author: HOOVER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael W. Carlson, Defendant-Appellant.

    Court of Appeals

      No. 01-1136-CR.

      Submitted on briefs October 29, 2001.

      Decided November 13, 2001.

    2001 WI App 296
    (Also reported in 638 N.W.2d 646.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven L. Miller and Miller & Miller of River Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Eileen W. Pray, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., Peterson, J.

       Petition to review granted 1-29-02.

   HOOVER, PJ.

¶ 1. Michael Carlson appeals a judgment of conviction and an order denying postcon-viction relief after a jury found him guilty of second-degree sexual assault, as a repeater, contrary to Wis. Stat. §§ 940.225(2)(a) and 939.62(l)(c). He contends that one of the jurors could not understand English sufficiently to serve as a juror and therefore he is entitled to a new trial. We conclude that the trial court's finding that the juror understood English sufficiently to fairly and competently try the case was not clearly erroneous and that a new trial is therefore unnecessary. We affirm the judgment and order.

Background

¶ 2. The Brown County clerk of court sends a juror qualification questionnaire to prospective jurors. One of the questions is whether the prospective juror understands the English language. If a person responds "no" to that question, it is the clerk of court's practice to automatically disqualify that person from jury duty and to remove the person's name from the list of prospective jurors.

¶ 3. One of the jurors who served on Carlson's jury Tony Vera, checked "no" on the jury qualification questionnaire in response to the question, "Can you understand the English language?" However, for an unexplained reason, the clerk did not automatically disqualify Vera. His name was entered into the computer for random jury selection, and he was placed on the jury panel for Carlson's case.

¶ 4. During voir dire, the jury panel was not asked whether any of the jurors had difficulty understanding English. No one asked Vera any individual questions in voir dire. During its deliberations, the jury sent a note to the judge that stated, "We believe that you need to talk to Tony. It is our belief that he does not understand most of the trial proceedings. We would like you to evaluate this situation." The court set forth three possible responses to the note and discussed the options with counsel. Counsel presented concerns that questioning Vera might be seen as pressuring him to change his vote. In light of those concerns, the court decided not to take any action on the note.

¶ 5. The jury found Carlson guilty. The trial court polled the jury and each juror, including Vera, individually answered "yes" to the question, "Is that your verdict?"

¶ 6. Carlson filed a motion for postconviction relief requesting a new trial based on Vera's alleged inability to understand English. The trial court held an evidentiary hearing on Carlson's postconviction motion. At the hearing, Vera, Carlson's counsel, the clerk of court, Vera's work supervisor and another juror testified.

¶ 7. Carlson's counsel and the prosecutor questioned Vera at length in English and without the aid of an interpreter. Vera testified that he has lived in the United States for almost twenty years and that he became a citizen eight years ago. Vera took the written test to obtain his driver's license and passed it. He testified that to become a citizen he passed a citizenship test that had one oral question in English and one written question in English. Vera testified that he had studied English as a second language in Green Bay. He stated that he had read and filled out the jury qualification questionnaire by himself. He testified that he liked to watch the Discovery Channel on television and that he also watched and understood football. Vera testified that he had filed income tax returns with the help of H&R Block, a tax preparer. He stated he went out to eat at restaurants and ordered off the menu in English. When asked to describe what he does to get ready for work, Vera was able to explain after the question was rephrased.

¶ 8. Carlson's counsel asked Vera whether he understood the witnesses at Carlson's trial. The State objected on the basis of Wis. Stat. § 906.06(2), and the court sustained the State's objection. Vera then testified as an offer of proof that he did not understand the witnesses or judge at trial, that he was confused during the trial, and that he had tried to tell the bailiff before jury selection that he did not speak English.

¶ 9. Another juror testified that Vera did not seem to understand her when she asked him for a cigarette during one of the breaks prior to deliberations. Due to the court's ruling with respect to Wis. Stat. § 906.06(2), counsel submitted a written offer of proof concerning events that occurred after the case was submitted to the jury. The offer of proof alleged that Vera had difficulty ordering a sub sandwich, that he did not meaningfully participate in the deliberations, and that the jurors asked the bailiff for an interpreter for Vera.

¶ 10. Vera works on an assembly line at Krieger International, a furniture factory. Chad Watermolen, Vera's work supervisor, testified that Vera had problems with English at work. He also testified that Vera had been let go from his job but was brought back because he was a good worker. Watermolen further testified that Vera drove an automobile to work and that they went fishing together. He stated that Vera was able to get a fishing license and understood the arrangements for going fishing. During Watermolen's testimony, Vera entered the courtroom. The court asked Vera to wait outside the courtroom, and Vera responded to these oral directions by exiting the courtroom.

¶ 11. At the close of the testimony, the trial court noted: "This all rises and falls on whether . . . Mr. Vera understands the English language." The court recognized that due process requires a juror to have sufficient understanding of the English language to participate in jury deliberations. The parties agreed that, if the court were to find that Vera had a sufficient understanding of the English language to serve as a juror, that finding would be dispositive of all the issues raised in Carlson's postconviction motion.

¶ 12. The trial court found that Vera had "a sufficient understanding of the English language to serve as juror based upon the record that was made here." The court based its finding on "all of the evidence that has been presented to the court on whether Mr. Vera had a sufficient understanding of the English language to allow him to participate as a juror in our system." The court denied Carlson's motion for a new trial because it found that Vera had sufficient understanding of the English language to serve as a juror. Carlson now appeals.

Issue

¶ 13. Carlson argues that the trial court must accept Vera's subjective opinion (and that of another juror) that he did not understand English well enough to fairly and competently hear the case. Carlson also argues that the court did not identify a standard for comprehension or, alternatively, that it did not apply a standard consistent with due process. We disagree. Allowing a juror's subjective opinion as to his or her ability to comprehend testimony at trial would be an open invitation to mischievous attacks on verdicts. We conclude that the trial court properly considered all the evidence that informed on Vera's ability to comprehend English, and found that he understood English well enough to fairly and impartially hear the case, regardless of Vera's opinion. It applied the correct statutory standard. Because credible evidence supports the trial court's finding, it was not clearly erroneous.

Discussion

¶ 14. The trial court's findings of fact will be upheld unless they are clearly erroneous. Wis. Stat. § 805.17(2). The trial court determined that a new trial was unnecessary because Vera's level of English comprehension was sufficient to satisfy due process requirements. The decision to grant a new trial is within the trial court's discretion and will not be overturned absent an erroneous exercise of that discretion. State v. Yang, 196 Wis. 2d 359, 365, 538 N.W.2d 817 (Ct. App. 1995). We affirm the trial court's decision because the record shows that the court considered the facts of the case and arrived at a conclusion consistent with applicable case law. Id.

¶ 15. Carlson also argues that the trial court erred by excluding the evidence in Vera's and the other juror's offers of proof. He argues that this evidence was extraneous information and therefore was not barred by Wis. Stat. § 906.06(2). We disagree. Vera's statements, and what is essentially the opinion of the other juror, do not constitute extraneous prejudicial information improperly brought to the jury's attention. This proffered evidence is not information "coming from the outside." See State v. Broomfield, 223 Wis. 2d 465, 478, 589 N.W.2d 225 (1999) (citation omitted).

¶ 16. In Tanner v. United States, 483 U.S. 107, 117 (1987), the Court interpreted the federal counterpart to Wis. Stat. § 906.06(2) and drew a distinction between external and internal influences on juries. The Court determined that jurors are not competent to testify about internal matters that may have influenced their verdict. Tanner, 483 U.S. at 117-18. It decided further that whether a juror sufficiently understood the English language was not a question of extraneous influence. Id. at 119. Evidence concerning Vera's understanding of English would be an internal influence on the verdict. Under § 906.06(2), Vera and the other juror were incompetent to testify about the effects of Vera's comprehension of trial testimony on the jury's deliberations.

¶ 17. In the context of a hearing-impaired juror, a criminal defendant has a due process right to be tried by jurors who comprehend testimony. State v. Turner, 186 Wis. 2d 277, 284, 521 N.W.2d 148 (Ct. App. 1994). Carlson asserts that the correct standard of English comprehension for jury service is that the juror "must substantially comprehend the evidence and arguments presented at trial." Wisconsin Stat. § 756.02 requires only that prospective jurors "understand the English language" in order to serve as a juror.

¶ 18. In State v. Coble, 100 Wis. 2d 179, 301 N.W.2d 221 (1981), our supreme court determined that the Milwaukee County juror qualification questionnaire was too restrictive in requiring a prospective juror to be able to write in English. Id. at 196. "The history of chapter 756, Stats., demonstrates the development of a legislative policy favoring the reduction of statutory exemptions, exclusions and disqualifications so that the jury would be selected from a broad cross-section of the citizenry. ..." Id. The court determined that a person could have sufficient understanding of the English language to serve on a jury without being able to write in English. Id. at 191-92.

