all picked up and directly removed from [ Johnson]'s Rice Lake plant by a Schwan's driver to Schwan's principal place of business in Marshall, Minnesota, after which they were assigned to the various non-Wisconsin locations described above.
8. [Johnson] charged Schwan's and collected 5.5% Wisconsin state and county sales tax on all 28 truck bodies it sold to Schwan's . . . and it remitted such tax to [the Department of Revenue].
9. Based on information furnished to [Johnson] by Schwan's that 25 of the 28 truck bodies were — after initial removal from Rice Lake to Schwan's locations in Marshall, Minnesota — assigned by Schwan's to be used at depots located outside Wisconsin, [Johnson] prepared and filed with [the department] a claim for refund seeking recovery of the . . . Wisconsin sales tax it had charged and collected from Schwan's with respect to the 25 non-Wisconsin destination truck bodies.
10. [Johnson]'s claim for refund was filed . . . in the form of an amended sales and use tax return .... The claim for refund was for a total of $28,806.26 of Wisconsin sales tax [Johnson] had collected and paid to [the department], measured by the aggregate of $523,748 in sales prices paid for the 25 non-Wisconsin destination truck bodies described in ¶ 7., above.
11. [Johnson]'s basis for seeking recovery of the sales tax was and is that the sales of the 25 non-Wisconsin destination truck bodies to Schwan's are exempt under § 77.54(5)(a), Wis. Stats., because they were sales made to a person who is not a resident of Wisconsin and who will not use the trucks for which the truck bodies were made otherwise than in their removal from Wisconsin.
12. [The department] denied [Johnson]'s refund claim....
13. ... [Johnson] filed with [the department] a petition for redetermination objecting to the denial of its refund claim.
14. ... [The department] denied [Johnson]'s petition for redetermination.

¶ 3. Johnson appealed the department's denial of its claim for a sales tax refund to the commission, which reversed the department's action. The commission noted that the term "resident" for purposes of the sales tax exemption in question is not defined by either statute or administrative rule, and "there have been no Wisconsin court cases interpreting the word 'resident' as applied to a corporation for sales and use tax purposes." However, the commission reasoned that "because Wisconsin courts . . . interpreting other Wisconsin taxation statutes, have consistently found a corporation's residence to be its state of incorporation," and because "there is no language in Chapter 77 or anywhere in our case law even implying a different definition for sales tax purposes," the legislature presumably intended the same definition to apply in Wis. Stat. § 77.54(5)(a).

¶ 4. On the department's petition for review of the commission's decision, the circuit court concluded that, although the commission's interpretation was reasonable, "it is more reasonable to determine residency for purposes of sales tax exemptions under § 77.54(5)(a) based on the nature and extent of business activities in Wisconsin. ..." The court therefore reversed the commission's determination, and Johnson appeals the circuit court's action.

ANALYSIS

¶ 5. As the commission acknowledged in its decision, statutes granting tax exemptions are "matters of legislative grace," and a taxpayer who claims an exemption must establish that the property or transaction at issue is clearly within its terms, with all doubts being resolved in favor of taxability. See Department of Revenue v. Greiling, 112 Wis. 2d 602, 605, 334 N.W.2d 118 (1983). "However, the interpretation of an exemption need not be unreasonable or the narrowest possible." Id.

¶ 6. Our role is to determine whether the commission erred in concluding that Johnson established that its sale of truck bodies to Schwan's was clearly within the terms of the exemption from sales tax granted under Wis. Stat. § 77.54(5)(a). We review the commission's determination directly, not the circuit court's decision to reverse it, and we owe no deference to the circuit court's analysis on this question of statutory interpretation. See Citizens' Util. Bd. v. Public Serv. Comm'n, 211 Wis. 2d 537, 543-44, 565 N.W.2d 554 (Ct. App. 1997). Whether we should defer to the commission's interpretation of the term "resident" in § 77.54(5)(a), however, and if so, to what extent, are matters in dispute between the parties.

¶ 7. The supreme court has described the hierarchy of deference under which a court is to review an administrative agency's statutory interpretation as follows:

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

Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992) (citations omitted). The department, not surprisingly, urges us to review the commission's interpretation de novo, while Johnson argues that we must give it "due weight." We agree with Johnson that the commission's interpretation of corporate residency for purposes of the sales tax exemption under review is entitled to due weight deference from this court.

