author: DEININGER, J.

text:
    Geoffrey L. Bilda and Virginia Schumann, Individually, and as representatives of a class consisting of all members, participants, retirees and beneficiaries of the ERS in any given year that its administrative and operational expenses were paid for with its funds, including, but not limited to, all retirees and beneficiaries currently receiving benefits from the ERS, former employees of Milwaukee County who have an interest in the ERS but are not yet receiving benefits from it and all current employees of Milwaukee County that are members of the ERS regardless of whether their interest in the ERS has vested, Plaintiffs-Appellants, v. County of Milwaukee, Wisconsin, and Milwaukee County Employes' Retirement System Pension Board, Defendants-Respondents, Wisconsin Counties Mutual Insurance Company, Intervenor.
    Court of Appeals

      No. 2004AP2539.

      Submitted on briefs August 10, 2005.

      Decided March 23, 2006.

    2006 WI App 57

      (Also reported in 713 N.W.2d 661.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John F. Fuchs of Fuchs, DeStefanis & Boyle, S.C., Milwaukee; Eugene O. Duffy and Kerry E. Dwyer of O'Neil, Cannon, Hollman, DeJong, S.C., Milwaukee.
    On behalf of the defendant-respondent County of Milwaukee, the cause was submitted on the briefs of Alan M. Levy of Lindner & Marsack, S.C., Milwaukee.
    On behalf of the defendant-respondent Milwaukee County Employes' Retirement System Pension Board, the cause was submitted on the briefs of Emery K. Harlan, Brian A. Price, and Erin C. Hughes of Gonzalez, Saggio & Harlan, L.L.P., Milwaukee.

      Before Lundsten, EJ., Deininger and Higginbotham, JJ.

       Petition to review denied 6-14-06.

   DEININGER, J.

¶ 1. Geoffrey Bilda and Virginia Schumann, class representatives for "members, participants, retirees and beneficiaries" of the Milwaukee County Employes' Retirement System, appeal a judgment that dismissed their action seeking compensation from and declaratory relief against Milwaukee County and its Employes' Retirement System Pension Board. Bilda claims that a 1992 change in the way in which retirement fund administrative expenses are paid contravenes applicable state legislative enactments and constitutes a taking of property for a public purpose without just compensation, in violation of the Wisconsin Constitution. On cross-motions for summary judgment, the circuit court concluded that the 1992 change did not "diminish or impair .. . benefits or other [participant] rights" and, thus, did not violate the quoted legislative limitation on the County's "home rule" over its retirement system. The court also concluded that there had been no taking of the plaintiffs' property, and, accordingly, no constitutional violation. The circuit court granted summary judgment to the County and dismissed the action with prejudice. We affirm the judgment doing so.

BACKGROUND

¶ 2. Milwaukee County administers a retirement system for its employees that is separate and distinct from the State of Wisconsin Retirement System established and governed under Wis. Stat. ch. 40 (2003-04). Prior to 1965, however, the State Legislature, through a series of session laws beginning with 1937 Wis. Laws, ch. 201, directed how the Milwaukee Employe Retirement System was to be administered. The system provides retirement, disability and death benefits to participating county employees. It is administered by a pension board made up of employees and county board designees. 1937 Wis. Laws, ch. 201, § 8(5), directed the pension board to maintain a separate "Expense Fund," to which "shall be credited all money provided by the county to pay the administration expenses of the retirement system, and from which shall be paid all the expenses necessary in connection with the administration and operation of the system." Id. The board was also directed to "[a]nnually ... estimate the amount of money which shall be deemed necessary to be paid into the expense fund during the ensuing year for the expenses of operation of the retirement system, and such amount shall be paid to the expense fund for this purpose by the county." Id.

¶ 3. In 1965, the legislature granted the County "home rule" over its employee retirement system. The legislation provided:

Each county which is required to establish and maintain a retirement system pursuant to this act is hereby empowered by county ordinance, to make any changes in such retirement system which hereafter may be deemed necessary or desirable for the continued operation of such retirement system, but no change shall operate to diminish or impair the annuities, benefits, or other rights of any person who is a member of such retirement system prior to the effective date of any such change.

1965 Wis. Laws, ch. 405, § 2. In addition, "for the further purpose of safeguarding the stability" of the Milwaukee County Employe Retirement System, ch. 405 directed the creation of a "pension study commission" in Milwaukee County "to have jurisdiction over all proposed changes" to the system. Id. The legislature charged the commission to "advise the county board as to the actuarial effect and the cost implications of all proposed changes," with a further directive that "[n]o change in [the] retirement system shall be considered by the county board until it has been referred to the commission ... and until said commission has submitted a written report on the proposed change." Id.

¶ 4. Milwaukee County responded to the "home rule" legislation by enacting Chapter 201 of the county ordinances, which sets out provisions for administering the Employes' Retirement System, largely incorporating those enacted by the legislature in session laws since 1937. As originally enacted, the county ordinance specified that "all expenses in connection with the administration and operation of the retirement system are hereby made obligations of the County." In 1992, however, the County amended its ordinance to provide that "all expenses in connection with the administration and operation of the retirement system are hereby made obligations of the retirement system." The circuit court stated in its summary judgment decision that " [thereafter, [the retirement system] paid for its own administrative expenses and the County made annual contribution payments which were and are actuarially sufficient to pay the costs of. .. benefit obligations as well as ... administration," a fact which Bilda does not dispute.