¶ 19. Here, Vera testified at the postconviction evidentiary hearing. When a challenged juror testifies, the trial court is in the best position to determine the juror's level of understanding. See State v. Brunette, 220 Wis. 2d 431, 441, 583 N.W.2d 174 (Ct. App. 1998) ("We defer to the trial court's decision particularly because of the court's ability to judge the demeanor of the juror . . .").

¶ 20. The trial court made specific findings of fact. The court indicated that filling out a jury qualification questionnaire indicated "some fundamental ability" to understand English. Vera testified that he read and filled out the jury questionnaire by himself. The court noted that Vera responded appropriately to some "very sophisticated questions" posed by both counsel. It pointed out that Vera appeared in court "without the need of an interpreter to assist him in responding to questions."

¶ 21. Carlson suggests that the court placed too much reliance on the fact that Vera had passed a citizenship test. The court found the fact that Vera had to pass an English test to become a citizen a "helpful" indicia of his ability to understand English. The court noted that, in order to pass the test, Vera had to answer a written question and an oral question in English. However, the court did not rely solely on the citizenship test. The court also noted that Vera would have had to understand English to pass a written test and a road test to get a driver's license. Finally, the court relied on the fact that Vera was gainfully employed, described as a good employee, and able to enjoy community services and activities as an indication of his ability to understand English.

¶ 22. The trial court also made the following specific findings at the postconviction evidentiary hearing:

Mr. Vera was asked to leave the courtroom and when asked promptly removed himself from the courtroom. Mr. Vera took the oath that was administered and responded appropriately. Mr. Vera took the witness stand and responded to questions. Mr. Vera has also participated in English as a second language class at the Family Service Association. He also testified that he went to college but quit because he couldn't understand the teachers.
When asked to describe what he does to get ready for work, Mr. Vera said he didn't understand the question and when asked again he then responded, well, I take a shower, I get dressed and then I go to work. He told us about the fact that he was working third shift. His native language is Lao.

¶ 23. The trial court found the ultimate fact that Vera sufficiently comprehended English based on the underlying facts evinced at the postconviction hearing. The court's finding was not erroneous. Moreover, the court's decision not to grant a new trial was an appropriate exercise of discretion because it found Vera had a sufficient understanding of English to ensure Carlson's trial was fair and impartial. A reasonable judge could conclude that Carlson was not entitled to a new trial because Carlson already had a fair and impartial trial. The finding properly rested on evidence before the court rather than the subjective opinions of Vera and one other juror. The court properly determined Vera's English comprehension from the testimony and did not rely on Vera's inadmissible conclusory opinion of his own understanding of English.

¶ 24. Carlson also argues that (1) his statutory rights to a qualified jury were prejudicially violated and (2) his tried counsel was constitutionally ineffective. Both of these arguments depend on Carlson's contention that Vera did not sufficiently understand English so as to serve as a juror. Because we sustain the trial court's finding that Vera sufficiently understood English, we need not address these arguments.

¶ 25. We conclude that the trial court considered the evidence that informed on Vera's ability to understand English and found that he understood English well enough to ensure Carlson a fair and impartial trial.

By the Court. — Judgment and order affirmed.

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

       Judge Michael G. Grzeca presided over the jury trial, entered the judgment of conviction and sentenced Carlson. Judge Mark A. Warpinski, who replaced Judge Grzeca, conducted the evidentiary hearing on Carlson's postconviction motion and issued the order denying it.

       WisConsin Stat. § 906.06(2) provides:
      Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying he received.

       WISCONSIN Stat. § 756.02 provides that:
      Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen and able to understand the English language is qualified to serve as a juror in that circuit unless that resident has been convicted of a felony and has not had his or her civil rights restored.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. William P. Eckola, Defendant-Respondent.
    Court of Appeals

      No. 01-1044-CR.

      Submitted on briefs October 15, 2001.

      Decided November 13, 20001.

    2001 WI App 295
    (Also reported in 638 N.W.2d 903.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John F. Truby, assistant district attorney.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Gregory A. Parker of Kachinsky & Petit Law Offices.

    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. William Eckola was convicted of operating a motor vehicle with a prohibited alcohol concentration, sixth offense, contrary to Wxs. Stat. § 346.63(l)(b) The State argues that the circuit court erroneously exercised its discretion by placing Eckola on probation without requiring him to serve at least the presumptive minimum period of incarceration required by Wis. Stat. § 346.65(2)(e). We agree. Therefore, we reverse the order and remand for resentencing.

BACKGROUND

¶ 2. Eckola was charged with sixth offense prohibited alcohol concentration (PAC), a felony. He waived his preliminary hearing and was bound over for trial. After the information was filed, Eckola entered a plea of no contest. The court accepted his plea and found him guilty.

¶ 3. At sentencing, the State informed the circuit court that Wis. Stat. § 346.65(2)(e) required a minimum of six months' imprisonment for sixth offense PAC. The court stated that under the administrative guidelines, it "has discretion as to the length of the jail or prison sentence." See Wis. Stat. § 346.65(2m)(a). The circuit court then withheld sentence and placed Eckola on probation for a period of five years. As conditions of probation, Eckola was ordered to maintain absolute sobriety and follow treatment recommended by his probation agent. No period of incarceration was required. This appeal followed.

STANDARD OF REVIEW

¶ 4. Sentencing is within the broad discretion of the circuit court, and we will not overturn a sentencing decision unless there has been a clearly erroneous exercise of discretion. State v. Gardner, 230 Wis. 2d 32, 48, 601 N.W.2d 670 (Ct. App. 1999). An erroneous exercise of discretion occurs when the court errs in its application of the law. If a court bases the exercise of its discretion upon an error of law, its conduct is beyond the limits of discretion. State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968).

DISCUSSION

¶ 5. The State contends that the circuit court erroneously exercised its discretion by placing Eckola on probation without requiring him to serve at least the presumptive minimum period of incarceration required by Wis. Stat. § 346.65(2)(e). According to the State, the court must impose a period of incarceration of at least six months as a condition of probation for a sixth offense PAC. See Wis. Stat. § 973.09(l)(d)l.

¶ 6. Wisconsin Stat. § 973.09(1)(a) allows the circuit court to place a defendant on probation for a criminal violation. The statute grants the court broad discretion in fashioning a convicted individual's conditions of probation. However, under § 973.09(l)(d), if a circuit court orders probation, the court is required to confine a defendant for at least the "mandatory or presumptive minimum period."

¶ 7. Under Wis. Stat. § 346.65(2)(e), the penalty for PAC states that a person "shall be fined not less that $600 nor more than $2,000 and imprisoned for not less than 6 months nor more than 5 years if the number of convictions . . . equals 5 or more. . . ." Eckola was convicted of sixth offense PAC. At issue is whether the circuit court is required to impose the minimum imprisonment of six months as a condition of probation for sixth offense PAC.

¶ 8. In earlier cases, the circuit court was precluded from ordering probation for a convicted individual when the offense carried with it a mandatory or presumptive minimum sentence. In State v. Duffy, 54 Wis. 2d 61, 65, 194 N.W.2d 624 (1972), our supreme court concluded that a court must impose a five-day jail sentence where the legislature provided that a person convicted of driving after license revocation "shall be imprisoned not less than 5 days." Wis. Stat. § 343.44(2) (1969). The court held that to allow probation under Wis. Stat. § 973.09 (1969), in light of § 343.44(2), "would do violence to principles of statutory construction and would contravene the intent of the legislature." Duffy, 54 Wis. 2d at 64.

¶ 9. Additionally, in State v. Meddaugh, 148 Wis. 2d 204, 435 N.W.2d 269 (Ct. App. 1988), the State successfully appealed a judgment that imposed a thirty-day jail term as a condition of probation following a conviction for third offense OWL The penalty statute for third offense OWI required that the defendant be imprisoned not less than thirty days nor more than one year. Wis. Stat. § 346.65(2)(c) (1988-89). We concluded that the defendant could not be placed on probation because probation was not a sentence. Meddaugh, 148 Wis. 2d at 211.

¶ 10. Subsequent to Duffy and Meddaugh, the legislature enacted Wis. Stat. § 973.09(l)(d) (1991-92), which read:

If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if that court requires, as a condition of probation, that the person be confined under sub. (4) for at least that mandatory or presumptive minimum period . .. This paragraph does not apply if the conviction is for any violation under § 346.63.

Under this new paragraph, the circuit court had the discretion to place a defendant on probation for any crime that required one year or less imprisonment. However, the court was required to order confinement for at least the mandatory or presumptive minimum period as a condition of probation. Initially, this paragraph did not apply to OWI or PAC violations.

¶ 11. In State v. DeLeon, 171 Wis. 2d 200, 490 N.W.2d 767 (Ct. App. 1992), we addressed Wis. Stat. § 973.09(1)(d) (1991-92) for the first time. De-Leon was facing a presumptive minimum sentence of one year's imprisonment for conspiring to possess with intent to deliver more than twenty-five grams of cocaine. Id. at 202. The circuit court placed DeLeon on probation and required six months in jail as a condition of the probation. Id. at 202-03. We reversed the sentence because § 973.09(l)(d) required the court to impose at least the presumptive one-year minimum period of confinement as a condition of probation. Id. at 204-05.