¶ 8. We explained in Zignego Co., Inc. v. DOR, 211 Wis. 2d 819, 823-24, 565 N.W.2d 590 (Ct. App. 1997), that we will give due weight deference to the commission's interpretation of a statute if it "has some experience in an area, but has not developed the expertise that necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court" (citing UFE Inc. v. LIRC, 201 Wis. 2d 274, 286-87, 548 N.W.2d 57 (1996)). Our decision to accord due weight deference rests largely on our recognition that the legislature has charged the commission with interpreting and enforcing the taxation statutes, and on the fact that the commission has "had at least one opportunity to analyze the issue and formulate a position... See UFE Inc., 201 Wis. 2d at 286.

¶ 9. The commission has previously considered whether a corporation is a resident of Wisconsin for purposes of exemption from the state's sales tax under Wis. Stat. § 77.54(5)(a). See K-C Aviation, Inc. v. DOR, 91-S-177, 1994 WL 182752 (Wis. Tax App. Comm'n May 9,1994). At issue was whether the refurbishing by a Wisconsin company of aircraft owned by certain corporations qualified for the exemption as "aircraft . . . sold to persons who are not residents of this state," which parallels the exemption for truck bodies under § 77.54(5)(a). The commission concluded that the department erred in deeming the purchaser-corporations Wisconsin residents solely because they did "business in this state as evidenced by . . . holding a Wisconsin Seller's Permit and/or filing of Wisconsin tax returns." Id. at *2. The commission also concluded that the record before it "contains no facts which would bring the questioned corporations within the ambit" of precedents from other states which had found residency for sales tax purposes based on the existence of significant business volume within their states. Id. at *4. It thus left open the question of whether any of the purchaser-corporations "may be a Wisconsin resident within the meaning of § 77.54(5)(a), depending on the nature and extent of [its offices, employees and sales in Wisconsin]." Id. at *3.

¶ 10. Because of the commission's second conclusion in K-C Aviation, the department argues that we should not accord any deference to the commission's present interpretation. The department notes, correctly, that de novo judicial review of the commission's interpretation of a statute is appropriate if its "position on the issue has been so inconsistent so as to provide no real guidance." See Madison Newspapers, Inc. v. DOR, 228 Wis. 2d 745, 759, 599 N.W.2d 51 (Ct. App. 1999). We disagree, however, that this has occurred with respect to the present issue.

¶ 11. As we have noted, the commission in its KC Aviation decision left open the question of whether a corporation domiciled in another state, but which does significant business in Wisconsin, may be deemed a resident of this state for sales tax questions. It returned to the question in its present ruling, with a record before it establishing that the purchaser in this case, Schwan's, did indeed have a significant volume of sales and business activity in Wisconsin. In its present ruling, the commission noted its earlier discussion of the issue, but declared it "unsupported dictum" because "no specific facts" had been before it on which the issue might have been addressed. It then reconciled its holding and discussion in K-C Aviation with its present conclusions:

We then [in K-C Aviation] unequivocally found, as we do here, that in the absence of specific statutory authority, the [department]'s denial of non-residency under WlS. Stat. § 77.54(5)(a) was improper. In the case before us, the determining factor in our conclusion that a foreign corporation is a non-resident for purposes of § 77.54(5)(a) is that no provision exists in Chapter 77 which would include petitioner, a Minnesota corporation, as a Wisconsin "resident" for sales tax purposes.

¶ 12. We conclude that the commission's present interpretation of the words "residents of this state," as used in WlS. STAT. § 77.54(5)(a), in no way contradicts its principal ruling in K-C Aviation that a foreign corporation does not become a "resident" for sales tax purposes "solely by reason of its doing business in this state." Because the necessary facts and legal arguments were first squarely presented in the present appeal, the commission's present ruling addresses and resolves the issue it deferred in its prior decision. We thus do not view the commission's present decision as being inconsistent with its ruling in K-C Aviation, and the commission has provided "real guidance" on the issue in its present decision.

¶ 13. Thus, in view of the commission's statutory mandate to rule on issues of Wisconsin tax law, and its experience, albeit limited, in addressing the present issue, we accord its interpretation of WlS. Stat. § 77.54(5)(a) due weight deference. Accordingly, we will uphold its interpretation, so long as it is reasonable and comports with the purpose of the statute, and provided that a "more reasonable interpretation" is not available. See Madison Newspapers, Inc., 228 Wis. 2d at 758-59.