¶ 5. Prior to the County Board's adoption of the 1992 ordinance amendment regarding the payment of administrative expenses, the Milwaukee County Pension Study Commission met to consider the proposed amendment and an actuarial report regarding it. The minutes of its meeting indicate that the commission received input from County human resources personnel, as well as from members of the pension board, its attorney and its actuary. The minutes reflect that the actuary informed the pension study commission that

there are adequate funds for this purpose [paying retirement system administrative expenses] and the County is making contributions to make sure that continues. He stated that he did not see that the payment of these costs each year would materially affect the funding of the plan, as long as those monies are reimbursed to the fund, over time, through additional contributions.

The commission voted unanimously to "recommend adoption of the proposed ordinance," which the Milwaukee County Board did several days later on November 5, 1992.

¶ 6. Bilda commenced this action on June 18,2003, on behalf of a class consisting of "all persons who were or are members, retirees and beneficiaries of the Milwaukee County Employes' Retirement System in any given year that [the system] administrative and/or operational expenses were paid for with funds of [the system]." Bilda alleged that payment of administrative, operational and investment management costs directly out of system funds and/or earnings "was contrary to law and has operated to diminish or impair the annuities benefits or other rights" of class members. He also asserted that the retirement system's payment of these costs "diminished and impaired the... rights" of class members in the system's "funds and earnings of those funds and constitutes an unconstitutional taking of a substantial property interest without just compensation in violation of Article I, § 13 of the Wisconsin Constitution."

¶ 7. Bilda and the County both moved for summary judgment. The court granted the County's summary judgment motion, denied Bilda's and ordered Bilda's complaint dismissed with prejudice. Bilda appeals the subsequent judgment that dismissed the action and awarded the County statutory costs.

ANALYSIS

¶ 8. We review the dismissal of an action on summary judgment de novo, applying the same methodology and standards as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no disputed issues of material fact, summary judgment is proper where the moving party is entitled to judgment as a matter of law. See id. Bilda does not argue that disputed material facts preclude summary judgment. Rather, he claims the circuit erred in concluding that the County, and not he, was entitled to judgment as a matter of law.

¶ 9. Bilda challenges the County's current method of paying the administrative expenses of its retirement system on two grounds, one substantive and the other procedural. Substantively, he claims that the County's annual contribution to the retirement fund of an amount sufficient to meet the anticipated payments of benefits to system participants and the system's amortized administrative costs, instead of directly paying for administrative expenses of the system on an annual basis, violates state legislative directives and the takings clause of the Wisconsin Constitution. His procedural claim is that the Milwaukee County Board, when it amended the County's ordinance in 1992 to establish the current method of paying system expenses, did not comply with the requirement of the "home rule" legislation, 1965 Wis. Laws, ch. 405, that "[n]o change in a retirement system shall be considered by the county hoard until... [the county's pension study] commission has submitted a written report on the proposed change." Id., § 2.

¶ 10. We first address the asserted defect in enactment of the 1992 ordinance amendment. Bilda contends that "[i]t is undisputed that Milwaukee County did not comply with [1965 Wis. Laws] Chapter 405," whose provisions he claims were "mandatory" not "directory," when it amended the ordinance. He further asserts that the County's alleged failure to comply with 1965 Wis. Laws, ch. 405, when it adopted the 1992 ordinance amendment "failed to create a valid liability of the [retirement system] and the subsequent payment of expenses from the [system] trust is a taking of Plaintiffs' property." In short, Bilda would have us declare the 1992 ordinance amendment void because the pension study commission did not submit "a written report on the proposed change." He relies on several precedents that declare municipal enactments void for noncompliance with statutory mandates. See, e.g., Scanlon v. City of Menasha, 16 Wis. 2d 437, 444, 114 N.W.2d 791 (1962) (concluding that a resolution to sell city property was void for city's failure to first refer the matter to the plan commission as required by statute).

¶ 11. The County, however, disputes that "it did not comply with Chapter 405" when it enacted the 1992 ordinance amendment. It maintains that it complied ■with the requirement in 1965 Wis. Laws, ch. 405, for the referral of a proposed retirement system change to the County Pension Study Commission and that the commission substantially complied with the requirement that it submit "a written report on the proposed change." We agree. As we have noted, several days before the county board's adoption of the amendment, the pension study commission met to consider the proposed amendment. The retirement system's actuary presented his projections to the commission and advised it that the system was adequately funded to accommodate the change in how administrative expenses were to be paid, and further that the change would not "materially affect the funding of the plan." The actuarial input and advice were noted in the commission's written minutes, as was its unanimous vote to recommend adoption of the amendment to the ordinance.