¶ 12. Later, Wis. Stat. § 973.09(l)(d) was amended. Section 973.09(1)(d)l now includes certain violations under Wis. Stat. § 346.63:

(1) Probation.
(d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if the court requires, as a condition of probation, that the person be confined under sub. (4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under s. 302.43 regarding the period of confinement. This paragraph does not apply if the conviction is for any of the following:
1. A violation under s. 346.63 (1) that subjects the person to a mandatory minimum period of imprisonment under s. 346.65 (2) (b) or (c).

Sections 346.65(2)(b) and (c) relate to penalties for second and third offense OWI and PAC. Thus, probation is now permitted for fourth and subsequent OWI and PAC violations, as long as the probation requires confinement for at least the mandatory minimum time period.

¶ 13. Here, the circuit court placed Eckola on probation for sixth offense PAC, but did not require him to serve any period of imprisonment as a condition of probation. At the sentencing hearing, the court was alerted to the statutory minimum six-month jail requirement. Nevertheless, the court stated that, "[u]n-der the administrative guidelines . . . the Court has discretion as to the length of the jail or prison sentence."

¶ 14. The circuit court's reference was apparently to Wis. Stat. § 346.65(2m)(a), which reads:

In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the level of the person's blood alcohol level is known, the court shall consider that level as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors.

Nothing in the statute authorizes the court to disregard the mandatory minimum sentencing requirements established by the legislature.

¶ 15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(l)(d) requires that the person be confined for at least the mandatory minimum period. Here Wis. Stat. § 346.65(2)(e) requires that a defendant be imprisoned for at least six months for fifth or greater offense PAC. Eckola was convicted of sixth offense PAC. Therefore, the court was required to confine Eckola for at least six months as a condition of probation.

¶ 16. When the circuit court has made an error that underlies the exercise of its discretion, we may not exercise the court's discretion for it. Rather, we are to remand to permit the court to exercise its discretion. Wisconsin Ass'n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980). We therefore reverse and remand for resentencing.

By the Court. — Order reversed and cause remanded.

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


author: BROWN, J.

text:
    Kenneth A. Volden, Plaintiff-Appellant, v. Loni Koenig, John Scholke, Mary Lautenschlaeger and Judy Siebert, Defendants-Respondents.
    Court of Appeals

      No. 01-0433.

      Submitted on briefs October 17, 2001.

    Decided November 14, 2001.

    2001 WI App 290
    (Also reported in 638 N.W.2d 906.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Kenneth A. Volden, pro se.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Carl K. Buesing of Hopp, Powell, Bauer, Donohue & Buesing of Sheboygan.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. We are asked to determine whether the patients' rights law contained in Wis. Stat. § 51.61 (1999-2000) applies to an individual while he or she is in the custody of the sheriff pending resolution of an involuntary commitment hearing. We determine that Wis. Stat. ch. 980 detainees are "patients" as that term is defined in § 51.61 only when they are receiving treatment, care or services in a treatment facility. Because an individual in the custody of the sheriff pending an involuntary commitment hearing is not in a facility to receive treatment, care or services, we conclude that he or she is an inmate to whom the patients' rights law does not apply.

¶ 2. In February 1998, Kenneth A. Volden became subject to a Wis. Stat. ch. 980 civil commitment petition filed in the circuit court of Sheboygan county. Subsequently, the circuit court issued a Writ of Habeus Corpus Ad Prosequendum requiring the Sheboygan county sheriff to transport and detain Volden for further proceedings. Based on that writ, Volden arrived at the Sheboygan county jail on October 23, 1998, where he remained until October 29, 1998, when he was returned to the Wisconsin Resource Center. Pursuant to a subsequent writ, the sheriff again retrieved and booked Volden into the Sheboygan county jail on December 14, 1998, where he remained for two days before returning to the Wisconsin Resource Center.

¶ 3. The health screening sheet completed upon Volden's October admission to the county jail indicated an ambiguity with respect to the issue of "special diet prescribed by doctor." There was a "yes" marked, but there was also a question mark between the words "doctor" and "lactovegetarian." In order to clarify the ambiguity, the jail nurse contacted the dietary section of the Wisconsin Resource Center. She was told that Volden adhered to a regular vegetarian diet, and that patients at the Wisconsin Resource Center have the option to elect a menu based on personal choice and not based on a medical or religious claim. Based on that conversation, the jail nurse concluded that Volden's dietary requests for a lactovegetarian diet were not for medical reasons but for personal reasons.

¶ 4. In anticipation of the December admission, the jail nurse was in further contact with the staff at the Wisconsin Resource Center regarding Volden's diet. This time she spoke to Dr. Norman Heinz, a psychiatrist. Heinz advised her that Volden had alternated between a lactovegetarian and regular vegetarian diet based on his personal choice. Again, the jail nurse determined that Volden's dietary wishes had no medical or religious basis. Accordingly, while Volden was in the custody of the sheriff during October and December he was served regular jail food without accommodation for his lactovegetarian preferences.

¶ 5. Volden filed pro se a complaint against the Sheboygan county sheriff, two officers and the jail nurse (the "County"). He alleged that while he was in custody at the Sheboygan county jail, he was a "patient" entitled to various patients' rights contained in Wis. Admin. Code ch. HFS 94. He demanded injunctive relief as well as monetary damages provided under Wis. Stat. § 51.61(7). The parties filed cross-motions for summary judgment; the trial court issued an oral decision in favor of the County and issued a written judgment on December 27, 2000.

¶ 6. We review summary judgment decisions de novo, applying the same methodology as the trial court. Tower Ins. Co. v. Carpenter, 205 Wis. 2d 365, 369, 556 N.W.2d 384 (Ct. App. 1996). That methodology is well established and we need not repeat it here except to note that summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M & I First Nat'l Bank v. Episcopal Homes Mgmt, Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995).

¶ 7. The patients' rights law contained in Wis. Stat. § 51.61 of Wisconsin's Mental Health Act guarantees certain health care, privacy and treatment rights to mentally ill patients. It provides that any patient whose rights are protected by § 51.61 may sue for a violation of those rights when the violation results in actual damages or was willfully and knowingly done. Sec. 51.61(7)(a), (b). These rights are further defined and clarified in Wis. Admin. Code HFS ch. 94.

¶ 8. Volden alleges that because he was denied a lactovegetarian diet and was filmed by a surveillance camera, his patient rights were violated and he is entitled to damages. In particular, Volden claims a violation of Wis. Admin. Code § HFS 94.24(4)(a), which states "[e]ach inpatient shall be provided a nutritional diet which permits a reasonable choice of appealing food served in a pleasant manner," and a violation of (4)(d), which states "[m]enu preparation shall take into account customary religious, cultural or strongly-held personal convictions of inpatients." He also asserts a violation of Wis. Admin. Code § HFS 94.18(1) which prohibits unauthorized recording, photographing, and filming of patients.

¶ 9. The patients' rights set forth in Wis. Stat. § 51.61 and Wis. Admin. Code § HFS 94.05-.31 apply to sexually violent persons committed under Wis. Stat. ch. 980. State v. Anthony D.B., 2000 WI 94, ¶ 13, 237 Wis. 2d 1, 614 N.W.2d 435. In this instance, however, we are required to determine whether a ch. 980 detainee retains the status of a patient entitled to the patients' rights law when he or she is outside the treatment facility. Volden points to no legal authority in support of his contention that an involuntarily committed person remains a "patient" while in the temporary custody of the sheriff. To the contrary, we are persuaded that while Volden was in the county jail, he was not a patient entitled to the protections of the patients' rights law.

¶ 10. As a preliminary matter, we note that Volden was placed in the Sheboygan county jail pursuant to court-ordered writs. The statute that authorizes execution of writs contemplates that individuals institutionalized under the care of the Department of Health and Family Services (DHFS) will be housed in the county jail. See Wis. Stat. § 782.45(2) ("the [DHFS] and the department of corrections, upon 48 hours' advance notice, shall release to any sheriff having a suitable jail approved by the department of corrections for this purpose any prisoner upon presentation of a writ of habeas corpus to the warden or superintendent of the institution which is detaining the inmate."). This statute further provides that during the term of this temporary incarceration, the inmate is not permitted to have visitors or to receive mail except as otherwise authorized. Id. These restrictions are directly contrary to the patients' rights rules contained in Wis. Admin. Code § HFS 94.19 ("Each inpatient shall be allowed to send and receive sealed mail. . . .") and § 94.21 ("Each inpatient shall be permitted to see visitors each day. . . ."). Consequently, this statute comports with our determination that an individual institutionalized under the care of DHFS is not entitled to the protections of the patients' rights law while in the temporary custody of the sheriff.

¶ 11. This conclusion is further corroborated by the definition of "patient" contained in the patients' rights statute and incorporated into ch. 94 of the administrative code. See Wis. Admin. Code § HFS 94.02(32). Wisconsin Stat. § 51.61(1) defines the word "patient" as:

[A]ny individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed under this chapter or ch. 48, 55, 971, 975 or 980, or who is transferred to a treatment facility under s. 51.35(3) or 51.37 or who is receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437 or in a private treatment facility.