¶ 14. Neither WlS. Stat. ch. 77 nor any department rule defines the term "residents of this state" as used in Wis. Stat. § 77.54(5)(a). Johnson asserts, and the commission concluded, that the term, when applied to a corporation, means a corporation domiciled in Wisconsin, that is, one that is incorporated under the laws of this state. In support, each cites the Wisconsin Supreme Court's similar conclusion regarding corporate residence for purposes of taxing unapportioned income. See Briggs & Stratton Corp. v. Department of Taxation, 248 Wis. 160, 21 N.W.2d 441 (1946). The department argues, and the circuit court concluded, that a corporation's residence for the purposes of this sales tax exemption should turn on "the nature and extent of [its] business activities in Wisconsin." In support of this interpretation, the department points to a decision of the California Court of Appeals construing a virtually identical exemption from the California sales tax. See Garrett Corp. v. State Bd. of Equalization, 189 Cal. App. 2d 504, 510-11 (Cal. Ct. App. 1961) (concluding that "to adopt the view that the [purchaser-corporations] did not have a factual abode in this state ... would be simply unrealistic in light of the uncontra-dicted facts. Both companies ... had places of business in California staffed by numerous employees and grossing millions of dollars during the years in question").

¶ 15. We conclude that the disputed term is thus ambiguous, in that the legislature has not defined it and reasonably well-informed persons could (and do) differ on its proper meaning. See UFE Inc., 201 Wis. 2d at 283. Accordingly, under our "due weight deference" standard of review, we will accept the commission's interpretation resolving the ambiguity, unless we are convinced that the department's proffered alternative is more reasonable. See id. at 288. We are not so convinced.

¶ 16. First, we agree with the commission that the legislature, when it enacted the exemption in 1961, was presumedly aware of the supreme court's earlier holdings that, for income tax purposes, a corporation's residence is determined by its state of incorporation. Cf. State v. Johnson, 207 Wis. 2d 239, 246, 558 N.W.2d 375 (1997) (concluding that courts may presume the legislature is aware of prior judicial interpretations of statutes). The department, in attempting to refute the commission's reasoning in this regard, and Johnson's argument to the same effect, asserts that the legislature should not be presumed to have intended that the supreme court's interpretation of corporate residence for income tax purposes would also apply to its newly enacted sales tax statute. Rather, it argues that it is more reasonable to conclude that the Wisconsin legislature intended to import the California definition of corporate residence, as set forth in the previously cited Garrett decision, because of the similarity of the language employed in the Wisconsin and California statutes. We reject this argument. It is no more reasonable to assume that the legislature intended to import a freshly-minted judicial construction of a statute from a distant state, than it is to presume the legislature's awareness of the Wisconsin Supreme Court's consistent construction over a twenty-year period of an analogous term in our own tax statutes.

¶ 17. We also agree with Johnson that it is not more reasonable to adopt the department's proposed "facts and circumstances" test for corporate residence under Wis. Stat. § 77.54(5)(a) than to opt for the "bright line" rule enunciated in the commission's ruling. The circuit court endorsed the department's interpretation that "whether Schwan's is a resident of Wisconsin within the meaning of § 77.54(5)(a). . . depends on the nature and extent of Schwan's business activities in Wisconsin." After reviewing the commission's findings with respect to Schwan's business activities, the court concluded that those activities were "such that Schwan's is a resident," and that its purchase of truck bodies from Johnson was thus not exempt under the statute. The trial court, however, did not indicate in its decision how much business activity in Wisconsin was enough to declare a foreign corporation a state resident for purposes of the sales tax exemption statute.

¶ 18. Johnson points out that during these proceedings, the department has variously articulated tests that would deem a corporation to be a resident if it has a "substantial business presence in Wisconsin," a "permanent business presence," and finally a "substantial, permanent presence in Wisconsin." The department, however, like the circuit court, avoids discussing how much business activity in Wisconsin might be required for a corporation's "business presence" to be "substantial," or "permanent," or both. The department concedes that "[s]ome line-drawing could be necessary" under its proffered interpretation, but claims that it would be "not so much as to render unworkable a standard other than place of incorporation." Although we recognize that "[i]n taxation, absolute certainty cannot be had or expected," see United States Plywood Corp. v. City of Algoma, 2 Wis. 2d 567, 581, 87 N.W.2d 481 (1958), aff'd sub nom. Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534 (1959), we cannot conclude that it is more reasonable to define a corporation's residency for sales tax purposes as being dependent upon varying facts and circumstances, than it is to define the term in a way that is easily ascertainable by taxpayers and the department's auditors alike.