¶ 12. The legislature's express purpose for requiring that proposed changes to the County's retirement system be referred to the pension study commission and that no change be acted upon by the county board until the commission had reported its advice regarding "the actuarial effect and the cost implications" of the proposed change, was to "safeguardO the stability of [the] retirement system[]." See 1965 Wis. Laws, ch. 405, § 2. We conclude that this purpose was amply served on the present facts, with the only deviation from the legislative requirements being that the commission's advice was communicated via its written meeting minutes, rather than in a separate "written report on the proposed change," labeled as such This is a vastly different circumstance than in Scanlon, where the city council acted without ever referring the proposed property sale to the plan commission as required by statute. As the supreme court explained in State ex rel. Crucible Steel Casting Co. v. Wisconsin Tax Comm'n, 185 Wis. 525, 534-35, 201 N.W. 764 (1925), a legislative enactment will not be set aside for failure to conform to "the strict letter" of a procedural requirement where the "object and purpose" of the requirement has been accomplished. We therefore reject Bilda's procedural challenge to the 1992 amendment.

¶ 13. We next address Bilda's substantive argument that the 1992 change in how retirement system administrative expenses are paid violates applicable legislative enactments and constitutes an unconstitutional taking of property for a public purpose. His argument proceeds roughly as follows: He and other participants in the system, whether current employees, annuitants or beneficiaries, possess a property interest in the county retirement fimd as a whole. The pre-"home-rule" legislative direction that the County must directly pay the cost of administering the system still applies because of the directive in the home-rule legislation that members' rights and benefits may not be "impaired or diminished" by any subsequent County-initiated changes to the system. Bilda cites several precedents holding that state attempts to divert retirement funds held in trust for participants to other public purposes were unconstitutional. He contends we must reach a similar conclusion here regarding the current method of paying the costs of administering the County's retirement system, notwithstanding the undisputed facts that the County's annual contributions to its retirement fund reimburse it for amortized administrative costs and no member's benefits are reduced as a result of the change in how expenses are paid.

¶ 14. When a claimant asserts a violation of the takings clause of the Wisconsin Constitution, we must first determine whether a property interest exists, and next, whether the property interest has been taken. Wisconsin Prof'l Police Ass'n, Inc. v. Lightbourn, 2001 WI 59, ¶¶ 132-33, 243 Wis. 2d 512, 627 N.W.2d 807. As the County observes, the analysis of whether a property interest exists is often intertwined with the question of whether any property interest has been taken. See, e.g., id. at ¶¶ 189-92. Bilda's claim plainly founders on the second inquiry and perhaps on both. We recognize that Bilda and fellow members of the plaintiff class possess a property interest in the assets and income of the county retirement system, and that they have certain vested and contractual rights that are protectable under not only the United States and Wisconsin Constitutions, but under applicable precedents (see footnote 5), state legislative enactments and the County ordinance itself. We conclude, however, that the system participants do not have a right to dictate how, within the requirements and limitations imposed by law, the system is administered and funded on a day-to-day or year-to-year basis. The supreme court's analysis in Lightbourn supports this conclusion.

¶ 15. The supreme court concluded in Lightbourn that "participating employees [do not have] a property right to determine exactly how employers fulfill their benefit commitments." Id., ¶ 179. Rather, the governing statute "gives them a property right in having their benefit commitments fulfilled . .. [but not] a legal right to veto legislative decisions about benefit funding without showing some tangible injury." Id. We agree with the County that the supreme court's analysis in Lightbourn is applicable here. Here, as in Lightbourn, a state legislative enactment permits changes to a retirement system for public employees, provided that no changes "diminish or impair" (or "abrogate") existing participants' rights or benefits in the system. Here, as well, the change implemented in 1992, like the "employer credit" challenged in Lightbourn, has not been shown to "damage the property interests" of system participants. See Lightbourn, ¶ 192.

¶ 16. Bilda attempts to distinguish the holding in Lightbourn on the grounds that it deals with the state retirement system and not the County's system, overlooking the fact that he also relies, in part, on precedents involving state retirement systems (see footnote 5). He points to no evidence in the present record, however, from which a fact-finder could conclude that he or any member of the class has suffered any injury whatsoever from the County's election to change the method by which it reimburses the retirement system for operational and administrative expenses. Bilda also points to nothing in the record that places in dispute the system actuary's explanation that the 1992 change affects only the timing of the County's payments to the system to cover administrative expenses, not its obligation to make payments sufficient to cover those expenses. By the same token, he does not dispute either the averment of the retirement system's fiscal officer that, since 1992, the system "has always paid all of its pension obligations," or any of the following averments of the retirement system actuary:

The [retirement system] is a defined benefit plan .... The Plan does not create or maintain individual accounts for its participants.... The County, as the employer sponsoring a defined benefit plan, is obligated to pay whatever is necessary to assure all benefits are paid in full as they become due.
The [present] system of contribution payments poses no threat whatsoever to the timely payment of benefits to participants and beneficiaries, now or in the foreseeable future. To my knowledge, the [retirement system] has never failed to make full and timely benefit payments to all eligible participants and beneficiaries.
[O]ver time Milwaukee County indirectly pays all of the investment and administrative expenses of the [retirement system] in a manner similar to the way in which a borrower pays the closing costs of his or her mortgage over time when those costs are folded into the amount of the loan instead of being paid directly at the time of closing.