The attorney general interpreted this paragraph in determining whether a Wis. Stat. § 51.20 detainee was a patient subject to the right to be free from physical restraint while in the custody of the sheriff pending an involuntary commitment hearing. 71 Op. Att'y Gen. 183 (1982). The attorney general concluded that the detainee was not a patient within the definition of the statute because while in the sheriffs custody, the detainee was not in a facility to receive services, care or treatment. Id. We find the following reasoning of the attorney general persuasive and adopt it in this case:

Implicit in this definition is the fact that a patient is in a physical setting appropriate to receive "services," "care" or "treatment" for the conditions enumerated in sec. 51.61(1), Stats. The concept of receiving services, treatment or care is severely strained if a person is deemed to be receiving such services, treatment or care when in the custody of the sheriff for transport to, from and during an involuntary commitment hearing.

71 Op. Att'y Gen. at 184. Volden cannot reasonably argue that he received services or treatment during his confinement in the Sheboygan county jail. Furthermore, no reasonable interpretation of the phrase "treatment facility" would include the county jail. Therefore, we conclude, as did the attorney general, that Wis. Stat. § 51.61 applies only to "patients" and that individuals in the custody of the sheriff for transport to, from and during an involuntary commitment hearing do not retain the status and rights afforded to patients.

¶ 12. Based on the foregoing, we conclude that once Volden was removed from the Wisconsin Resource Center by execution of the writs, he was no longer a patient as that term is defined in Wis. Stat. § 51.61. Therefore, the rights and privileges applicable to inmates, rather than patients, applied to Volden while he was in the temporary custody of the sheriff. Volden does not assert a violation of the rights afforded to inmates while confined in the county jail. Therefore, we affirm the trial court's grant of summary judgment in favor of the County.

By the Court — Judgment affirmed.

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

       WISCONSIN Stat. § 51.01(19) defines "treatment facility" as any publicly or privately operated facility or unit thereof providing treatment of alcoholic, drug dependent, mentally ill or developmentally disabled persons, including but not limited to inpatient and outpatient treatment programs, community support programs and rehabilitation programs.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Vernon D. Fields, Defendant-Appellant.

    Court of Appeals

      No. 01-1177-CR.

      Submitted on briefs September 25, 2001.

      Decided November 14, 2001.

    2001 WI App 297
    (Also reported in 638 N.W.2d 897.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Kelly L. Goss, assistant attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 1-29-02.

   BROWN, J.

¶ 1. In this criminal procedure case, we are asked to determine whether an information containing a repeater allegation without identifying a specific prior conviction complied with the statutory prerequisites of Wis. Stat. § 973.12(1) (1999-2000) and due process. We agree with Vernon D. Fields that the pleadings in this case were insufficient to adequately allege a repeater enhancer under § 973.12(1). Nevertheless, we affirm the judgment and order of the trial court on the basis that the State's pre-plea submission of a certified copy of prior convictions constituted an amendment to the information, thereby curing its defects and providing Fields with the requisite notice of his repeater status before he pled to the charges.

¶ 2. On August 31, 2000, the State filed a criminal complaint charging Fields with battery against a peace officer in violation of Wis. Stat. § 940.20(2), a Class D felony. The criminal complaint did not contain any repeater allegation. Fields waived a preliminary hearing and, on October 2, 2000, entered a not guilty plea to an information that charged the same offense and alleged Fields' repeater status in the following manner:

AS TO DEFENDANT FIELDS & ACOSTA
By virtue of the defendant's status as a habitual criminal or "Repeater" as that term is defined in Section 939.62(2) of the Wisconsin Statutes, said period of incarceration can be increased by not more than six years, for a total of sixteen years, pursuant to Section 939.62(l)(b) of the Wisconsin Statutes.

At the October 2 hearing, the following exchange took place between the judge and Fields' counsel:

[The Court:] Let the record show an information has been filed with the court charging the defendant with one count of battery to a peace officer with the additional provision that he is charged a repeater and would therefore upon conviction be subject to a fine not to exceed $10,000, imprisonment not to exceed 16 years, or both. Does the defendant acknowledge having received a copy of the information?
[Fields' attorney:] Yes. We acknowledge receipt of a copy of his information at this time and waive any further reading at this time subject to any objections.
[The Court:] And the defendant's plea to the charge?
[Fields' attorney:] Judge, at this time we would be entering a plea of not guilty to the information.

¶ 3. On October 16, 2000, the trial court conducted a change of plea hearing. Prior to the plea taking, the State filed a certified copy of Fields' judgment of conviction from Milwaukee county indicating convictions of two misdemeanors and one felony for battery to a peace officer. Fields also filed a signed "Plea Questionnaire/Waiver of Rights" form. Although the plea questionnaire did not specify that the charge included a repeater enhancement, it identified the maximum penalty as being sixteen years' imprisonment or $10,000 or both. After a brief colloquy covering the rights he was giving up and the plea questionnaire he signed, the trial court accepted Fields' no contest plea. Fields was sentenced on October 19, 2000, to a term of sixteen years, with eleven years in confinement and five years of extended supervision.

¶ 4. Fields filed a postconviction motion challenging the validity of the repeater portion of his sentence. He claimed, as he does now, that the State failed to allege in either the complaint or the information, prior to the entry of any plea, the specific prior convictions that formed the basis of the repeater allegation. After a hearing on the matter, the trial court denied the motion, concluding that the State had substantially corn-plied with the statute and the case law, and that Fields had been adequately advised of the penalties to which he would be exposed in the event of conviction.

¶ 5. Wisconsin Stat. § 973.12(1) governs sentencing of a repeater and requires that the defendant admit or the State prove the prior conviction that serves as the basis for the repeater allegation. In this case, however, Fields does not challenge the proof of his prior convictions offered by the State on October 16, 2000. Instead, Fields argues that he lacked proper notice of the repeater charge because the information was incomplete and that therefore the portion of his sentence attributable to the repeater allegation must be vacated. Specifically, Fields claims the information was defective because it contained only a general repeater allegation directed at two defendants and it failed to identify the specific prior conviction that formed the basis of the repeater. Whether Fields' sentence as a repeater is proper involves the application of § 973.12(1) to undisputed facts. This is a question of law which we review de novo. State v. Campbell, 201 Wis. 2d 783, 788, 549 N.W.2d 501 (Ct. App. 1996).

¶ 6. We begin our discussion with a review of the pleading requirements in Wis. Stat. § 973.12(1). This section provides in relevant part:

Whenever a person charged with a crime will be a repeater ... under s. 939.62 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.62.. . .

Section 973.12(1).

¶ 7. The statute itself does not explicitly state how the prior conviction should be alleged in the charging document so as to provide proper notice. We find guidance, however, in State v. Gerard, 189 Wis. 2d 505, 525 N.W.2d 718 (1995). In that case, the supreme court addressed which charging document should be the focus of our inquiry, what information it should contain and when it must be provided. The court noted that the defendant pleads to the information, rather than the complaint, and therefore the information is the document that will ordinarily include the repeater allegation. Id. at 512 n.6. Furthermore, a proper charging document will "identify the repeater offense, the date of conviction for that offense, and the nature of the offense — whether for a felony or misdemeanor conviction. The totality of information provided in the information will allow a defendant to determine the length of the enhanced penalty to which he is exposed." Id. at 515-16 (footnote omitted). Finally, the timing of the repeater allegation is crucial. "Due process requires the defendant to be informed of his or her repeater status before pleading to the charges." Id. at 513 n.6.

¶ 8. For purposes of our review, we focus only on the information because as Gerard instructs, it is the information which must have alerted Fields to the extent of his punishment at the time he pled to the charges. In this case, we agree with Fields that the information filed on October 2 was woefully inadequate and failed to technically comply with the pleading requirements ofWis. Stat. § 973.12(1) as interpreted by the Gerard court. The information, by itself, failed to identify the date and nature of the offense that served as the basis of the repeater allegation. In our view, however, the defective information was cured by the State's submission of a certified copy of the prior convictions at the change of plea hearing. We view this proof of the convictions as a tacit amendment to the information which, taken together with the general allegation in the information, provided Fields with proper notice of all of the elements of the prior convictions, including the date and nature of the prior offenses and potential enhanced penalty he would face if convicted of the charged crime. As the following plea colloquy reveals, this notice was provided prior to the court's acceptance of Fields' no contest plea and therefore satisfies the requirements of the statute.

