author: DAVID T. PROSSER, J. SHIRLEY S. ABRAHAMSON, C.J.

text:
    Lamar Central Outdoor, Inc., d/b/a Lamar Advertising of Milwaukee, Plaintiff-Appellant, v. Board of Zoning Appeals of the City of Milwaukee, Defendant-Respondent-Petitioner.
    Supreme Court

      No. 2001AP3105.

      Oral argument December 6, 2004.

      Decided July 12, 2005.

    2005 WI 117
    (Also reported in 700 N.W.2d 87.)

      For the defendant-respondent-petitioner there were briefs by Grant F. Langley, Stuart S. Mukamal, Milwaukee, and oral argument by Stuart S. Mukamal.

      For the plaintiff-appellant there was a brief by Michael A.I. Whitcomb and Michael A.I. Whitcomb S.C., Milwaukee, and oral argument by Michael A.I. Whit-comb.

    An amicus curiae brief was filed by Catherine A. La Fleur and Hailing & Cayo, S.C., Milwaukee, on behalf of the Outdoor Advertising Association of Wisconsin.
    An amicus curiae brief was filed by Claire Silver-man, Madison, on behalf of the League of Wisconsin Municipalities.
   DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals, Lamar Central Outdoor, Inc. v. Board of Zoning Appeals, No. 2001AP3105, unpublished order (Wis. Ct. App. June 17, 2003). In a summary disposition, the court of appeals held that the Board of Zoning Appeals of the City of Milwaukee (the Board) failed to reasonably exercise its discretion when it denied Lamar Central Outdoor, Inc.'s (Lamar's) application for a dimensional area variance to raise the height of a billboard. The Board sought review in this court, and we now affirm because the Board did not proceed on the correct theory of law and because it failed to adequately express the reasoning on which it based its decision.

¶ 2. The Board considered Lamar's application on March 22, 2001. Since then, this court has issued three major decisions relating to the law of zoning variances. In light of the revised standards we announced in those cases, and through no fault of its own, the Board did not proceed on the correct theory of law.

¶ 3. We also conclude that the record does not show that the Board reasonably exercised its discretion. We are sympathetic to the Board's concern, echoed in the amicus brief of the League of Wisconsin Municipalities, that many board members are not lawyers and cannot be expected to produce a finely tuned piece of legal reasoning in each case. Nevertheless, this Board like other boards must provide enough reasoning to allow a court to meaningfully review its decision. This reasoning need not be embodied in a written decision as long as it is reflected in a transcript of the proceedings.

¶ 4. Therefore, we remand the cause to the circuit court for entry of an order directing the Board to reconsider and, if necessary, rehear and decide this matter in conformance with the new standards governing area variances. On remand, the Board must apply the appropriate legal standards and adequately express the reasons for its decision on the record.

I. FACTS

¶ 5. Lamar leases property adjacent to Interstate Highway 43 (1-43) in Milwaukee for the purpose of maintaining an "outdoor advertising structure." The structure is currently 34 feet high and is intended to be visible to northbound and southbound traffic on 1-43. At some point in the past, the Wisconsin Department of Transportation (WDOT) planted trees between the structure and 1-43 to serve as a noise barrier. The trees have since grown tall enough to partially obstruct the structure as viewed from 1-43.

¶ 6. At first, Lamar attempted to resolve the problem by asking WDOT to trim the trees. Unable to convince the WDOT to act, Lamar elected to try to raise the structure above the treetops. Lamar calculated that to be visible above the trees, the height of the structure had to increase 20 feet, to a total of 54 feet high. As the Milwaukee Code of Ordinances limits the maximum height of such structures to 40 feet, Lamar needed an area variance in order to lawfully increase the structure's height beyond the maximum height permitted by the zoning code. Lamar therefore requested an area variance from the Department of City Development (DCD). DCD denied that request. On February 7, 2001, Lamar appealed DCD's denial by filing an application with the Board requesting a dimensional variance to increase the height of the structure to 54 feet.

¶ 7. The Board's hearing on Lamar's application took place on March 22,2001. At the hearing, the Board gave representatives from several City of Milwaukee (City) departments the opportunity to comment on Lamar's application. The DCD had the first opportunity to comment, and its representative stated:

[W]e do oppose the variance request to raise this above the 40 foot height limit. We do not see that spirit and intent have been made. It just adds, you know, the ordinance is designed to keep the signs at a — a height. We do not see any exceptional circumstances here that merit that.

¶ 8. The Department of Neighborhood Services and Department of Public Works also had the opportunity to comment, but did not. The Secretary of the Board noted that the local alderman had no opposition to the application.

¶ 9. Lamar's representatives attempted to convince the Board to grant the variance. First, they presented the Board with several photographs of the property, showing the structure both before and after it became obscured by the trees. Next, Lamar presented the Board with several maps of the area surrounding the sign. One of the maps showed nearby locations at which the Board had approved variances for signs up to 100 feet high.

¶ 10. After Lamar's presentation, the Board discussed the application. As the Board's discussion is critical to our holding, we reproduce substantial portions of its debate:

BOARD MEMBER WINKLER: My comment to the board is that I think this is a perfect case that illustrates a hardship. This has been a convincing presentation to me. I think the original intent or the idea of... a hardship was to relieve a landowner from ... the diminished use of the property because of the configuration of the property. Now, here we have a little variance on that. It's ... the location of the property that's become isolated. It's not the shape of the property itself, although I think the way in which to read ... the variance requirement... of a hardship as it currently applies to this property. We are faced with a very strong case of a hardship. That would he my comment.
CHAIRMAN ZETLEY: Further comments, questions?
BOARD MEMBER SZYMANSKI: I guess I'm not really in agreement with you on that one, Scotty. The applicant is citing some existing signage that we should use as a precedent to allow this advertising to be increased in height[ ]. Existing signage, I would hope, would further be diminished. Again, I'm not a sign aficionado. I would agree with... Mr. Richardson's comments that the spirit and intent has not been ... met. And I think the hardship also has not been met, because it is intended to wind up generating some additional revenue for this facility... I'm ... not of the — on the same side of the coin as you are, Scotty.
BOARD MEMBER WINKLER: I just think with the nature of the signs.... Signs always have two purposes. One to generate revenue, and one to make itself known, make itself visible. I don’t know what else you can do with a sign. And so if you can't go to surrounding signs as examples and then, also, illustrate as they have historically, how the property has become isolated and tree covered through no fault of their own. It's not self-imposed. And economics are always going to be ... an element of the presentation for a hardship in sign cases.
CHAIRMAN ZETLEY: But then, if that's the case, then it can't be met according to the standard.
BOARD MEMBER WINKLER: Well, I—
CHAIRMAN ZETLEY: You're arguing that, and that's — If they can't have revenue on the sign, that's a revenue issue. That's not — That doesn't meet the height — hardship criteria. Specifically, in the ... criteria it says it can't be based solely on economic criteria.
BOARD MEMBER WINKLER: Well, then it's not. Then in... my opinion it is not based solely on economic criteria. It's based upon visibility criteria. And the visibility because of the isolation of the property and the way the highways have all been set up to criss-cross and — and basically hem this place in, that, together with the — the DOT construction or the planting of trees convinces me we've got a hardship.
BOARD MEMBER WINKLER: I'm voting in favor. I'm going to make a motion having found that all the criteria have been met for a variance and special use, based upon a technical review conducted by the departments, the testimony received today by the board, this exhibit, which I think will — I would offer to be Exhibit 1, marked and received, that was given to us by the applicant, and the testimony received today by the board, I move to grant this variance to run with the land.