¶ 17. We thus reject Bilda's taking claim grounded on the 1992 amendment. Bilda also alleged in his complaint, and seems to argue on appeal, that the payment of investment management expenses, both before and after 1992, by the Employes' Retirement System fund was also illegal and unconstitutional. The income the fund receives on its investments is generally net of fees charged by investment managers, and, thus, Bilda contends the fund is "paying" these expenses because the income it receives is less than if the County directly paid the investment management fees. The system's actuary averred in this regard that, "while [the retirement system] initially pays its investment expenses (the fees paid to investment bankers and money managers for investing and managing its assets), the net investment income is one of the factors which determine the amount of Milwaukee County's annual contribution to the [system] .... If Milwaukee County paid the investment expenses directly, the amount of its annual contribution would decrease ...." Thus, our conclusion that the method by which the retirement system's administrative and operational costs have been paid since 1992 is neither illegal nor unconstitutional governs the investment expense issue as well.

¶ 18. In sum, we reject Hilda's contention that the County must continue to be bound by the requirement in 1937 Wis. Laws, ch. 201, that it annually pay into the retirement system's "Expense Fund" a sufficient "amount of money which shall be deemed necessary to be paid into the expense fund during the ensuing year to provide for the expense of operation of the retirement system." Id., § 8(5). Rather, the legislature has empowered the County "to make any changes in [the retirement system] which ... may be deemed necessary or desirable for the continued operation of [the system]," provided participants' rights and benefits are neither "diminished" nor "impaired" by the change. 1965 Wis. Laws, ch. 405, § 2. The County changed the way in which it pays for the expenses of administering its retirement system in 1992, but nothing in the record establishes or places in dispute that the change operated "to diminish or impair the annuities, benefits, or other rights of any person who is a member" of the retirement system. See id. Whether it may he said that Bilda possesses no property interest in the method by which the County pays for the costs of administering its retirement system, or whether it is more proper to say that the 1992 change did not result in a taking of Bilda's vested property interests, the result is the same: there is no violation of Article I, § 13 of the Wisconsin Constitution.

¶ 19. We conclude the trial court did not err in granting the County summary judgment and dismissing Bilda's complaint.

CONCLUSION

¶ 20. For the reasons discussed above, we affirm the appealed judgment. We also deny all post-briefing motions.

By the Court. — Judgment affirmed.

       We refer to the plaintiffs-appellants as Bilda and to the defendants-respondents, collectively, as the County.
      We also note that, prior to the 1999-2000 version, the Wisconsin Statutes generally referred to one who works for another as an "employe," rather than an "employee." In a Revisor's Correction Bill that became 1999 Wis. Act 185, the term "employee" was adopted to replace "employe" wherever it appeared in the statutes, although the legislature also decreed that "any person may use either spelling... for any official purpose." See id., § 193. Unlike the spell-checker on this court's word-processing program, many dictionaries recognize "employe" as a proper alternative spelling. See, e.g., WebsteR's ThiRD New INTERNATIONAL DictionaRY 743 (2002). The Milwaukee County ordinance governing the pension and retirement system for county workers continues to utilize the older statutory spelling. We will also do so when quoting from the older legislative enactments and the ordinance, and when referring to the pension board by its full title. Otherwise, we will adopt the spelling now utilized in the statutes.

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

       The actuary for the Milwaukee County Employe Retirement System averred in an affidavit as follows:
      For many years, the County has paid for some of the administrative expenses of the [system] as part of the annual contribution it makes to assure the payment of benefits. Thus, the [system] makes payments for its own operation, and the County makes contribution payments at a level which, over time and with net investment income, -will pay for both benefits and those administrative expenses. In effect, the [system] is the paymaster for its administrative expenses, and the County reimburses those payments through its annual contributions.
      The actuary further explained in the affidavit that "[w]hen the contribution payment is at variance with actual needs, that surplus or shortfall is amortized over five (5) years," and that "[i]f the administrative expenses had been paid directly by the County, the annual contribution payment simply would have been less." In a subsequent affidavit, the actuary clarifies that "it is possible that in any given year Milwaukee County's annual contribution will not include, in that year, payment for all of the administrative expenses which the [system] incurred in the previous year .... However,... over time Milwaukee County indirectly pays all of the administrative expenses of [the system]."

       The County also argues that Bilda's 2003 procedural challenge to the 1992 ordinance amendment comes eight years too late, citing Wis. Stat. § 889.04, which provides that, after three years, the publication of an ordinance "shall he conclusive proof of the regularity of the adoption ... of the ordinance." Because we conclude the County complied with 1965 Wis. Laws, ch. 405, we have no need to address the timing of Bilda's procedural challenge.