[Prosecutor:] Judge, for purpose of the court accepting the plea, I have filed with the court a certified conviction from the County of Milwaukee indicating that the defendant has been convicted as a felon on two separate occasions.
[The Court:] The charges being battery to a law enforcement officer?
[Prosecutor:] Correct.
[The Court:] That's the only one I see on here; then, two misdemeanors, is that right?
[Prosecutor:] Correct.
[The Court:] Well, the defendant is charged at this time with battery to a peace officer as a repeater and if convicted would be subject to a fine of not to exceed ten thousand dollars, imprisonment not to exceed 16 years, or both; do you understand that, Mr. Fields?
[Fields:] Yes, sir.
[The Court:] And the defendant's plea to the charge?
[Fields' attorney:] Judge, Mr. Fields will be entering/changing his plea to one of no contest to the information.
[The Court:] Is that right, Mr. Fields?
[Fields:] Yes, sir.
[The Court:] Do you understand, sir, by pleading no contest you waive your right to a jury trial and your right to confront and cross-examine your accusers and witnesses against you?
[Fields:] Yes, sir.
[The Court:] And do you understand that if you were to have a jury trial all 12 jurors would have to unanimously agree upon your guilt before you could be convicted?
[Fields:] Yes, sir.
[The Court:] Is this your signature on page two of the plea form that's been filed with the court?
[Fields:] Yes, sir.
[The Court:] Did you go over it with Mr. De Junco [Fields' attorney] before signing it?
[Fields:] Yes, sir, I did.
[The Court:] Did he explain it to you?
[Fields:] Yes, your Honor.
[The Court:] Did he explain to you that before you could be convicted the state would have to prove beyond a reasonable doubt that you did cause bodily harm to a law enforcement officer; secondly, that that law enforcement officer was acting in his official capacity, that you knew that the victim was a law enforcement officer, and that the victim was injured without his consent; do you believe the state would be able to prove those elements beyond a reasonable doubt?
[Fields:] Yes, your Honor.
[The Court:] The Court will find the defendant's plea of no contest is freely, voluntarily and intelligently entered. Mr. De Junco, do you stipulate to the underlying facts as set forth in the original criminal complaint in support of the plea?
[Fields' attorney:] Yes, we do, your Honor.
[The Court:] The court finds that a factual basis for the plea exists. I'll find the defendant guilty. ...

¶ 9. Fields asserts that if the proof of the prior convictions constitutes an amendment to the defective information, the amendment was offered too late in the proceedings. Relying on State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991), and a case consolidated with it, State v. Robles, Fields maintains the State was required to allege the applicable prior convictions in the charging documents by the time Fields entered his not guilty plea at the arraignment. In other words, Fields interprets Martin/Robles to prohibit an amendment to the repeater allegation after any plea is accepted. As we discuss below, this is not the rule of law we glean from Martin/Robles.

¶ 10. In Martin/Robles, neither the complaint nor the information alleged the defendants' repeater status. Id. at 889-90. The defendants pled not guilty to the underlying charges at their arraignments without any notice of their repeater status and the potential enhanced penalty. Id. In both cases, after arraignment the State formally amended the information to include the repeater charges. Id. at 890-91. Apparently, neither defendant had an opportunity to enter a plea to the amended information. After trial, the defendants were convicted and sentenced as repeat offenders. Id. The appellate court vacated the portion of the sentences attributable to the penalty enhancement and the supreme court affirmed. Id. The court reasoned that due process demands that the defendant know the extent of his or her punishment at the time of pleading:

The allegation of recidivism is put in the information in order to meet the due-process requirements of a fair trial. When the defendant is asked to plead, he is entitled to know the extent of his punishment of the alleged crime, which he cannot know if he is not then informed that his prior convictions may be used to enhance the punishment.

Id. at 900-01 (citation omitted). The teaching of Martin/Robles is that the law will not permit a repeater allegation if the defendant has not had notice of his or her status as a repeater and an opportunity to respond to the charging document.

¶ 11. Two significant factors distinguish the case before us from Martin/Robles. First, unlike Martin and Robles, Fields had notice at his arraignment of his status as a repeater and the potential enhanced penalty he faced if convicted. Second, although the information to which Fields pled was inadequate, he had another opportunity to plead after submission of the appropriate information regarding the prior convictions. At the change of plea hearing, he had an opportunity to respond to the habitual criminality charge with full knowledge of the specific prior convictions underlying the allegation. He responded by changing his plea to no contest. Therefore, we see a marked difference between the information on hand when Martin and Robles entered what came to be their final pleas and the information Fields had when he entered his second plea. While Martin and Robles never had the opportunity in a plea hearing to respond to the repeater allegation in the amended information, Fields had that opportunity.

¶ 12. Our understanding of the law is corroborated by Gerard. In Gerard, the charging documents incorrectly stated the enhanced penalty for one of two counts. Gerard, 189 Wis. 2d at 509-10. The court concluded that the mistake in the penalty enhancer did not affect the sufficiency of the notice, and therefore, the post-arraignment correction of the mistake did not violate the statute. Id. at 509, 512. In reaching this conclusion, the court noted that its concern in Martin/Robles — that the defendant have knowledge of the potential punishment before pleading to the charges — was satisfied because the information, at the time of arraignment, correctly alleged Gerard's repeater status. Gerard, 189 Wis. 2d at 514. We have since interpreted Gerard to permit an amendment to an inaccurate information as long as the amendment does not affect the sufficiency of the notice to the defendant regarding his or her repeater status. See Campbell, 201 Wis. 2d at 791.

¶ 13. With this understanding of Martin/Robles and Gerard, we apply the law to the facts of this case. Fields asserts that at his arraignment he did not have proper notice of the nature of the charge against him and the potential consequences of his plea. We have already noted the deficiencies in the information; nonetheless, it sufficed to inform him that as a habitual criminal, his prison sentence could be increased "by not more than six years, for a total of sixteen years." This sentence could only be imposed if he were a repeater, as the information alleged. In addition, at the arraignment, the trial court informed Fields of the repeater allegation and potential enhanced penalty prior to the entry of the not guilty plea. As we concluded previously, the subsequent submission of the certified copy of his prior convictions then served as a tacit "amendment" to the information, filling the gap of missing information by providing details of the date and nature of the prior offenses.

¶ 14. We are further convinced that this amendment, as we refer to it, did not prejudice Fields. See Gerard, 189 Wis. 2d at 517 n.9 (prejudice has always been a consideration with regard to amending a charging document). Fields does not assert that his plea would have been different if more specific information had been contained in the information. To the contrary, at both the arraignment and change of plea hearing, Fields acknowledged his understanding during the plea colloquies that acceptance of his plea would expose him to a potential sixteen-year prison sentence.

¶ 15. To summarize, the record in this case makes clear that Fields was fully aware of the repeater peril present in this particular case, both at his arraignment when he pled not guilty and at the later entry of his no contest plea. Although the pleading itself failed to contain sufficient detail to provide Fields with proper notice in compliance with the statute and Gerard, the certified copy of his prior convictions served to amend and cure this defect. The change of plea hearing then gave him the opportunity to respond to the repeater allegation with full knowledge of all the underlying facts. On this basis, we affirm the judgment and order of the trial court.

¶ 16. We make this determination reluctantly; it would have been preferable for the State, either in the complaint or the information, to specify the prior convictions used as the basis for Fields' repeater status, including the charges, the dates and the jurisdictions. Utilizing procedures the statute provides, the State could have requested additional time to investigate and identify the prior convictions and then formally amend the information prior to the plea. See Wis. Stat. § 973.12(1). Failure to follow the statutory prerequisites results in almost automatic appeal and precipitates the inefficient administration of justice. We urge the State to draft pleadings with more care in order to preserve precious judicial resources.

By the Court. — Judgment and order affirmed.

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

       In addition to Fields, the information named as defendants Wilfredo Vasquez, Jr., Bernardo Hernandez and Andrew Acosta.

       The State asserts that the "totality of the record" test set forth in State v. Liebnitz, 231 Wis. 2d 272, 285-87, 603 N.W.2d 208 (1999), should control the outcome of this case. We disagree. Liebnitz addressed the issue of whether the defendant's plea under the circumstances of that case constituted an admission of the repeater allegations. Id. at 288. Unlike the case before us, the defendant in Liebnitz did not challenge the accuracy or specificity of the repeater provisions in the pleading. Id. at 276.

       The State points out that Fields never denied that he was a repeater and never raised any objection to the repeater allegation until he filed his postconviction motion. The State claims Fields thereby waived his right to challenge the repeater portion of his sentence. No court has yet concluded that a defendant waives the right to challenge the State's failure to comply with Wis. Stat. § 973.12(1) by failing to object at the sentencing hearing. See State v. Goldstein, 182 Wis. 2d 251, 256 n.2, 513 N.W.2d 631 (Ct. App. 1994). We decline to do so in this case. We also decline to invoke our discretionary authority to apply judicial estoppel in denying Fields' claim.

       The maximum prison sentence for a Class D felony without the repeater enhancement is ten years. Wis. Stat. § 939.50(3) (d).


author: FINE, J. SCHUDSON, J.

text:
    Estate of Robert Wagoner, Amy Simchak, Erin Sweet, and Lisa Stoflet, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent, Milwaukee County and Compcare Health Services Insurance, Defendants.
    Court of Appeals

      No. 01-0623.

      Submitted on briefs October 2, 2001.

    Decided November 20, 2001.

    2001 WI App 292
    (Also reported in 638 N.W.2d 382.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas K. Houck oí Michael F. Hupy & Associates, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Patricia A. Fricker, assistant city attorney, Milwaukee.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review filed.