¶ 11. The Board then voted on the application. The controlling statute requires a supermajority vote to grant such variances, so that four of the five Board members had to vote "yes" in order to grant the variance. One Board member (Szymanski) voted no; three voted yes. Chairman Zetley waited until the others had voted, then spoke:

I will vote against the variance for the increased height restriction. I believe that the criteria for hardship has not been met. I believe the exceptional circumstances have not been met. I believe that this is an economic issue. I agree with Henry, and I believe that the — there [are] other purposes for this land. It hasn't been shown that there isn't another purpose for this land. I also believe that there is — It hasn't been shown, preservation and property rights, and third, it's — it's back to the same argument, but it's a third objection by the Chair in that just making the signs bigger and bigger isn't something that this Chair is in favor of, but that's just my third position on it. It's based that the criteria haven’t been met.

¶ 12. Chairman Zetley's "no" vote denied Lamar the supermajority it needed, so that the Board denied Lamar's appeal for the area variance. Five days later, the Board issued its written decision, in which the Board concluded that Lamar's application was "not consistent with" the Milwaukee Code of Ordinances. The Board then recited the provisions of the ordinance. Accordingly, "[o]n the basis of the Findings, Conclusions, and the record herein," the Board denied the variance.

¶ 13. Lamar exercised its statutory right to cer-tiorari review in the circuit court. On September 19, 2001, the court affirmed the Board's decision because "It was reasonable for the.board to conclude a height variance for a billboard was an economic issue. The fact that the board might have reached a different conclusion does not make the conclusion it did reach either arbitrary or capricious."

¶ 14. Lamar appealed, and the court of appeals summarily reversed. Lamar, unpublished order at 1. The court concluded that the Board's "perfunctory recitation" of the criteria in the Milwaukee Code did not constitute a reasonable exercise of discretion. Id. at 1-2. On the contrary, the court of appeals believed the Board did not exercise its discretion at all. Id. at 2. The court of appeals remanded the case to the circuit court to "direct [the Board] to vacate its order, apply the criteria to the facts, and provide an explicitly reasoned decision on Lamar's application." Id. at 2, 4. The Board sought review in this court.

II. GENERAL PRINCIPLES AND STANDARD OP REVIEW

¶ 15. The legislature has granted the zoning power to cities and other local governments, but has conditioned that power with certain safeguards. Among these safeguards for cities is a board of zoning appeals, which must be created by any city exercising the zoning power. Wis. Stat. § 62.23(7)(e)l. ("The council... shall by ordinance provide for the appointment of a board of appeals . . . ."). The board consists of five members appointed by the mayor. Wis. Stat. § 62.23(7)(e)2. The purpose of a board is to hear appeals from any person "aggrieved" by a zoning decision of a municipal administrative official. Wis. Stat. § 62.23(7)(e)4. In order for a board to overturn the municipal official's decision, a supermajority vote — four of the five members — is required. Wis. Stat. § 62.23(7)(e)9. "The grounds of every such determination shall be stated." Id.

¶ 16. This case is before us on certiorari review, and we therefore accord a presumption of "correctness and validity" to the Board's decision. State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 13, 269 Wis. 2d 549, 676 N.W.2d 401. Our review is limited to: (1) whether the Board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the Board might reasonably make the order or determination in question based on the evidence. Id., ¶ 14. We conclude that the Board's action does not satisfy the second and third prongs of this test.

III. CORRECT THEORY OF LAW

¶ 17. The Board took up this matter in March 2001. At the time, the controlling law was our decision in State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). In Kenosha County, the court held that the proper standard for evaluating a request for an area variance was whether the landowner would be left with "no reasonable use of the property without a variance." Id. at 413. In other words, if the landowner had a "feasible use" without the variance, the application should be denied. Id.

¶ 18. An examination of the transcript shows that at least one of the Board members attempted to apply the Kenosha County "no reasonable use" test. Chairman Craig Zetley, explaining his decision to cast the vote ultimately responsible for denying Lamar's application, remarked that "there [are] other purposes for this land. It hasn't been shown that there isn't another purpose for this land."

¶ 19. Lamar filed its certiorari brief with the circuit court on June 12, 2001. On June 29, 2001, this court reached a divided decision in State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376. In Outagamie County, the court split over whether the "no reasonable use" standard should be "overruled (three justices), maintained but not applied to defeat the area variance in [that] case (two justices in concurrence) or maintained and applied to defeat the variance (two justices in dissent)." Ziervogel, 269 Wis. 2d 549, ¶ 3 (citing Outagamie County, 244 Wis. 2d 613, ¶ 5). In its brief to the circuit court, filed July 12, 2001, the Board cited the newly released Outagamie County decision.

¶ 20. While this case wended its way through the appellate process, this court decided two more cases directly relevant to the Board's decision. In Ziervogel, released March 19, 2004, a more united court determined that the "no reasonable use" test was "unworkable and unfair" when used to evaluate applications for area variances. Ziervogel, 269 Wis. 2d 549, ¶¶ 4-5. The court revitalized a standard first announced in Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976). Under the Snyder standard,

when considering an area variance, the question of whether unnecessary hardship... exists is best explained as whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome.

Ziervogel, 269 Wis. 2d 549, ¶ 7 (quoting Snyder, 74 Wis. 2d at 475) (internal citations omitted).

¶ 21. The court added that in making its determination, a board must consider the purpose of the zoning restriction, its effect on the property, and the effect a variance would have on the neighborhood and the larger public interest. Id., ¶ 7. We remanded the Ziervogel case because "whether [the Snyder] standard is met in this case will depend upon the board of adjustment's consideration of the [newly announced test]." Id., ¶ 42.

¶ 22. Two months later, we released State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514. In Waushara County, we reiterated the abrogation of the "no reasonable use" test for evaluating area variances. The party seeking a variance in that case asserted that the Wisconsin law on variances was "in a state of confusion" due to the interplay among Snyder, Kenosha County, and Outagamie County. Id., ¶¶ 16-18. The court candidly acknowledged: "It is evident that there is some confusion over how to interpret and apply our decisions in Snyder, Kenosha County, and Outagamie County." Id., ¶ 23. We stated in Waushara County that our purpose was to "give boards of adjustment and Wisconsin courts sufficient guidance as to how to resolve these types of cases in the future." Id. The court admitted that "it appears that the no reasonable use standard has been applied, since [.Kenosha County], in a very restrictive manner." Id., ¶ 32. In light of the new standards it announced, the court remanded the case for renewed consideration of the facts. Id., ¶ 35.

¶ 23. As did the Washington County Board of Adjustment in Ziervogel and the Waushara County Board of Adjustment in Waushara County, the Board in the instant case evaluated Lamar's application in 2001 under the Kenosha County "no reasonable use" rule. At that time, the state of the law was uncertain. The very purpose of the Waushara County decision was to give hoards of adjustment guidance in resolving area variance applications. We see no reason why, like those other two boards, this Board should not have the opportunity to reevaluate the facts under the principles we laid out in Ziervogel, Waushara County, and Outa-gamie County.

¶ 24. The Board's failure to proceed on the correct theory of law independently justifies a remand. However, counsel for the Board at oral argument emphasized that such a decision would not answer the critical question before the court involving whether the Board must deliver an "explicitly reasoned written decision," nor would it provide guidance to other boards of zoning appeal around the state. We agree that clarification of the court of appeals' decision is required, and accordingly, we proceed to discuss the adequacy of the Board's reasoning.

IV ADEQUACY OF THE BOARD'S REASONING

¶ 25. Certainly, a court's review of a zoning board's decision is deferential; the court "must accord a presumption of correctness and validity to a board of adjustment's decision." Ziervogel, 269 Wis. 2d 549, ¶ 13. The court should not disturb a board's findings if any reasonable view of the evidence supports them. Waushara County, 271 Wis. 2d 547, ¶ 13.