CONCLUSION

¶ 19. Because the commission's interpretation is reasonable, and we have not been presented with an interpretation that is more reasonable, we reverse the appealed order and direct that, on remand to the circuit court, an order be entered affirming the commission's decision and order.

By the Court. — Order reversed and cause remanded.

DYKMAN, P.J.

¶20. (dissenting). For the three years preceding January 1997, Schwan's Wisconsin employees numbered between 822 and 907. Its Wisconsin payroll was between $13.4 million and $14.2 million, and its Wisconsin sales were between $66.6 million and $74.2 million. The value of Schwan's Wisconsin property was between $16.9 million and $18.5 million. While these figures might not place Schwan's on the list of the top ten Wisconsin corporations, it is not possible to describe Schwan's presence in Wisconsin as insignificant.

¶ 21. The applicable tax rule is well established by a substantial line of cases. "[T]ax exemption statutes 'are to be strictly construed against the granting of the same, and the one who claims an exemption must point to an express provision granting such exemption by language which clearly specif[ies] the same, and thus bring himself clearly within the terms thereof.' " Madison Newspapers, Inc. v. DOR, 228 Wis. 2d 745, 760, 599 N.W.2d 51 (Ct. App. 1999) (quoting La Crosse Queen, Inc. v. DOR, 208 Wis. 2d 439, 446, 561 N.W.2d 686 (1997)); see also Ramrod, Inc. v. DOR, 64 Wis. 2d 499, 504, 219 N.W.2d 604 (1974). "Any doubts or ambiguities as to whether the exemption applies are to be resolved in favor of taxation and against the person claiming the exemption." Madison Newspapers, 228 Wis. 2d at 760.

¶ 22. The majority concludes that the phrase "residents of this state" in Wis. Stat. § 77.54(5) is ambiguous, in that it might mean a corporation's state of incorporation, or it might mean a state where a corporation does significant business. I agree. Where the majority and I differ is the conclusion to be drawn from this observation. The majority concludes that since either of two definitions of "residents of this state" is reasonable, it will accept the definition chosen by the Tax Appeals Commission.

¶ 23. I conclude that courts and commissions alike are bound by published appellate court decisions, including Madison Newspapers, and the cases upon which Madison Newspapers relies. The majority cannot follow the Madison Newspapers rule requiring "language which clearly specif[ies] the [exemption]," 228 Wis. 2d at 760, and at the same time find in favor of Johnson where the exemption is ambiguous. The Tax Appeals Commission, the circuit court, and this court must apply the rule that ambiguities as to whether an exemption applies are resolved in favor of taxation. The majority's determination that the statute granting an exemption for truck bodies manufactured in Wisconsin is ambiguous should lead to only one conclusion: the truck bodies are subject to Wisconsin sales tax. That is what the circuit court concluded, and I agree. I therefore respectfully dissent.

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

         See Wis. Stat. § 73.01(4)(a) ("Subject to the provisions for judicial review . . . the commission shall be the final authority for the hearing and determination of all questions of law and fact arising under" appeals of the department's tax determinations.); see also WlS. Stat. § 77.59(6)(b) and Zignego Co., Inc. v. DOR, 211 Wis. 2d 819, 826, 565 N.W.2d 590 (Ct. App. 1997).

       We note that the commission (or its predecessor, the Wisconsin Board of Tax Appeals) also has experience in addressing the issue of a corporation's residence for purposes of Wisconsin's income tax, and that it has concluded that a corporation's "residence" in that context is also its state of incorporation. See Franan Enter., Inc. v. Wisconsin Dep't of Taxation, 5 WBTA 80 (1962); see also Briggs & Stratton Corp. v. Department of Taxation, 248 Wis. 160, 21 N.W.2d 441 (1946).

       The commission stated in its decision that the language at issue was first enacted in 1961, and both parties make similar assertions in their arguments to this court.