   FINE, J.

¶ 1. The Estate of Robert Wagoner appeals from the trial court's order granting summary judgment to the City of Milwaukee. The Estate sued the City, claiming that the City was negligent for failing to cut weeds within the guardrail of a median strip, which obstructed the visibility of motorists using the highway. The trial court dismissed the case, concluding that the City was immune from common law liability under Walker v. Bignell, 100 Wis. 2d 256, 266-267, 301 N.W.2d 447, 453-454 (1981). We affirm.

¶ 2. Robert Wagoner's Estate brought a negligence claim against the City after Wagoner lost his life in a car and motorcycle accident. Wagoner was riding his motorcycle east on Good Hope Road near the intersection of Highway 41 and Highway 45 when Daniel Bucket, who was traveling west on Good Hope Road, attempted to turn left onto Highway 41/45, hitting and killing Wagoner. The complaint alleged that the overgrown vegetation within the guardrail of the median between the eastbound and westbound lanes on Good Hope Road obscured both Wagoner's and Buckel's vision. After examining photographs of the scene, the trial court determined that the vegetation in the median was between three to four feet high at the time of the accident.

¶ 3. As material here, Wagoner's Estate sued the City, alleging that the City was negligent for failing to properly maintain the median area. Specifically, the Estate argued that the City was negligent for mowing all of the vegetation in the median except for the vegetation within the guardrail. The City moved for summary judgment claiming that it was immune from liability under Walker v. Bignell, 100 Wis. 2d 256, 266-267, 301 N.W.2d 447, 453-454 (1981), and Estridge v. City of Eau Claire, 166 Wis. 2d 684, 687, 480 N.W.2d 513, 514 (Ct. App. 1991), both of which exonerated municipalities from common law liability for the negligent failure to cut roadside vegetation. Wagoner's Estate argued that its case was factually distinguishable from Walker and Estridge because the City did not fail to cut the vegetation in the median; rather, it was negligent when it cut the vegetation on the median strip but did not cut the portion of the vegetation within the guardrail.

¶ 4. The trial court agreed with the City, , concluding that while the City appeared to concede that it was negligent, it was immune from liability under Walker. The trial court gave several policy reasons for its decision to grant immunity, including: (1) if the City was a party to every intersection accident, it would experience a large financial drain, and (2) if municipalities faced liability for negligently mowing, as the plaintiffs suggested, municipalities would choose not to mow at all to avoid liability.

¶ 5. The question of whether liability should be imposed upon the City is a policy question. Estridge, 166 Wis. 2d at 686, 480 N.W.2d at 513-514. Whether a defendant should or should not be held liable for a certain act as a matter of policy is a question of law. Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2001 WI App 148, ¶ 13, 246 Wis. 2d 933, 632 N.W.2d 59. Our review of the trial court's grant of summary judgment is de novo, and we apply the same standards as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). First, we examine the pleadings to determine whether a proper claim for relief has been stated. Ibid. If the complaint states a claim and the answer joins the issue, our inquiry then turns to whether any genuine issues of material fact exist. Ibid. Wisconsin Stat. § 802.08(2) (1999-2000) sets forth the standard by which summary judgment motions are to be judged:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Wagoner's Estate contends that the City is not entitled to immunity because this case is distinguishable from Walker v. Bignell, 100 Wis. 2d 256, 301 N.W.2d 447 (1981).

¶ 6. In Walker, the plaintiffs were injured in a two-car accident at a rural intersection. Walker, 100 Wis. 2d at 258, 301 N.W.2d at 449. The plaintiffs sued the municipalities alleging that they were negligent because the areas adjacent to the intersection "were so overgrown with weeds that the view of the intersection by approaching drivers was obstructed." Id., 100 Wis. 2d at 258, 301 N.W.2d at 449-450. Walker decided, as a matter of public policy, that municipalities should not be liable "for injuries caused by uncut vegetation obscuring motorists' vision at highway intersections." Id., 100 Wis. 2d at 266-267, 301 N.W.2d at 454. Walker gave several reasons for its decision to grant immunity from common law liability: (1) exposure to liability would "place an unreasonable and unmanageable burden" on municipalities to keep "areas adjacent to every highway intersection clear of visual obstructions at whatever intervals are necessitated by the vicissitudes of Wisconsin's climate"; (2) permitting liability would create "the potential for significant financial liability owing to the unfortunate propensity of motorists to have intersection accidents"; and (3) "the height and density of vegetation would become a factor in nearly every intersection accident case [such that] municipalities would inevitably be drawn into considerably more litigation, with its attendant costs and demands." Id., 100 Wis. 2d at 266, 301 N.W.2d at 453.

¶ 7. Wagoner's Estate claims that the policies behind Walker do not apply to this case because in its view Walker "does not extend to situations where cities and counties have themselves decided to trim vegetation and assure visibility, but have done so negligently and poorly." Stated another way, it argues that this case is distinguishable because the City was not negligent due to a failure to act; rather, it voluntarily undertook the task of cutting the vegetation on the median strip, and thus, once it began mowing, it had a duty to do so with reasonable care. We disagree.

¶ 8. Under Walker, municipalities do not have a duty to cut roadside vegetation. Walker does not distinguish between municipalities that are negligent because they have not cut roadside vegetation at all and municipalities that cut roadside vegetation, but do so negligently. Rather, the immunity in Walker is all-inclusive because it precludes courts from even reaching the duty issue. See id., 100 Wis. 2d at 266-267, 301 N.W.2d at 453-454 ("Because we conclude there should be no common law liability imposed upon the defendant municipalities for injuries caused by uncut vegetation obscuring motorists' vision ... we need not address the issue raised by the plaintiffs whether the weed control program followed by the county. . . amounted to the assumption of a duty which [it] would have been bound to carry out in a non-negligent manner."). Significantly, Walker has been extended to protect municipalities from common law liability where they have taken affirmative steps to maintain their roadways, but have allegedly done so in a negligent manner. See Sanem v. Home Ins. Co., 119 Wis. 2d 530, 535, 541, 350 N.W.2d 89, 91, 94 (1984) (municipality is entitled to immunity where plaintiffs alleged it negligently deposited snow on the median strip of a highway obstructing their vision).

¶ 9. The Estate also argues that Wis. Stat. § 80.01(3) creates an exception to Walker by imposing a duty upon municipalities to cut roadside vegetation planted for beautification or erosion-prevention purposes. The Estate contends that § 80.01(3) has not prevented municipalities from undertaking such projects. Thus, it argues that the imposition of liability would not deter municipalities from trimming vegetation along their roadways. We disagree.

¶ 10. Although the legislature has, in § 80.01(3), mandated that the governmental authority encompassed by that provision "shall remove, cut or trim or consent to the removing, cutting or removal of any tree, shrub or vegetation in order to provide safety to users of the highway," it has not also created a private cause of action for damages caused by a failure to comply with that mandate. See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 658, 476 N.W.2d 593, 600-601 (Ct. App. 1991) ("For a rule or statute to form a basis for civil liability, expression of legislative intent is necessary that the section become a basis for such liability."). In view of Walker, we will not step in and create such liability, especially in light of the potential costs that Walker recognizes would cascade upon governmental authorities if they were dragged into every lawsuit where overgrown vegetation might possibly be a contributing factor to an accident. If the rule against governmental liability is to be abrogated, it must be done by the supreme court and not by us. We affirm the grant of summary judgment.

By the Court. — Order affirmed.

SCHUDSON, J.

¶ 11. (concurring). The majority acknowledges the Estate's "alluring" argument but explains that "we are bound" by Walker v. Bignell, 100 Wis. 2d 256, 301 N.W.2d 447 (1981). Majority at ¶ 10 n.3.1 agree. Here, however, I would hope to focus on the binding language of Walker, the context from which that language came, and the potential for further review of whether that language has come to encompass more than the supreme court truly intended.

¶ 12. As the majority has explained, in Walker, the supreme court was considering "areas adjacent to the intersection [that] 'were so overgrown with weeds that the view of the intersection by approaching drivers was obstructed.'" Majority at ¶ 6 (quoting Walker, 100 Wis. 2d at 258) (emphasis added). In doing so, however, the supreme court repeatedly referred to both "roadside" vegetation and "intersection" vegetation, see Walker, 100 Wis. 2d at 261, 262, 264, 265, 266, 267, apparently using the terms interchangeably, and drawing no distinction between: (1) vegetation adjacent to an intersection and vegetation within an intersection; or (2) vegetation a municipality had not trimmed at all and vegetation a municipality had trimmed negligently. Nevertheless, the supreme court concluded with language leaving this court no room to draw such distinctions: "there should be no common law liability imposed upon the defendant municipalities for injuries caused by uncut vegetation obscuring motorists' vision at highway intersections." Walker, 100 Wis. 2d at 266-67 (emphasis added).