¶ 26. For certiorari review to be meaningful, however, a board must give the reviewing court something to review. State v. Trudeau, 139 Wis. 2d 91, 110, 408 N.W.2d 337 (1987); see also 3 Yokley Zoning Law and Practice § 18-9 at 18-62 (MacGregor rev. 2002) (hereinafter Yokley, Zoning Law and Practice) ("The record made before a board of adjustment is essential to an enlightened determination of its action by a governing body or by a court on review"); 3 Rathkopf The Law of Zoning and Planning § 62:47 at 62-133 (4th ed. (Ziegler rev.) 1975, supp. 2004) ("[T]he most common reason for a remand is that the findings of fact upon which the determination should be based are either entirely absent or are so inadequate that the determination cannot adequately be reviewed."). "The majority view is now that boards are generally required to make findings of fact and state reasons for their decisions." Yokley, Zoning Law and Practice § 20-16 at 20-68. In this case, the court of appeals characterized the Board's order as exhibiting an "absence of discretion." Lamar, unpublished order at 2. This amounts to a violation of the third prong of certiorari review.

¶ 27. The controlling statute is pithy, providing only that "The grounds of every such determination shall be stated." Wis. Stat. § 62.23(7)(e)9. The term "grounds" is not defined in the statute. Accordingly, we look to the common, ordinary, and accepted meaning of the word. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. A "ground" in the legal sense is defined as "The reason or point that something (as a legal claim or argument) relies on for validity." Black's Law Dictionary 710 (7th ed. 1999). The Board stated in conclusory fashion that Lamar's application was denied because it did not meet various statutory criteria. We believe that Lamar had the right to know not only the statutory criteria under which the Board rejected its claim, but also the reasons ("grounds") why the Board decided that the facts did not fit the statutory criteria.

¶ 28. Such an approach is consistent with historical interpretations of Wis. Stat. § 62.23(7)(e)9. In 1960 the League of Wisconsin Municipalities published Zoning Boards of Appeal: A Manual on Their Powers and Duties with Suggested Rules of Procedure, The League intended to provide guidance for Wisconsin's boards of zoning appeal. In discussing the required form of a board's decision, the League stated:

The decision of the board ... must contain ... reasons for the action taken ... .It is not sufficient for the hoard to give its reasons in the words of the statute such as, "The variance is granted because owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship." The exact nature of the hardship or difficulty found by the board should be stated.

Id. at 10 (citing Wis. Stat. § 62.23(7)(e)9. (emphasis added).

¶ 29. Requiring the Board to provide reasons for its determination is also consistent with common sense and traditional notions of due process. Accord Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970) ("[Due process] principles require that a recipient have timely and adequate notice detailing the reasons for a proposed [benefit] termination.").

¶ 30. The Board, and the League of Wisconsin Municipalities as amicus, argue that we proceed down a slippery slope if we affirm the court of appeals' conclusion that the Board's discussion was inadequate. They argue that under the court of appeals' decision, boards of zoning appeals must produce an "explicitly reasoned written decision." They note that we here consider the decision of the Board of Zoning Appeals for the City of Milwaukee, Wisconsin's largest community. In smaller communities, they observe, the boards may have less experience with governing legal standards, may not produce written opinions at all, and frequently have members who are neither attorneys nor are counseled by attorneys and cannot be expected to produce the type of finely-tuned legal reasoning expected from a court.

¶ 31. We understand and are sympathetic to the League's concerns. We realize that most board members are not attorneys and recognize that many boards in this state operate without issuing written opinions. We do not expect boards of zoning appeal to produce judicial opinions. We agree, in fact, that a written decision is not required as long as a board's reasoning is clear from the transcript of its proceedings.

¶ 32. Nonetheless, this court cannot and should not relax its standards of reasoning to the point where the standards are nonexistent. A board may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria. Accord League of Wisconsin Municipalities, Zoning Boards of Appeal at 10. Rather, we expect a board to express, on the record, its reasoning why an application does or does not meet the statutory criteria. Without such statement of reasoning, it is impossible for the circuit court to meaningfully review a board's decision, and the value of certiorari review becomes worthless. See Trudeau, 139 Wis. 2d at 110.

¶ 33. Finally, we address the Board's argument that it is "particularly troublesome and impractical" for a board to issue an "explicitly reasoned decision" because under the statute, the decision may effectively be controlled by a minority of the board. We disagree. Even when a board's decision is dictated by a minority, these controlling members of the board ought to be able to articulate why an applicant has not satisfied its burden of proof on unnecessary hardship or why the facts of record cannot be reconciled with some requirement of the ordinance or statute.

¶ 34. In its written order, the Board simply stated that Lamar's application did not meet the ordinance criteria, then recited the criteria. The court of appeals correctly perceived the problem with this approach. The Board may not rest on a declaration that an application does not meet certain ordinance criteria; the Board must explain why the application does not meet the criteria. In this case, the Board's written order did not do so.

¶ 35. That, however, is not the end of the inquiry because, as noted above, a written determination is not always necessary. We also review the transcript of the proceedings before the Board.

¶ 36. Member Szymanksi disagreed with Member Winkler's assessment that "We are faced with a very strong case of hardship." He also disagreed that nonconforming existing signage could be cited as precedent. He said he "hoped" existing signage "would be further diminished" because "I'm not a sign aficionado." He added that "the spirit and intent [of the ordinance] has not been met.. . [and] the hardship also has not been met, because it is intended to wind up generating some additional revenue for this facility . . . ."

¶ 37. Member Szymanski's remarks that he hoped existing signage would be diminished and that he is not a "sign aficionado," however heartfelt, are not relevant to a board's determination on a request for a variance. They might be characterized as expressions of his will and not his judgment. His other remarks were conclusory statements that the application did not meet the ordinance criteria. Member Szymanski did not explain why the application and supporting facts did not meet the criteria. His objection to the sign's revenue generation was not only a restatement of criteria in the Milwaukee ordinances (see Milwaukee Code § 295-95-2-b-3-5 (alleged hardship cannot be based solely on economic grounds)), but also a near per se rejection of any variance for a commercial sign.

¶ 38. Chairman Zetley's comments were also insufficient to justify a finding that the Board reasonably exercised its discretion. Chairman Zetley stated that he had three reasons for voting to deny the application. First, he believed "the exceptional circumstances have not been met. I believe that this is an economic issue." As we have noted, that reasoning is insufficient because it is circular. It merely restated the grounds laid out in the ordinance. Second, Zetley stated "there [are] other purposes for this land. It hasn't been shown that there isn't another purpose for this land." As we have described, this is a restatement of the now-abrogated "no reasonable use" test. Chairman Zetley's second reason is invalid. Third, Zetley stated, "making the signs bigger and bigger isn't something that this Chair is in favor of." Again, a member's personal feelings about signs are irrelevant to the Board's determination of whether the statutory criteria have been met.

¶ 39. We conclude that the Board did not satisfactorily express its reasons for denying Lamar's application. Our remand will allow the Board to reconsider the facts in the wake of Ziervogel and Waushara County. We caution that we believe the Board — with or without attorneys — can do a far better job of expressing its reasoning on the record. The Board must allow for meaningful certiorari review by stating the "grounds" for its decision — the reasons that Lamar's application does or does not fit the statutory criteria.