        See, e.g., Wisconsin Retired Teachers Ass'n, Inc. v. Employe Trust Funds Bd., 207 Wis. 2d 1, 25, 558 N.W.2d 83 (1997) ("[T]he plaintiff annuitants have a property right in the investment earnings .. . [which] includes the right to have annuity reserve surpluses distributed in a manner consistent with [the statute]"; the diversion of retirement system funds to reimburse state coffers for certain supplemental benefits paid to some annuitants "take[s] the plaintiffs' property rights for a public purpose and without just compensation."); Association of State Prosecutors v. Milwaukee County, 199 Wis. 2d 549, 560, 563, 544 N.W.2d 888 (1996) (concluding that "vested County Plan beneficiaries have property rights in their retirement fund," notwithstanding that it is a "defined benefit plan"; that these are "protectable property interests in the integrity and security of their retirement fund"; and that the state's attempt to transfer money from the county retirement system to the state system "deprives the beneficiaries of this protectable interest" in violation of the federal constitutional right to due process); State Teachers' Ret. Bd. v. Giessel, 12 Wis. 2d 5, 9-10, 106 N.W.2d 301 (1960) ("[T]eachers have ... a vested right in the state teachers' retirement system," and the "right includes the proper use of the earnings .... [T]he legislature and the plaintiff board are not free to spend or appropriate the earnings of the fund except in a manner authorized by statute ....").

       The governing statute in Lightbourn, Wis. Stat. § 40.19(1), permits the state to "amend or repeal" statutes governing the state retirement system, provided that "[r]ights exercised and benefits accrued to an employee under this chapter for service rendered shall be due as a contractual right and shall not be abrogated by any subsequent legislative act." See Wisconsin Prof'l Police Ass'n, Inc. v. Lightbourn, 2001 WI 59, ¶¶ 108-10, 243 Wis. 2d 512, 627 N.W.2d 807. Similarly, the "home rule" legislation, 1965 Wis. Laws, ch. 405, empowers the County, "by county ordinance, to make any changes in such retirement system which hereafter may be deemed necessary or desirable for the continued operation of such retirement system, but no such change shall operate to diminish or impair the annuities, benefits, or other rights of any person who is a member of such retirement system prior to the effective date of any such change." 1965 Wis. Laws, ch. 405, § 2.

       Although we have treated them collectively as "the County," both Milwaukee County and the Milwaukee County Employes' Retirement System Pension Board were named as separate defendants and they filed separate response briefs in this appeal. Each respondent also moved to strike portions of Bilda's reply brief on the grounds that Bilda first raised arguments in the reply brief that were either not made in the circuit court or in Bilda's opening brief, or both. Alternatively, the respondents requested leave to file sur-reply briefs, which they simultaneously tendered to the court, and they both asked that we impose sanctions requiring Bilda to pay the additional legal fees they incurred in responding to Bilda's allegedly improper arguments in the reply brief. Bilda responded, asking us to deny both motions and to sanction the respondents for making false statements and filing motions for an improper purpose that were not well-grounded in fact. We deny all of these motions and requests for sanctions. To the extent Bilda raised new issues in his reply brief, we have no need for sur-reply briefs to reject them. It is a well-established rule that we do not consider arguments raised for the first time in a reply brief. See Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502 (Ct. App. 1995). The County and the board could have moved to strike portions of Bilda's reply brief, indicating that if we were inclined to address Bilda's new arguments, we should grant the opportunity for a sur-reply, thus avoiding the effort and expense of actually preparing and tendering sur-reply briefs. We are content to leave where they lie the costs all three parties incurred in generating the largely unnecessary and unhelpful post-briefing submissions.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Molly K. Borreson, Petitioner-Respondent, v. Craig J. Yunto, Respondent-Appellant.
    Court of Appeals

      No. 2005AP190.

      Submitted on briefs August 10, 2005.

      Decided March 23, 2006.

    2006 WI App 63
    (Also reported in 713 N.W.2d 656.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Ginger L. Murray and Heather L. Curnutt of Lawton & Cates, S.C., Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Kenneth R. Sipsma and Erika L. Bierma of Sipsma, Hahn & Brophy, L.L.C., Madison.

      Before Dykman, Vergeront and Deininger, JJ.
   DYKMAN, J.

¶ 1. Craig Yunto appeals from an order rejecting his request for attorney fees and costs in his action to enforce a physical placement order. Yunto contends Wis. Stat. § 767.242(5)(b)l.b. (2003-04) mandates the award of attorney fees when a court finds that one has been unreasonably and intentionally denied periods of physical placement. Yunto further contends that his failure to show the amount of his attorney fees during the physical placement hearing does not bar an award of attorney fees. We agree and remand for the circuit court to order an award of attorney fees and costs in an amount the court determines to be reasonable.

Background

¶ 2. On December 18, 2003, the circuit court entered a physical placement order concerning Payton, the minor son of Molly Borreson and Craig Yunto. The order awarded primary placement of Payton to Borre-son and granted Yunto placement approximately every other weekend. On September 13, 2004, Yunto petitioned the court to enforce the placement order. Yunto averred that Borreson had kept Yunto from having placement of Payton for four consecutive weekends. At a November 4 hearing on the petition, Borreson testified that Yunto's ex-girlfriend told her that Yunto had exposed Payton to sexual activity. She stated she had denied Yunto placement because she believed he was under investigation for this behavior and other instances of sexual misconduct. The circuit court found Borreson in contempt of the placement order and subsequently issued an order enforcing the placement order.

¶ 3. Upon cross-examination of Borreson, Yunto moved to admit a copy of a bill detailing Yunto's attorney fees and costs that Yunto's attorney had faxed to Borreson's attorney. The court ruled that the bill was inadmissible because Borreson's personal knowledge of the letter was subject to attorney-client privilege. The court included the hill in the hearing record but refused to admit it in evidence.