¶ 13. The instant case may offer the supreme court the opportunity to consider whether Walker's holding is as all-encompassing as its terms seem to suggest. Here, as the circuit court noted, "The City agrees .. . that it was responsible for maintaining the median" and, at least at this stage, "is truly. .. not contesting negligence." It is undisputed that the City had cut the vegetation in the median strip except for that area within the guardrail. The parties and the circuit court surmised that the City workers simply had not used a weed-whacker or hoisted a lawnmower over the guardrail to complete the cutting of the vegetation.

¶ 14. Thus, the City's negligence may have created an extremely dangerous condition — a condition that inevitably would lead to a tragic accident — and a condition that, at least from everyday driving experience, seems significantly distinguishable from the myriad conditions involving vegetation adjacent to roadsides. It seems unlikely that potential liability for such negligence would lead municipalities to abandon their proper responsibility for maintaining their highway medians. Therefore, quite possibly, the supreme court could clarify Walker, distinguish vegetation adjacent to a highway from vegetation within a median, and carefully carve an exception that would enhance highway safety without undermining the sound public policies articulated in Walker.

¶ 15. Accordingly, I respectfully concur.

       The Estate filed a survivorship claim against the City. Wagoner's daughters, Amy Simchak, Erin Sweet, and Lisa Stoflet, also brought individual claims against the City. As the plaintiffs' claims are essentially the same, we will refer to the plaintiffs as the "Estate."

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

       The Estate also relies on Kantz v. Elkhart County Highway Department, 701 N.E.2d 608 (Ind. Ct. App. 1998), where the Indiana Court of Appeals concluded that a county was liable for its negligence in cutting down a tree but leaving the stump in a right-of-way because the county had knowledge that the stump would create an unsafe condition. Id. at 615. The Indiana Court of Appeals refused to create a "blanket rule" that would "imposed a duty upon landowners to remove every stump." Id. at 614. It concluded that public policy supported the imposition of liability because the county had actual knowledge of the dangerous condition. Id. The Estate argues that this case is similar because the City was aware of the vegetation and took steps to remove the vegetation, negligently leaving vegetation within the guardrail of the median. While this argument is alluring, we are bound by Walker v. Bignell, 100 Wis. 2d 256, 266-267, 301 N.W.2d 447, 453-454 (1981), which grants municipalities blanket immunity for the negligent failure to mow roadside vegetation. See State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159, 163 (1984) (the court of appeals is bound by prior decisions of the supreme court).

       In Sanem v. Home Insurance Co., 119 Wis. 2d 530, 535, 350 N.W.2d 89 (1984), the supreme court did extend the rationale of Walker v. Bignell, 100 Wis. 2d 256, 301 N.W.2d 447 (1981), to a case involving an accident allegedly resulting from an obstruction within a highway median. The obstruction, however, was the result of allegedly negligent snow removal, and the supreme court specifically grounded its holding in "the physical properties of snow and the nature of snow plowing," and the "emergent situation" created by heavy snowfall. Sanem, 119 Wis. 2d at 540-41. Here, obviously, the circumstances are quite different, and motorists' reasonable expectations of intersection visibility and their resulting vigilance certainly may vary according to whether they are driving in snowy or snowless conditions.


author: ROGGENSACK, J.

text:
    Barbara A. Schultz, individually and as Special Administrator for the Estate of Lindsey Schultz, and Roger Schultz, individually, Mitchell Schultz, individually, Russell Schultz, individually, and 3M Medical Plan, Plaintiffs-Respondents, v. Roger D. Natwick, M.D., ORCC, Inc., f/k/a Red Cedar Clinic, S.C., d/b/a Red Cedar Clinic, Red Cedar Clinic-Mayo Health System, Ltd., and Physicians Insurance Company of Wisconsin, Inc., Defendants-Appellants, Wisconsin Patients Compensation Fund, Defendant-Co-Appellant.
    Court of Appeals

      No. 00-0361.

      Submitted on briefs February 12, 2001.

    Decided November 21, 2001.

    2001 WI App 281
    (Also reported in 638 N.W.2d 319.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Michael B. Van Sicklen and Michael S. Heffernan of Foley & Lardner of Madison.

      On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Mark E. Larson of Gutglass, Erickson & Bonville, S.C. of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Howard R. Orenstein and Terry L. Wade of Robins, Kaplan, Miller & Ciresi L.L.R of Minneapolis, Minnesota.
    Brief of amicus curiae was filed by James E. Doyle, attorney general and John S. Greene, assistant attorney general on behalf of the State of Wisconsin.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review granted 2-19-02.

   ROGGENSACK, J.

¶ 1. In May 1998, Barbara and Roger Schultz filed a medical malpractice action against Dr. Roger Natwick, his employer and his insurers (Natwick) for the wrongful death of their daughter in December 1995. Natwick seeks review of the circuit court's ruling that 1997 Wis. Act 89, which increased caps on damages for loss of society and companionship in wrongful death actions, applies to the Schultzes' claims. We conclude that the retroactive application of increased damages for loss of society and companionship in wrongful death actions violates a tort defendant's due process rights. Accordingly, Natwick's liability for loss of society and companionship is capped at $150,000 under Wis. Stat. § 895.04(4) (1995-96), which was the statute in effect on the date the Schultzes' cause of action accrued.

BACKGROUND

¶ 2. Thirteen-year-old Lindsey Schultz died on December 1, 1995 from the complications of an appendectomy performed by Dr. Roger Natwick. Lindsey's parents and siblings filed a wrongful death action on May 11, 1998, naming Natwick, his employer and his insurers as defendants. Natwick's primary insurer is Physicians Insurance Company of Wisconsin. The Wisconsin Patients Compensation Fund was joined as a defendant pursuant to Wis. Stat. § 655.27(5) and is liable to the extent that medical malpractice liability exceeds the policy limits of the primary insurer.

¶ 3. The parties reached a stipulation in which they agreed that (1) Natwick would not contest liability, and (2) if the case were tried to a jury, the Schultz family members would be awarded damages for loss of society and companionship in an amount no less than $500,000. Natwick, however, reserved the right to appeal the circuit court's ruling that damages for loss of society and companionship were capped at $500,000, rather than at $150,000.

¶ 4. The parties' dispute over the applicable cap on damages for loss of society and companionship can be traced to a change in the law that occurred between the date of Lindsey's death and the date the Schultzes filed their suit. On December 1, 1995, the date Lindsey died, the Wisconsin statutes provided that parents of the deceased in a wrongful death action could recover a maximum of $150,000 for loss of society and companionship. See Wis. Stat. § 895.04(4). However, on April 13, 1998, the legislature enacted 1997 Wis. Act 89, which amended § 895.04(4) to increase the cap on such damages to $350,000 for the death of an adult and $500,000 for the death of a minor.

¶ 5. The Act provided that the increased caps would first apply to "actions commenced on the effective date of this subsection." 1997 Wis. Act 89, § 4. The Act became effective on April 28, 1998, and the Schultzes filed their suit on May 11. Thus, according to the express terms of the Act, the cap on damages for loss of society and companionship in this case would be $500,000.

¶ 6. Natwick argues that applying the increased caps to a cause of action that accrued prior to the effective date of the Act is unconstitutional under the due process clauses of the Wisconsin and United States Constitutions. Although the circuit court rejected this argument, the Wisconsin Supreme Court subsequently invalidated retroactive application of the increased caps in a case that, like the Schultzes' action, involved a pre-Act injury and a complaint filed after April 28, 1998. See Neiman v. American Nat'l Prop. & Cas. Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160.

¶ 7. The Schultzes contend that Neiman involved only an "as applied" challenge to the statute and that facts unique to this case command a different outcome. Natwick contends that Neiman was a facial challenge to the section of 1997 Wis. Act 89 that applied the increase in wrongful death damages to events occurring before the effective date of the Act. We agree with Natwick, and therefore, we reverse the judgment of the circuit court.

DISCUSSION

Standard of Review.

¶ 8. The constitutionality of retroactive legislation presents a question of law, which we review de novo. Neiman, 2000 WI 83 at ¶ 8.

Retroactive Increase.

¶ 9. It is undisputed in this case both that the Schultzes' cause of action accrued on December 1,1995 and that the Schultzes commenced this action after the April 28, 1998 effective date of 1997 Wis. Act 89. In addition, there is no question that the legislature intended the increase in wrongful death damages to apply retroactively in these circumstances. See Neiman, 2000 WI 83 at ¶ 11. Therefore, the sole issue presented is whether retroactive application of the increased damages violates Natwick's constitutional right to due process.

¶ 10. The due process test that applies here required the supreme court to determine whether the legislature had a rational basis for providing for retroactive application of an increase in wrongful death damages. Id. at ¶ 9. The analysis involves "weighing the public interest served by retroactively applying the statute against the private interest that retroactive application of the statute would affect." Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶ 27, 244 Wis. 2d 720, 628 N.W.2d 842 (citing Martin v. Richards, 192 Wis. 2d 156, 201, 531 N.W.2d 70, 88-89 (1995)). "[T]he public purpose supporting retroactivity . . . must... be substantial, valid and intended to remedy a general economic or social issue." Neiman, 2000 WI 83 at ¶ 23.