V CONCLUSION

¶ 40. We remand this cause to the circuit court with instructions to remand it to the Board. On remand, the Board should reconsider and, if necessary, rehear and decide this matter in conformance with the new legal standards governing area variances. The Board must also adequately express its reasons for approving or denying Lamar's application under the appropriate legal standards. This reasoning need not be embodied in a written decision as long as it is reflected in a transcript of the proceedings. We express no opinion on whether Lamar's application should be granted under Ziervogel and Waushara County. The Board is the body best suited to make such factual determinations, and we remand this cause to allow it to do so.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 41. (concurring). The majority opinion is careful to explain that "[a] board may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria." Majority op., ¶ 32. I agree with the rule advanced by the majority opinion.

¶ 42. The majority opinion analyzes each of the dissenters' rationales and leaves an important question unanswered: When there is no adequate written opinion, does one board member's explanation of his or her reasoning for granting or denying an application speak for a member who is silent, offering no reasoning, offers conflicting reasoning, or offers invalid or unclear reasoning?

¶ 43. A written opinion that adequately expresses reasoning in which the requisite number of board members joins is, without question, the reasoning of the Board. When there is no adequate written opinion and the court looks at the transcript of the proceedings, majority op., ¶ 3, the court no longer looks at the rationale of the board as an entity but rather looks at the rationales of individuals who comprise the board.

¶ 44. The majority opinion has left uncertain whether each member's reasoning must be analyzed when there is no written opinion of the board.

¶ 45. Here, only one of the three proponents of the variance, Board Member Winkler, expressed any reasoning prior to casting his vote. A second proponent, Board Member Cameron, asked, "What was the alderman's [position] on this?" Board Member Jackson seconded Board Member Winkler's motion to grant the variance, without more.

¶ 46. The majority opinion has left uncertain the procedure each member of a board must follow to ensure that the Board as a whole has provided adequate reasoning for granting or denying an application when the Board does not offer a written opinion.

¶ 47. For the foregoing reasons, I write separately.

        State v. Waushara County Bd. of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514; State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401; State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376.

       The property is located at 1632 North 12th Street in Milwaukee.

       At the Board's hearing, Lamar asserted that the WDOT had insisted upon using its own tree-trimming schedule. Although it planned on trimming the trees eventually, it would not do so at Lamar's request.

       Lamar also requested a special use permit pursuant to Milwaukee Code 295-513-16 because its structure is located within 300 feet of a multi-family residential district. The DCD granted that permit, and although it was briefly discussed before the Board, it is not at issue here.

       Alderman Willie L. Hines wrote a letter urging the Board to approve the variance.

       Wisconsin Stat. § 62.23(7)(e)9. (2001-02) provides that "The concurring vote of 4 members of the board shall be necessary to reverse any order, requirement, decision or determination of any... administrative official." All subsequent references to the Wisconsin Statutes are to the 2001-02 edition unless otherwise noted.

        See Wis. Stat. § 62.23(7)(e)10.

        See Wis. Stat. § 62.23(7)(a) (City council may exercise the zoning power "[flor the purpose of promoting health, safety, morals or the general welfare of the community.").

       In State v. Kenosha County Board of Adjustment, the parties disputed whether the same test should apply to use variances and area variances, and the court ultimately did not decide "whether there is a difference between the two types of variances." 218 Wis. 2d 396, 412 n.10, 577 N.W.2d 813 (1998).

       The application was considered on October 22, 2001. Ziervogel, 269 Wis. 2d 549, ¶ 11.

       The application was considered "in 2001." Waushara County, 271 Wis. 2d 547, ¶ 6.

       On file at Wisconsin State Law Library, Madison, Wisconsin.

       In the 1959 version of the Wisconsin Statutes, which were in effect at the time the League penned these words, the phrasing of Wis. Stat. § 62.23(7)(e)9. was identical to today's version. The statute has not changed.

       The League's position regarding the necessity of a written decision has apparently changed over the years. Almost 50 years ago, the League plainly stated: "The decision of the board must be reduced to writing and must contain written reasons for the action taken.... The final disposition of an appeal or application shall be in the form of a written resolution or order." League of Wisconsin Municipalities, Zoning Boards of Appeal: A Manual on Their Powers and Duties with Suggested Rules of Procedure 10, 45 (1960) (on file at Wisconsin State Law Library, Madison, Wisconsin).
      At oral argument, the Board's counsel repeatedly asserted that under the court of appeals' decision, boards are required to provide an "explicitly reasoned written decision." Closer review of the court of appeals’ opinion reveals that it never used the word "written." Opposing counsel also conceded that the Board's decision need not be reduced to writing. Neither does the controlling statute impose such a requirement; it provides only that "The grounds of [the Board's] determination shall be stated." Finally, we are unable to locate any Wisconsin case law requiring a written decision. As neither party asks us to impose such a requirement on the Board, we decline to do so.

       As we have noted, see supra n.14, we do not believe that the Board must provide a written decision. Accordingly, we proceed to consider the transcript of the proceedings before the Board.


source: Caselaw Access Project

author: DAVID T. PROSSER, J. JON E WILCOX, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. James M. Moran, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP561-CR.

      Oral argument April 12, 2005.

      Decided July 12, 2005.

    2005 WI 115
    (Also reported in 700 N.W.2d 884.)

      For the defendant-appellant-petitioner there were briefs by Colleen D. Ball and Appellate Counsel, S.C., Wauwatosa, and oral argument by Colleen D. Ball.

    For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    An amicus curiae brief was filed by Keith A. Findley, Byron C. Lichstein, John A. Pray and University of Wisconsin Law School, Madison, on behalf of the Wisconsin Innocence Project.
   DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Dane County, David T. Flanagan, Judge. The circuit court denied a motion by James M. Moran (Moran) for post-conviction deoxyri-bonucleic acid (DNA) testing of certain blood samples pursuant to Wis. Stat. § 974.07 (2001-02), enacted by the legislature in 2001.

¶ 2. We granted Moran's pro se petition for review which raised broad issues about § 974.07, and we appointed Attorney Colleen D. Ball to serve as Moran's pro bono counsel. Attorney Ball posed three questions focusing on § 974.07(7). The applicability of § 974.07(6) was raised at oral argument. After supplemental briefing by the parties, we determined that this case should be decided on the basis of § 974.07(6).

¶ 3. We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material, if the movant meets several statutory prerequisites. First, the movant must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, the movant must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his or her own expense. If a movant seeks DNA testing at public expense, the movant must proceed under § 974.07(7) (a) or (b), and satisfy the heightened requirements in subsection (7).

¶ 4. We remand this case to the circuit court to allow it to address whether Moran's motion satisfies the requirements in § 974.07(2) and (6), and if it does, to set conditions on the availability and integrity of the evidence.

I. FACTS AND PROCEDURAL HISTORY

¶ 5. Moran met Corrine Pinchard (Pinchard) at an exotic pet store he owned and operated in Madison. The two became romantically involved, but their relationship ended. The parties dispute who decided to break off the relationship. Pinchard eventually became involved with another man, Jacob Jensen (Jensen), who was also employed at Moran's pet store.

¶ 6. At about 1:00 A.M. on June 17,1994, Pinchard and Jensen were together in Pinchard's apartment. They became concerned that Moran would make an unwanted visit to the apartment after Pinchard received an anonymous phone call from someone pretending to he a maintenance man for the apartment building. Pinchard believed she recognized the anonymous caller as Moran. Pinchard knew that the outer back door to the apartment building had been tied open, and so she and Jensen decided to go downstairs to shut it. Refore leaving the apartment, Jensen armed himself with a brick he found in Pinchard's apartment.