¶ 4. At the conclusion of the hearing, Borreson objected to the award of attorney fees and costs because no record of such fees and costs was in evidence. The court denied the award of attorney fees and costs, then stated that, as "a way of... reaching] a fair result," it would modify its order of appointment of the guardian ad litem to require that Borreson pay all of the first fifteen hours of the guardian ad litem's fees for the enforcement proceedings.

¶ 5. The court issued a written order enforcing the placement order on November 24, which included a denial of Yunto's attorney fees and costs and Borreson's liability for guardian ad litem fees. Later that day, Yunto filed a motion to reconsider the court's order denying his request for attorney fees. Yunto appended an affidavit in support of his motion that included detailed billing records showing that from September 10 to November 23, Yunto incurred $7,386.00 in attorney fees and costs. The court denied Yunto's motion to reconsider. Yunto appeals from both the order denying attorney fees and the order denying his motion to reconsider.

Standard of Review

¶ 6. We review a circuit court's decision on a motion for reconsideration under the erroneous exercise of discretion standard. Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶ 6, 275 Wis. 2d 397, 685 N.W.2d 853. We apply the same standard of review to a circuit court's award of attorney fees and costs. Village of Shorewood v. Steinberg, 179 Wis. 2d 191, 204, 496 N.W.2d 57 (1993). A circuit court erroneously exercises its discretion when it fails to examine the relevant facts, applies the wrong legal standard, or does not employ a demonstrated rational process to reach a reasonable conclusion. Brown County v. Shannon R., 2005 WI 160, ¶ 37, 286 Wis. 2d 278, 706 N.W.2d 269. This case also concerns the interpretation of a statute, a question of law we review de novo. Village of Cross Plains v. Haanstad, 2006 WI 16, ¶ 9, 288 Wis. 2d 573, 709 N.W.2d 447 (WI Feb. 14, 2006) (No. 2004AP2232).

Discussion

¶ 7. Yunto contends that the circuit court erroneously exercised its discretion by denying his motion to reconsider the order rejecting his request for attorney fees. He asserts the trial court applied the wrong legal standard to its decision because it treated the award of attorney fees as a matter of discretion when Wis. Stat. § 767.242(5)(b)l.b. provides that the court must award attorney fees if it finds that the petitioner was unreasonably denied periods of physical placement. Borreson contends that the statute is ambiguous because it neither defines "attorney fees" nor "specifiies] that the award of attorney fees must go to the opposing counsel... or ... state that the attorney fees must be paid to the party bringing the enforcement action." Borreson asserts that, regardless, the circuit court's denial of the motion for reconsideration was not an erroneous exercise of its discretion because the court lacked a proper basis on which to make an award of attorney fees because no record of the fees was entered into evidence.

¶ 8. "[Statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). If our examination of the text of a statute "yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Id., ¶ 46 (citation omitted).

¶ 9. Wisconsin Stat. § 767.242(5)(b)l. provides that a judge or court commissioner "[s]hall.... [a]ward the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees" to a petitioner seeking enforcement of a placement order when the court finds the respondent "intentionally and unreasonably denied the petitioner" physical placement. The use of the word "shall" generally indicates that a provision is mandatory. See Mucek v. Nationwide Communications, Inc., 2002 WI App 60, ¶ 34, 252 Wis. 2d 426, 643 N.W.2d 98 (citation omitted) (" 'May' is generally construed as permissive and 'shall' is generally construed as mandatory, unless a different construction is demanded by the statute to carry out the clear intent of the legislature.").

¶ 10. Moreover, Wis. Stat. § 767.242(5)(b) lists such orders a judge or court commissioner "shall" issue, and those he or she "may" issue, indicating the legislature intended the former set to be mandatory and the latter to be permissive. See State v. Sprosty, 227 Wis. 2d 316, 324, 595 N.W.2d 692 (1999) (citation omitted) (when legislature uses the words 'shall' and 'may' in a particular statutory section, it is aware of the words' distinct meanings). Finally, in the particular case of attorney fee statutes, the state supreme court has held that "use of the term 'shall' denotes that attorney fee awards are mandatory." Standard Theatres, Inc. v. State, Dept. of Transp., Div. of Highways, 118 Wis. 2d 730, 739, 349 N.W.2d 661 (1984) (citing First Wisconsin Nat. Bank v. Nicolaou, 113 Wis. 2d 524, 536, 335 N.W.2d 390 (1983)). We therefore conclude that the use of "shall" indicates that the award of "a reasonable amount for the cost of maintaining an action under this section and for attorney fees" is mandatory.

¶ 11. Borreson's view that the statute does not indicate who is to be paid the attorney fees is mistaken. The statute plainly states that that the court "[s]hall... award the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees." Wis. Stat. § 767.242(5)(b)l. (emphasis added).

¶ 12. Borreson's next contends that the statute is ambiguous because it does not define "attorney fees." She suggests that another expense associated with a petition to enforce a placement order, guardian ad litem fees, may be included in the definition of "attorney fees." Borreson thus contends that the order mandating her payment of guardian ad litem fees met the statutory requirement that the court award attorney fees. We disagree.