¶ 11. Natwick's primary argument is that we need look no further than Neiman to resolve this case because the supreme court has already conducted the required balancing of private and public interests involved in the legislature's attempt to retroactively increase wrongful death damages. The Schultzes contend that Neiman was an "as applied" constitutional challenge and therefore, we must balance the particular private interests of Natwick and his insurers in this case with the public interests served by retroactivity. As explained below, we conclude that the supreme court's decision in Neiman is based on a facial challenge to the section of 1997 Wis. Act 89 that applied the increase in wrongful death damages to events occurring before the effective date of the Act.

¶ 12. The supreme court's decision in Neiman expressly set forth and balanced the public interest served by retroactive application of 1997 Wis. Act 89 and the private interests affected by it. Chief among the private interests affected by retroactivity is the substantive right of defendants in wrongful death actions to have their liability fixed on the date of injury. See Neiman, 2000 WI 83 at ¶ 20. This substantive right flows from the reliance of the defendants in such cases on the liability limits set forth by statute. Id. at ¶¶ 13, 25. Applying the increased damages caps enacted in 1998 affects a tort defendant's substantive right to have liability fixed on the date of injury because it multiplies the tortfeasor's maximum liability for loss of society and companionship. Where the deceased is a minor (as in Neiman and in this case), the increased caps would more than triple a tortfeasor's total exposure to such damages.

¶ 13. After identifying the private interests at stake, the court in Neiman examined the public purpose served by retroactive application of the statute. The asserted public interests included full compensation for the loss of society and companionship, the need for tort victims to have access to adequate legal representation and deterrence of negligent conduct. The court concluded that "[a]ll of the public interests identified would arguably support prospective application of an increase in damages for loss of society and companionship; however, these reasons provide weak support for retroactive increases in damages." Id. at ¶ 30. Particularly addressing the claim that increased damages were necessary to provide full compensation to tort victims, the court stated:

The remedy fixed by statute before the amendment was enacted was the legislature's best judgment at the time as to what maximum amount of damages fully compensates for loss of society and companionship. As a cause of action created by statute, and expressing the legislature's judgment as to what remedy should be available for loss of society and companionship, the terms of the statute at the time of the accident define full compensation.

Id. at ¶ 26 (emphasis added).

¶ 14. Having identified the relevant interests on each side of the balance, the court then concluded that the public interests served by retroactive application of the increased caps on damages "do not support abrogation of the settled expectations that accrued at the time of the accident." Id. at ¶ 31. Accordingly, the court held that the defendant-insurer established beyond a reasonable doubt that retroactive application of increased damages for loss of society and companionship violates due process. Id.

¶ 15. The parties here agree that Neiman does not expressly state whether the court was addressing a "facial" or an "as applied" challenge to retroactive application of the increased damages cap. However, for several reasons, we conclude that Neiman involved a facial challenge to the statute.

¶ 16. First, we conclude that Neiman facially invalidated the Act's retroactive increase in damages because to hold otherwise would suggest that tortfea-sors' maximum liability could be made to depend on the unique circumstances surrounding their insurance contracts, or that insured tortfeasors, uninsured tortfea-sors and underinsured tortfeasors could incur different maximum liabilities for the same negligent act. Wisconsin Stat. § 895.04(4), however, has nothing to do with insurance; it defines the extent of a wrongful death plaintiffs right to recover damages for loss of society and companionship and, as the opposite side of the same coin, a tortfeasor's liability for such damages. Under well-established law, both the right to recover and the extent of liability accrue on the date of injury. And, as the supreme court recognized, this rule of law gives rise to a substantive right that is affected by a retroactive increase in potential liability. Neiman, 2000 WI 83 at ¶ 13. Neiman does not leave the door open for lower courts to re-balance affected interests on a case-by-case basis to assess the particulars of a tortfeasor's insurance policy.

¶ 17. Second, although the Schultzes reasonably argue that the identification and balancing of "private interests" implies a fact-specific analysis and a case-by-case inquiry into actual harm, we conclude that the supreme court's analysis in Neiman was a broader test of the statute itself. As the supreme court has stated, the balancing test applied in Martin, Neiman and Matthies is, at heart, a rational basis test that is used to assess the constitutionality of retroactive legislation. Matthies, 2001 WI 82 at ¶ 27; Neiman, 2000 WI 83 at ¶ 9. Thus, while the balancing of interests performed in Neiman is a wrinkle on the rational basis test that is unique to cases involving retroactive legislation, the core due process inquiry remains unchanged. That is, the Neiman balancing test is a framework used to determine whether the legislature has acted in an arbitrary and irrational way. See Thorp v. Town of Lebanon, 2000 WI 60, ¶ 45, 235 Wis. 2d 610, 612 N.W.2d 59.

¶ 18. The Neiman court's analysis of the relevant interests was not fact-specific and did not inquire into the actual harm suffered by the defendant-insurer. Instead, the primary private interest identified by the court was an interest that is universal to all tort defendants: the substantive right, in cases where damages are specified by statute, to have the maximum amount of liability fixed as of the date of injury. The supreme court then expressly determined that the public interests served by a retroactive increase in wrongful death damages were "weak" and that they "do not support abrogation of the settled expectations that accrued at the time of the accident." Neiman, 2000 WI 83 at ¶ 31. Given the broad interests identified and balanced in Neiman to determine whether the legislation had a rational basis, we see no room for further case-by-case balancing.

¶ 19. Third, Neiman reached the supreme court on a party's motion to bypass the court of appeals. See Wis. Stat. § 808.05 (1999-2000). We doubt that the supreme court accepted the case in that posture solely to determine the rights of litigants who had one particular type of insurance coverage. Instead, we conclude that the court's references to "other defendants in tort actions," Neiman, 2000 WI 83 at ¶ 21, and "other insurers and insureds," id. at ¶ 22, and the court's balancing of broadly applicable private interests demonstrate that the court viewed the case as a facial challenge to the statute.

CONCLUSION

¶ 20. We conclude that the retroactive application of increased damages for loss of society and companionship in wrongful death actions violates a tort defendant's due process rights. Therefore, Natwick's liability for loss of society and companionship is capped at $150,000 under Wis. Stat. § 895.04(4) (1995-96), which was the statute in effect on the date the Schultzes' cause of action accrued. Accordingly, we reverse the judgment and order of the circuit court.

By the Court. — Judgment and order reversed.

       All references to the Wisconsin Statutes are to the 1995-96 version, unless otherwise noted.

       Lindsey's mother was a primary advocate of the legislation and worked with legislators to gain support for the bill. In addition to increasing the damages caps, 1997 Wis. Act 89 added minor siblings of the deceased to the class of persons who are permitted to bring a wrongful death claim and recover damages for loss of society and companionship. The issue of whether Lindsey's siblings are proper parties in this action is not before the court.

       The Wisconsin Supreme Court has held that the due process clause of the Wisconsin Constitution is substantially equivalent to its counterpart in the federal constitution. Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181, 184 (1995).

       In setting forth the balancing test applied to retroactive legislation, the supreme court stated that retroactive legislation "is viewed with some degree of suspicion." Martin v. Richards, 192 Wis. 2d 156, 201, 531 N.W.2d 70, 88 (1995). Notwithstanding the suspicious eye cast upon such statutes, the unconstitutionality of retroactive legislation must still be proven beyond a reasonable doubt. Neiman v. American Nat'l Prop. & Cas. Co., 2000 WI 83, ¶¶ 16, 31, 236 Wis. 2d 411, 613 N.W.2d 160.

        Neiman involved a first-party claim against the plaintiffs' underinsured motorist coverage. Neiman, 2000 WI 83 at ¶ 5. The tortfeasor and the tortfeasor's liability insurer were not before the court. Id. at ¶¶ 4-7. As a result, the Neiman court often refers to the private interests of the plaintiffs' insurer. In this case, the tortfeasor is a party to the action. And, because any insurer's liability for damages for loss of society and companionship is inseparable from the tortfeasor's liability, we focus primarily on the private interests of the alleged tortfeasor, here Roger Natwick. We further note that Wis. Stat. § 895.04(4) determines the extent of the tortfeasor's liability and does not differentiate between insured and uninsured tortfeasors.

       It is certainly true that changing the rules governing a tortfeasor's liability will affect private interests that are based on the fact and extent of that liability. But, these interests derive from the fact of liability, which is independent of a tortfeasor's status as an insured. We read Neiman to invalidate a retroactive increase in the tortfeasor's liability, rather than invalidating the effect of increased tortfeasor liability on the contractual liability of the plaintiffs1 insurance carrier.

       Compare the Neiman rational basis test with, e.g., Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶ 57, 237 Wis. 2d 99, 613 N.W.2d 849 (holding that courts must sustain a statute unless we conclude that "it is 'patently arbitrary' and bears no rational relationship to a legitimate government interest") and Cornell Univ. v. Rusk County, 166 Wis. 2d 811, 825-26, 481 N.W.2d 485, 491 (Ct. App. 1992) (holding that the test for substantive due process is "whether the statutes have a reasonable and rational relationship to their purpose, and whether the purpose is a proper one").