¶ 7. Jensen and Pinchard never made it downstairs. When Jensen opened the stairwell fire door, he saw Moran on the stairs. The subsequent events were disputed at trial. Jensen claimed that Moran charged at him while holding a knife and pushed him down. According to both Pinchard and Jensen, Moran then pushed Pinchard into her apartment and locked the door while yelling that he planned to kill both Pinchard and himself. While Moran and Pinchard were locked inside the apartment, he stabbed her multiple times.

¶ 8. Jensen testified that he ran down the hallway to a nearby apartment. He alerted the occupants of what was happening and convinced them to call "911." Jensen testified that as he re-entered the hallway area and began to walk back, Moran emerged from Pinchard's apartment door. Leaving the apartment, Moran "charged" Jensen in the hallway, wielding the knife, and attempted to stab him in the chest. He succeeded only in slashing Jensen's hand and arm. Neither Pinchard nor Jensen could recall how or why Moran left the scene.

¶ 9. Pinchard and Jensen both testified that after the stabbings, they did not re-enter Pinchard's apartment. Instead, they waited for the police in the apartment down the hall where Jensen had earlier convinced the occupants to dial "911."

¶ 10. Moran's version of these events was very different. He admitted that he entered the building through the open back door. He claimed that after he saw Jensen in the stairwell, he pushed past Jensen to try to reach Pinchard. Moran claimed that after he passed Jensen, Jensen struck him in the back of the head with a blunt object, dazing him. A struggle between the two men ensued in Pinchard's apartment. Moran claimed that Pinchard attempted to intervene in the struggle, and while she did so, she was inadvertently stabbed multiple times.

¶ 11. Moran also admitted that he "cut" Jensen. Dr. Stuart Stitgen testified that Jensen suffered permanent muscle damage to his left wrist and that Moran severed nerves and tendons in Jensen's hand. Moran also cut Jensen deeply enough that he chipped one of the bones in Jensen's hand. Moran argued, however, that he inflicted all these injuries in self-defense while the two men struggled inside Pinchard's apartment, not in the hallway, as Jensen claimed.

¶ 12. Moran admitted that after this altercation, he fled the scene, discarded his shirt into a storm drain, and threw away his knife. He then either attempted or faked his own suicide, stole a vehicle, and drove to La Crosse. Upon arriving in La Crosse, he turned himself in to authorities and confessed to the stabbings, making no mention of self-defense.

¶ 13. During the investigation of the crime scene, the police obtained numerous blood samples in Pinchard's apartment, some of which are at issue here. Specifically, the police obtained a blood sample from the kitchen floor, a sample from a bloody brick near the bedroom, and a sample from the bedroom door. A private detective working for Moran obtained blood samples from the door of an apartment across the hall.

¶ 14. On the day of the incident, June 17,1994, the State charged Moran with two counts of attempted first-degree intentional homicide, contrary to § 939.32(l)(a) and § 940.01(1). On August 11, 1994, the State amended the complaint, adding the element of "using a dangerous weapon" (contrary to § 939.63(l)(a)2.) to each of the two attempted homicide counts and adding one count of taking and driving a vehicle without the owner's consent in violation of § 943.23(2). On January 13, 1995, the State again amended the complaint, adding two counts of first-degree reckless injury while using a dangerous weapon in violation of § 940.23(1) and § 939.63(l)(a)2.

¶ 15. Attorney Dennis E. Burke was initially appointed to represent Moran, but he withdrew on the grounds that his continued representation could result in a violation of the Code of Professional Responsibility.

¶ 16. Moran thereafter declined counsel and represented himself. The jury trial was held between February 27 and March 3, 1995. During trial, Moran pled guilty to one count of reckless injury and to the charge of taking and driving a vehicle without the owner's consent.

¶ 17. The jury trial on the remaining three counts developed into a credibility contest among Pinchard, Jensen, and Moran. Essentially, Pinchard and Jensen testified that the injuries they sustained occurred during separate encounters with Moran — Pinchard's after Moran locked her inside her apartment with him, and Jensen's in the hallway after Moran emerged from the apartment. By contrast, Moran testified that all the injuries to Pinchará and Jensen occurred at the same time, inside the apartment, while the three of them grappled together.

¶ 18. While testifying on his own behalf in narrative form, Moran decided to play for the jury the tape of his confession to the La Crosse police. He was later subjected to devastating cross-examination by the State. In addition to exposing the inconsistencies between Moran's trial theory of the case and his confession to the police, the State successfully introduced multiple letters and statements in which Moran repeated his confession to the stabbings.

¶ 19. In a rambling closing argument, Moran turned repeatedly to the subject of the "bloody brick," with which he alleged Jensen assaulted him.

It wasn't even taken into evidence. It was never tested for the type of blood on it. It was never tested for skin on it. It was never tested for hair.
I wish nothing more than to have that brick as evidence. I wish nothing more than blood samples would have been taken from all over that apartment. One drop of Jake's blood in that apartment and both their stories is a lie, all lies, because Jake was never inside the apartment!,] so he says.
How did the blood get on that brick? Is it Jake's blood? It doesn't have to be my blood. See if it is Jake's blood, that puts Jake in possession of that brick right there. Right? He has to have a hold of the brick before I cut him, or he has to have the brick after I cut him. But, in any case, he has still got that brick. You can't refute the fact that Jake was in possession of that brick at the time he received his injuries.

¶ 20. Ultimately, the jury accepted Pinchará and Jensen's version of the facts and convicted Moran on the remaining counts on March 3, 1995. On July 18, 1995, Dane County Circuit Judge Mark A. Frankel sentenced Moran to 72 years in prison.

¶ 21. Moran appealed, still proceeding pro se. An attorney appointed to represent him filed a "no merit" brief pursuant to Wis. Stat. § (Rule) 809.32 and Anders v. California, 386 U.S. 738 (1967). Moran filed a pro se response to the no merit brief and several amendments to his response. The court of appeals, upon consideration of the no merit brief and Moran's responses, affirmed. It also independently reviewed the record and found no additional potentially meritorious issues for review. This court denied Moran's petition for review on September 2, 1997.

¶ 22. Some time after the denial of his appeal, Moran retained Attorney George A. , Limbeck. On November 15, 1999, Attorney Limbeck sent a letter to Assistant District Attorney Jac G. H^itz "ask[ing] your consent and cooperation in having DNA typing done on all four[] blood samples . . . Attorney Limbeck promised that "my client would pay all expenses associated with the testing ... ."

¶ 23. Approximately three years later, on April 22, 2002, Moran filed a motion seeking DNA testing of a number of blood samples found at the scene, including three "unknown blood samples" taken from inside Pinchard's apartment and the blood sample from the door across the hall. The motion did not reference Wis. Stat. § 974.07, which was in effect at the time Moran filed his motion, having been included in the 2001 Budget Bill. See 2001 Wis. Act 16, § 4028j. Instead, Moran cited State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), and "point[ed] out to the court that the defendant has tried to have D.N.A. evidence tested for years." The circuit court denied the motion on August 21, 2002, stating that "[t]he defendant's motion offers no explanation as to how the testing of the five blood samples could have impact upon . . . the jury verdicts in this matter," and that "[s]uch evidence would not make more credible the defendant's absurd theory that he stabbed Ms. Pinchard nine times inadvertently."

¶ 24. In response, Moran filed another motion, this time citing Wis. Stat. § 974.07. Specifically, Moran alleged that his motion satisfied all the criteria set out in § 974.07(2). The circuit court denied this second motion on February 5, 2003. On February 13, 2003, Moran filed a "motion for reconsideration." The circuit court denied this "motion," stating that Moran had the right to appeal the order. Moran appealed, and the court of appeals affirmed. Moran filed a petition for review, which we granted on November 16, 2004.