¶ 13. In Bernier v. Bernier, 2006 WI App 2, 288 Wis. 2d 743, 709 N.W.2d 453 (WI Dec. 15, 2005) (No. 2004AP625), we recently addressed the award of guardian ad litem fees in actions to enforce physical placement orders. Concluding that courts were required to award guardian ad litem fees to prevailing parties in such proceedings, we treated guardian ad litem fees as part of "the cost of maintaining an action under Wis. Stat. § 767.242(5)(b)l.b." and not as part of "attorney fees" under that subdivision. Bernier, 709 N.W.2d 453, ¶ 17. We therefore conclude that "attorney fees" under § 767.242(5)(b)l.b. are the fees of the petitioner's attorney and do not include the fees of the guardian ad litem. Accordingly, we conclude that the circuit court's order that Borreson pay guardian ad litem fees does not satisfy the statute's requirement of an award of attorney fees.

¶ 14. Borreson further contends that the court did not erroneously exercise its discretion in denying the award of attorney fees and the motion to reconsider because the trial court did not receive a record of Yunto's attorney fees into evidence at the hearing, citing Stivarius v. DiVall, 117 Wis. 2d 62, 342 N.W.2d 782 (Ct. App. 1983), rev'd on other grounds, 121 Wis. 2d 145, 358 N.W.2d 530 (1984) (circuit court properly denied award of attorney fees when no record of attorney fees was introduced into evidence at postjudgment hearing). We again disagree.

¶ 15. Wisconsin Stat. § 767.242(5)(b) does not state that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court's determination of the substantive issues. See, e.g., Stan's Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 574 n.9, 538 N.W2.d 849 (Ct. App. 1995) ("[WJhere a statute authorizes reasonable attorney's fees, such determination is properly performed by the trial court after the jury has returned a verdict favorable to the claimant."). Moreover, the only directive the statute provides concerning when the court is to consider the question of attorney fees is that the award of such fees occur "at the conclusion of the hearing." Section 767.242(5)(b). This separation of the substantive issue to be decided and the attorney fee determination is appropriate, and suggests that evidence relevant to the attorney fee determination may be introduced at some point after the conclusion of the hearing.

¶ 16. Stivarius is readily distinguishable. Sti-varius followed our remand in Stivarius v. DiVall, No. 1981AP456, unpublished slip op. (Wis. Ct. App. Jan. 26, 1982), for the circuit court to conduct an evidentiary hearing to determine whether a claim that had been dismissed was frivolous, and, if so, to award a reasonable amount of attorney fees and costs under Wis. Stat. § 814.025 (1981-82). Stivarius, 117 Wis. 2d at 64-66. Thus, when the appellant failed to introduce evidence of attorney fees during the remanded proceedings even after we had explicitly directed that the amount of fees be determined, we affirmed the trial court's denial of attorney fees. We explained: "[A]ny inherent power in the trial court to determine reasonable fees was limited by the remand order to resolve the disputed fees through an evidentiary hearing." Id. at 67.

¶ 17. Finally, we note that Yunto made diligent efforts to bring documentation of his attorney fees to the court's attention in his motion to reconsider. He submitted the motion for reconsideration with an affidavit containing a detailed record of attorney fees and costs on the same day that the trial court issued its order denying the award of attorney fees.

¶ 18. In sum, because we conclude that the circuit court failed to order the award of attorney fees and costs as required by Wis. Stat. § 767.242(5)(b)l.b. and failed to consider evidence of those fees submitted after Yunto had prevailed on his petition, we conclude the court's denial of Yunto's motion for reconsideration was an erroneous exercise of its discretion. We also conclude that Yunto may request on remand that the circuit court award him reasonable attorney fees and costs incurred in pursuing this appeal. See Sheely v. Wisconsin Dept. of Health & Social Services, 150 Wis. 2d 320, 339-40, 442 N.W.2d 1 (1989) (concluding prevailing party was entitled to attorney fees under fee-shifting statute that did not explicitly provide for recovery of attorney fees incurred on appeal because party's pursuit of appeal was necessary to fulfill legislative intent of the statute); see also Bernier, 709 N.W.2d 453, ¶ 16 (purposes of Wis. Stat. § 767.242(5)(b)l.b. are to provide "a financial disincentive to custodial parents who interfere with the physical placement rights of the non-custodial parent" and "a more robust mechanism to enforce a parent's physical placement rights"). Accordingly, we reverse and remand with instructions to order an award of attorney fees in an amount the court determines to he reasonable.

By the Court. — Order reversed and cause remanded with directions.

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

       A county social worker and a Beaver Dam police department investigator both testified that each had separately investigated these allegations and determined that they were unsubstantiated.

       Wis. Stat. § 767.242(5) provides in relevant part:
      Hearing; remedies, (a) A judge or circuit court commissioner shall hold a hearing on the petition no later than 30 days after the petition has been served ....

        (b) If, at the conclusion of the hearing, the judge or circuit court commissioner finds that the respondent has intentionally and unreasonably denied the petitioner one or more periods of physical placement or that the respondent has intentionally and unreasonably interfered with one or more of the petitioner's periods of physical placement, the court or circuit court commissioner:
      1. Shall do all of the following:
      b. Award the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees.
      2. May do one or more of the following:
      a. ... issue an order specifying the times for the exercise of periods of physical placement.
      b. Find the respondent in contempt of court under ch. 785.
      c. Grant an injunction ordering the respondent to strictly comply with the judgment or order ....