¶ 25. In their briefs, the parties focused our attention almost exclusively on § 974.07(7), pertaining to court-ordered DNA testing. However, at oral argument on April 12, 2005, Moran's counsel directed our attention to § 974.07(6), under which a movant may request certain biological material from the district attorney. We requested supplemental briefs from both parties regarding the impact of Moran's argument under § 974.07(6).

II. STANDARD OF REVIEW

¶ 26. We must determine whether, under Wis. Stat. § 974.07, Moran has a right to obtain and test certain biological material. Statutory interpretation and the application of a statute to specific facts are questions of law that we review de novo. See State v. Harris, 2004 WI 64, ¶ 25, 272 Wis. 2d 80, 680 N.W.2d 737. This court clarified the proper method of statutory interpretation last term in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we stated: "statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Id., ¶ 45 (internal citations omitted). The court should assign the words in the statute their ordinarily accepted meaning. Id. The court may also consider the context and structure of the statute. Id., ¶ 46. " 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history." Id. (internal citations omitted).

III. ANALYSIS

¶ 27. Moran seeks to test blood samples obtained from the crime scene pursuant to Wis. Stat. § 974.07. That statute provides, in relevant part:

974.07 Motion for postconviction deoxyribonucleic acid testing of certain evidence.
(2) At any time after being convicted of a crime ... a person may make a motion in the court in which he or she was convicted... for an order requiring forensic deoxyribonucleic acid testing of evidence to which all of the following apply:
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction ....
(b) The evidence is in the actual or constructive possession of a government agency.
(c) The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
(6) (a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
1. Findings based on testing of biological materials.
2. The movant's biological specimen.
(c) Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of material requested under pars. (a)2. and (b)2. in order to protect the integrity of the evidence.
(d) This subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim at issue in the motion made under sub. (2).
(7)(a) A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:
1. The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).
2. It is reasonably probable that the movant would not have been ... convicted ... if exculpatory deoxyri-bonucleic acid testing results had been available before the prosecution [or] conviction ....
3. The evidence to be tested meets the conditions under sub.(2)(a) to (c).
(b) A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:
1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction... would have been more favorable to the movant if the results of ... testing had been available before he or she was prosecuted [or] convicted....
2. The evidence to be tested meets the conditions under sub.(2)(a) to (c).

¶ 28. Moran argues that he is entitled to testing under either Wis. Stat. § 974.07(6) or § 974.07(7).

A. Waiver

¶ 29. Before addressing the substance of Moran's position, we must address the State's argument that Moran has waived any reliance on Wis. Stat. § 974.07(6) by not raising that argument until very late in this appeal. The State notes that (1) Moran never filed a motion in the circuit court citing § 974.07(6); (2) Moran did not mention § 974.07(6) in his briefs to the court of appeals and, therefore, that court did not mention the subsection in its opinion; (3) Moran did not cite § 974.07(6) in his petition for review to this court, and this court did not mention that subsection in granting the petition; (4) Moran did not mention § 974.07(6) in his briefs to this court, except for a "passing reference" in his reply brief; and (5) Moran "expressly abandoned" any claim for relief under § 974.07(6) in his pro se brief to the court of appeals.

¶ 30. Moran responds that while he "did not precisely label the relief he sought, the substance of [the] request [was] clear enough." See bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983) ("Neither a trial nor an appellate court should deny a prisoner's pleading based on its label rather than on its allegations. If necessary the court should relabel the prisoner's pleading and proceed from there.").

¶ 31. While we agree with the State that "the general rule is that issues not raised in the circuit court are deemed waived," State v. Polashek, 2002 WI 74, ¶ 25, 253 Wis. 2d 527, 646 N.W.2d 330, the rule is not absolute. Id. The waiver rule articulates this court's general policy of judicial administration, not the extent of our power to hear issues. See Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). Thus, when an issue involves a question of law, has been briefed by the opposing parties, and is of sufficient public interest to merit a decision, this court has discretion to address the issue. Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998). Having determined that the interpretation of § 974.07(6) presents an issue of sufficient public interest to merit a decision, we gave both parties the right to fully brief the issue of § 974.07(6). They did so, and we now exercise our discretion to address the issue.

B. Section 974.07(6)

¶ 32. We begin our interpretation of § 974.07(6) with the plain language of the statute.

¶ 33. First, subsection (6) requires that, upon demand, the district attorney must disclose "whether biological material has been tested ... and make available . .. [f]indings based on testing of biological materials." Wis. Stat. § 974.07(6)(a)l. This provision serves as a limited post-conviction discovery statute that complements Wis. Stat. § 971.23.

¶ 34. The pretrial "discovery and inspection" statute requires a district attorney, "upon demand," to disclose

any reports ... of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any ... scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

Wis. Stat. § 971.23(l)(e) (emphasis added). The district attorney is also required to turn over "[a]ny physical evidence that the district attorney intends to offer in evidence at the trial," § 971.23(l)(g), and "[a]ny exculpatory evidence." § 971.23(l)(h) (emphasis added).

¶ 35. The post-conviction discovery statute, § 974.07(6)(a), permits a person to obtain information about findings based on testing of biological materials that the district attorney was not required to disclose before trial or that a government agency obtained after trial.

¶ 36. The statute also requires the district attorney to disclose "[p]hysical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material." Wis. Stat. § 974.07(6)(a)2.

¶ 37. The scope of § 974.07(6)(a)2. is problematic because § 974.07 does not define the term "biological material." A newly adopted supreme court rule regarding record retention, SCR 72.01(46m), provides in part: "Any criminal case exhibit identified by the parties, the clerk, or the court as containing biological material and that remains in the court's custody shall be retained for 50 years after entry of final judgment or until the court otherwise orders the disposition of the evidence under s. 974.07, Stats." (Emphasis added.) This rule suggests a process for identifying exhibits that must be retained. However, Wis. Stat. § 974.07(6)(a)2. is more open ended, as it requires a district attorney to disclose "physical evidence . .. that contains biological material or on which there is biological material" that was obtained and retained before the above-cited rule was adopted as well as "physical evidence" that was never used at a trial.

¶ 38. The State argues that it need make available only materials that have already been tested. Essentially, the State claims that the statute requires the district attorney to "make those test results available to the defense . . . along with the biological material that has been so tested." (Emphasis added.) For good or ill, the plain language of the statute leads us to a different conclusion.

¶ 39. We would have to add language to the statute in order to justify the State's interpretation. If the State's interpretation were correct, the following underlined language would have to be added to § 974.07(6)(a)2:

(6) (a) Upon demand the district attorney shall disclose to the movant... whether biological material has been tested and shall make available to the mo-vant ... the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that has been tested and is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.

Wis. Stat. § 974.07(6) (underlined text supplied).

¶ 40. The second subdivision does not contain the emphasized language. By contrast, subdivision (6)(a)l. does contain language specifying that the State must release findings "based on testing." The second subdivision contains no such qualification, and it is not this court's role to supply such language. We are simply " 'not at liberty to disregard the plain, clear words of the statute.'" Kalal, 271 Wis. 2d 633, ¶ 46 (citation omitted).

¶ 41. Nonetheless, because subdivision (6)(a)2. is so open ended in terms of the "physical evidence" that a district attorney is required to disclose, there is a practical necessity that a motion to disclose should comply with Wis. Stat. § 971.30(2), stating "with particularity" the evidence or the type of evidence that the movant is seeking.

¶ 42. Second, the plain language of the statute requires that the requested material be "relevant to the movant's claim at issue in the motion made under sub. (2)." Wis. Stat. § 974.07(6)(d). Subsection (2) , in turn, imposes three requirements. First, the evidence containing biological material must be "relevant to the investigation or prosecution that resulted in the conviction ...." Second, the evidence must be in the government's possession. Third, the evidence must not have been subjected to forensic DNA testing or, if so tested, "may now be subjected to another test that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results." The third requirement listed in subsection (2) provides an additional reason why subsection (6) does not apply only to material that has already been tested.

¶ 43. Assuming that the State possesses material that the movant wishes to test, the circuit court must undertake the three-pronged analysis in Wis. Stat. § 974.07(2). If these requirements are satisfied, the plain language of the statute dictates that the movant should receive access to the evidence, and may subject the material to DNA testing at his or her own expense. At that point, the circuit court may set conditions on the testing pursuant to Wis. Stat. § 974.07(6)(c).

¶ 44. In this case, the circuit court did not evaluate whether the evidence met the requirements in sub. (2) because it concluded that "[t]he defendant's motion offers no explanation as to how the testing of the five blood samples could have impact upon. . . the jury verdicts in this matter," and that "[s]uch evidence would not make more credible the defendant's absurd theory that he stabbed Ms. Pinchard nine times inadvertently."

¶ 45. Because the circuit court did not analyze the language of § 974.07(2), it did not specifically determine whether the evidence was relevant. Wisconsin Stat. § 904.01 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We have noted that the circuit court has "considerable discretion" in determining whether a particular piece of evidence is "relevant." Chart v. Gen. Motors Corp., 80 Wis. 2d 91, 102, 258 N.W.2d 680 (1977). We have described the appropriate inquiry as " 'whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case.'" Shapiro v. Klinker, 257 Wis. 622, 626, 44 N.W.2d 622 (1950) (citation omitted).

¶ 46. It will be Moran's burden on remand to show that the tests he seeks to conduct will be relevant to his prosecution (namely, his conviction or his sentence). For instance, Moran will have to show that the determination of whose blood is on the "bloody brick" is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

¶ 47. We note that allowing Moran to test the evidence at his expense does not guarantee that he will get a new trial, or even an evidentiary hearing. Rather, if the testing is done, the circuit court will determine whether or not the results "support the movant's claim." Wis. Stat. § 974.07(9)-(10). If the results support the claim, the court will hold an evidentiary hearing to determine the appropriate relief. Wis. Stat. § 974.07(10).

¶ 48. Because it did not consider Moran's motion under the standards set out in § 974.07(2) and (6), the circuit court proceeded on the wrong theory of law. Accordingly, we remand this case to the circuit court in order to allow it to analyze Moran's motion under the proper standard.

¶ 49. We acknowledge the plausibility of the position that all motions for testing, as opposed to inspection, should proceed under Wis. Stat. § 947.07(7). Nonetheless, our conclusion that a person willing to pay for the testing himself may proceed under subsection (6) is buttressed by State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707, 681 N.W.2d 316. In Hudson, the court of appeals considered a prisoner's motion for DNA testing under § 974.07(6) and (7). In Hudson, the State "concede [d] the trial court erred by construing [subsection 6] to prevent independent testing of certain items at [the defendant's] expense, subject to protective conditions imposed by the trial court," id., ¶ 12, so that the court of appeals did not address the issue.

¶ 50. Although it had argued before the circuit court that § 974.07(6) did not apply, the State changed its position in Hudson before the court of appeals and conceded that the defendant had a right to test the qualifying material at his own expense. In its brief in Hudson, the State argued that § 974.07(6) is ambiguous because it "does not state the purposes for which the state must make the biological material available ... nor does it impose any limitations on what the defendant may do with the material." Significantly, the State did not advance the argument it makes in this case that subsection (6) applies only to material that has already been tested.

¶ 51. After examining the legislative history of the statute, the State's Hudson brief concluded that, "the better interpretation of sub. (6)(a) is that if the defendant has the ability to have the requested material tested at his own expense, the statute requires the state to make those materials available for testing subject to any protective order entered under sub. (6)(c) to protect the integrity of that material."

¶ 52. In the present case, the State has reversed course and reasserts the position it took at the circuit court level in Hudson. The State argues that "Moran has no right to relief under § 974.07(6) because he has demonstrated no right to relief under sub. (7)." The State correctly notes that when a movant invokes subsection (6), the court must determine whether the "material being made available is relevant to the movant's claim at issue in the motion made under sub. (2)." Wis. Stat. § 974.07(6)(d). However, the State then jumps to the conclusion that, "[a] claim for relief under sub. (2) then channels directly and narrowly into a request for mandatory testing under sub. (7)(a), and/or for discretionary testing under sub. (7)(b)."

¶ 53. That interpretation of sub. (6) was advanced by the circuit court in Hudson. On appeal, the State took the position that such an interpretation was incorrect and the court of appeals therefore reversed the circuit court as to that issue. Hudson, 273 Wis. 2d 707, ¶ 12. We think the position the State advanced in Hudson is more defensible than the position it takes here, and we disagree that resort to legislative history is necessary to reach the Hudson result.

¶ 54. In this case, the State relies on legislative history to support its interpretation that a motion under sub. (6) "channels directly and narrowly" into sub. (7). Nothing in the plain language of the statute "channels" subsection (6) or subsection (2) "directly and narrowly" into subsection (7). Indeed, subsection (7) is not even mentioned in either of the other two subsections. Because we resolve this case based on the plain language of the statute, we "stop the inquiry." Kalal, 271 Wis. 2d 633, ¶ 45. Murky legislative history should not be permitted to undermine plain statutory language.

¶ 55. Because we conclude that § 974.07(6) applies, we need not address the parties' arguments relating to § 974.07(7), except to note our disagreement with the State's argument that our holding marginalizes the importance of (7). As we see it, the statutory text makes clear that subsections (6) and (7) are intended for different purposes. Subsection (6) allows the movant access to the test results and/or material under some circumstances, but the movant must decide whether to test the material and must pay for the testing himself. Subsection (7), on the other hand, pertains to court-ordered testing at the State's expense.

¶ 56. The harsh reality of life is that some persons who have been convicted of crime may have the means to hire attorneys or investigators post-conviction under circumstances that would never justify the expenditure of public money. The court is being asked in this case to prevent a person from conducting DNA testing at his own expense. We are unable to discern from the plain language of § 974.07 a clear legislative intent to block testing demanded by a person willing and able to pay until that person satisfies the requirements for publicly funded DNA testing. We encourage the legislature to revisit Wis. Stat. § 974.07 to define undefined terms, set limits to the evidence that must be provided, and give courts clear guidelines in procedure.

IV CONCLUSION

¶ 57. We conclude that the plain language of § 974.07(6) gives the defendant the right to test the sought-after evidence containing biological material if the circuit court determines that Moran meets all statutoiy prerequisites. First, Moran must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, Moran must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, Moran must conduct any testing of the evidence at his own expense. If a movant seeks DNA testing at public expense, the mo-vant must proceed under § 974.07(7)(a) or (b), and satisfy the heightened requirements in subsection (7). Subsection (6) provides free access to evidence but it does not provide free testing. Moran must pay for any testing permitted under subsection (6) himself.

¶ 58. We remand this case to the circuit court to allow it to address whether Moran's motion satisfies the requirements in Wis. Stat. § 974.07(2) and (6), and if it does, to set conditions on the availability and integrity of the evidence.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

JON E WILCOX, J.

¶ 59. {concurring). I reluctantly agree with the majority's holding in this case. I write separately, however, to address the serious concerns raised by the broad language in Wis. Stat. § 974.07(6) (2001-02), and I strongly urge the legislature to take a hard look at the practical consequences of this subsection. Although I am personally troubled with the end result, the plain language of § 974.07(6) gives Moran the right to access the "bloody brick" for DNA testing if, on remand, the circuit court determines that Moran meets all of the statutory prerequisites.

¶ 60. First, the plain language of § 974.07(6)(a)2. requires the district attorney to make available to the defendant "[pjhysical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material." Contrary to the State's position, nothing in subsection (6) requires the district attorney to make available only materials that have already been tested. In contrast, § 974.07(6)(a)l., explicitly contains language specifying that the district attorney must release "[f]ind-ings based on testing of biological materials." (Emphasis added.) Thus, while subdivision 1. is expressly limited to material that has been tested, I fully agree with the majority that "[t]he second subdivision contains no such qualification, and it is not this court's role to supply such language." Majority op., ¶ 40.

¶ 61. Second, the plain language of § 974.07(6) states that "[t]his subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim at issue in the motion made under sub. (2)." Wis. Stat. § 974.07(6)(d). Subsection (2), in turn, requires that the evidence "has not previously been subjected to forensic [DNA] testing or, if the evidence has previously been tested, it may now be subjected to another test. .. ." Wis. Stat. § 974.07(2)(c). Thus, § 974.07(2)(a) further demonstrates that subsection (6) is not limited to material previously tested.

¶ 62. Therefore, based on the plain language of the relevant statutes, I am compelled to conclude that § 974.07(6) requires the district attorney to make available for DNA testing all physical evidence containing biological material, regardless of whether it was previously tested, if the requirements of § 974.07(2) are satisfied.

¶ 63. I fully acknowledge the value and importance of DNA evidence and testing to the criminal justice system. However, in light of this court's holding that recently-discovered DNA evidence not available during trial results in the real controversy not being tried and warrants a reversal of a conviction, see State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, the majority opinion in this case will have far-reaching consequences for the finality of convictions. While I am sensitive to the problem of false convictions, Armstrong and today's majority opinion have the potential to overburden our justice system and work great mischief for numerous legitimate convictions.

¶ 64. In Armstrong, this court held that the defend.ant was entitled to a new trial based on newly-discovered DNA evidence because it concluded that such DNA evidence proved "the real controversy was not fully tried," id., ¶ 2, despite the "mountain of other evidence incriminating Armstrong that [was] not affected in any way by the DNA test results at issue." Id., ¶ 174 (Roggensack, J., dissenting). Essentially, the Armstrong majority, "equate[d] the idea of the 'matter not being fully tried' with new scientific identification procedures in a way that threatens to reopen convictions statewide every time a scientific improvement occurs, regardless of the lack of a probable effect on the issues underlying the jury's verdict." Id., ¶ 180 (Roggensack, J., dissenting). Thus, the combined result of Armstrong and the present case is that convicted criminals now have easy access to biological material for DNA testing and a lower threshold to meet to overturn their conviction based on the results of that testing, even if there is a mountain of evidence supporting their conviction.

¶ 65. I note that the legislative history of § 974.07(6) indicates that the provision was added by a Legislative Reference Bureau attorney who suggested that a "discovery provision for postconviction DNA testing" was necessary. Letter from Robin Ryan and Michael Dsida, Legislative Attorneys, to Scott Walker, Waukesha Representative in the Wisconsin State Assembly (Dec. 8, 2000) (on file with the Legislative Reference Bureau). However, the drafting records contain very little commentary on this new provision. It seems that no one involved considered this provision as an additional means of obtaining material for testing; rather, the provision was viewed merely as a discovery provision of material that had already been tested. The drafters apparently assumed there were two possible ways that postconviction DNA testing could happen: mandatory court-ordered testing and discretionary court-ordered testing.

¶ 66. Also, I note that the majority opinion seems to open up § 974.07(6) to an attack on equal protection grounds. The majority states that under subsection (6) "the movant must conduct any testing of the evidence at his or her own expense." Majority op., ¶ 3. It would seem that there is no reason why someone who cannot afford to pay for such testing would not be equally entitled to such evidence.

¶ 67. In sum, the plain language of § 974.07(6) leads me to reluctantly join the majority opinion. As such, I respectfully concur.

¶ 68. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this concurrence.

        State v. Moran, No. 2003AP561-CR, unpublished slip op. (Wis. Ct. App. Mar. 18, 2004).

       All subsequent references to the Wisconsin Statutes are to the 2001-02 edition unless otherwise indicated.

       Moran exposed some inconsistency in Jensen's account through testimony from occupants of the other apartment. They said that Jensen came in the second apartment only once, after he had been wounded, not twice, as his story went.

       Dr. Nicholas Augelli treated Pinchard for nine stab wounds, some of which were deep enough that they may have penetrated Pinchard's chest cavity. One caused her right lung to collapse. Dr. Augelli testified that Pinchará was "in shock" when he treated her.

       The arresting officer read Moran his Miranda warnings. Moran replied that he was aware of his rights and nevertheless wanted to "tell [the officer] what happened." Moran stated "that he had been involved in a stabbing in Madison, that he thought he may have killed two people." Moran stated that he couldn't be sure whether Pinchará and Jensen were alive or dead and "for that reason it was getting the best of him, he couldn't live with himself because of not knowing." Moran also confessed the stabbings to the booking officer at the La Crosse County Sheriffs Department.

       The reasons for Attorney Burke's withdrawal are not material to this case.

       The court sentenced Moran to 25 years, consecutively, for each count of attempted homicide; 10 years, consecutively, for each count of reckless injury; and 2 years for the vehicle theft.

        State v. Moran, No. 96AP1575-CRNM, unpublished slip op. at 2 (June 12, 1997). In Anders, the court held that appointed counsel, upon finding the petitioner's case wholly frivolous, could file a letter brief with the court so stating, and thus discharge his or her duty of representation. Anders v. California, 386 U.S. 738, 744 (1967). However, the letter brief must contain references to anything in the record supporting the petitioner's appeal, and the petitioner must be allowed to proceed pro se if he so chooses. Id.

        State v. Moran, No. 96AP1575-CRNM, unpublished slip op. at 2 (June 12, 1997).

        Id.

        Id. at 10.

        State v. Moran, 212 Wis. 2d 689, 569 N.W.2d 590 (1997) (Table).

       Attorney Limbeck's letter referenced four blood samples: (1) blood found at the scene on the door to an apartment across the hall from Pinchard's apartment; (2) Moran's blood; (3) Pinchard's blood; and (4) Jensen's blood.

       According to the State, "Moran fired Attorney Limbeck before any action was taken in response to Limbeck's letter."

       On April 22, 2002, Moran also asked the court to maintain "any/all D.N.A. evidence that relates" to his case.

        State v. Moran, No. 2003AP561-CR, unpublished slip op. (Wis. Ct. App. Mar. 18, 2004). Moran's case was decided in the circuit court and the court of appeals before the decision in State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707, 681 N.W.2d 316. See ¶¶ 49-51, infra.

       The State relies on Moran's assertion that "My parents [are] unable to [pay for DNA testing] now, as this situation has been drug out for nearly four (4) years and at an enormous cost to my parents which they can not afford to do forever." The State argues that as Moran admitted in the past that he could not pay for the testing, there is no reason to authorize him to do so under (6).

        Cf. State v. Caban, 210 Wis. 2d 597, 605-06, 563 N.W.2d 501 (1997); State v. Garner, 207 Wis. 2d 520, 532, 558 N.W.2d 916 (Ct. App. 1996).

       Hudson filed a post-conviction motion for DNA testing of ten items not previously tested, seven containing blood. State v. Hudson, 2004 WI App 99, ¶ 18, 273 Wis. 2d 707, 681 N.W.2d 316.

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