       Wisconsin Stat. § 814.025 (1981-82) provided in pertinent part:
      Costs upon frivolous claims and counterclaims. (1) If an action ... is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.


author: FINE, J.

text:
    Mohns, Inc., Plaintiff-Appellant, v. TCF National Bank, Defendant-Respondent.

    Court of Appeals

      No. 2005AP705.

      Submitted on briefs March 7, 2006.

      Decided March 28, 2006.

    2006 WI App 65
    (Also reported in 714 N.W.2d 245.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Attorney James C. Ratzel of Ratzel & Associates L.L.C., of Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Attorney Michael J. Lund of Cooke & Franke, S.C., of Milwaukee.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review dismissed 6-13-06.

   FINE, J.

¶ 1. Mohns, Inc., appeals an order granting TCF National Bank's motion to vacate a default judgment, summary judgment granted to TCF after the vacatur, and an order denying Mohns's motion to reconsider. Mohns claims that the circuit court erroneously exercised its discretion when it vacated the default judgment. We agree, and reverse and remand with directions to reinstate the default judgment, and to hold a hearing under Wis. Stat. Rule 806.02(5), if TCF contests damages. See Carmain v. Affiliated Capital Corp., 2002 WI App 271, ¶ 30, 258 Wis. 2d 378, 393, 654 N.W.2d 265, 272 (defaulting party may appear at the prove-up hearing and "cross-examine the plaintiffs witnesses and present evidence to mitigate or be heard as to the diminution of damages"); Smith v. Golde, 224 Wis. 2d 518, 530, 592 N.W.2d 287, 293 (Ct. App. 1999) (upon entry of a default judgment, the circuit court may hold a hearing to determine damages).

I.

¶ 2. Mohns had a business checking account with TCF. In May of 2001, checks were stolen from Mohns. TCF cashed the checks and gave the money to an unknown party. In July of 2001, Mohns, both orally and in writing, told TCF about the stolen checks, and sought reimbursement. When TCF refused, Mohns hired a lawyer.

¶ 3. Between September of 2001 and October of 2002, Mohns's lawyers sent three letters to TCF's loss prevention department in Burr Ridge, Illinois, attempting to "resolv[e Mohns's] claim." In the final letter, Mohns's lawyer told TCF that if it did not respond to the letter within ten days, Mohns would sue. TCF did not respond to any of the letters.

¶ 4. Mohns sued on January 2, 2003, alleging that TCF's negligence "resulted in the unauthorized withdrawal of funds from the account of Mohns Inc. to unknown third-parties." On January 21, 2003, Mohns served an authenticated summons and complaint on a manager at a branch office in Milwaukee, Wisconsin. TCF does not contend that the service was defective.

¶ 5. TCF did not answer. Mohns moved for, and was granted, default judgment. The circuit court's May 2, 2003, order granting the default judgment awarded Mohns $21,738 in damages "[p]ursuant to [an] affidavit" from Mohns's lawyer, which listed damages of: $15,756.27 for the cashed checks, $3,569.02 in interest, $2,363.32 in attorney fees, and $50 in overdraft fees. The order also permitted Mohns to "seek[] additional damages as may be accrued herein." Judgment was entered on June 5, 2003.

¶ 6. On June 26, 2003, Mohns's lawyer sent a letter to TCF's loss prevention department in Burr Ridge, Illinois, telling it that a default judgment had been entered and that punitive damages and additional damages were still open, but that Mohns would settle the case for $21,738. TCF did not respond. On July 17, 2003, Mohns's lawyer sent a letter to TCF's national headquarters in Wayzata, Minnesota again telling TCF that a default judgment had been entered, outlining TCF's debt to Mohns, and indicating that Mohns would seek punitive damages.

¶ 7. On August 6, 2003, some three weeks after Mohns's lawyer sent the demand-letter to TCF's national headquarters, TCF moved to vacate the default judgment, alleging that its failure to file an answer was the result of "excusable neglect." See Wis. Stat. Rule 801.15(2)(a) ("When an act is required to be done at or within a specified time" the circuit court may not "enlarge" the period after the time has expired unless the moving party proves "excusable neglect."); see also Wis. Stat. Rule 806.07(l)(a). TCF claimed that it did not answer Mohns's complaint because it had moved its legal-processing department from Franklin Park, Illinois, to Willowbrook, Illinois, on January 20, 2003, the day before service of the summons and complaint on the branch manager in Milwaukee. TCF asserted that the branch manager mistakenly mailed the summons and complaint to the old address, and, because it contended that it did not have a record of ever having received Mohns's summons and complaint, "the legal documents were ... presumably] ... lost in transit when they were mistakenly sent to the former address."

¶ 8. The circuit court granted TCF's motion to vacate the default judgment, finding "excusable neglect":

It's troubling, outrageous, and it is amazing how big organizations can say, "Oh, it just got lost between our departments," but they don't give the same courtesy when it works the other way.
But that is neither here nor there and it is nothing against the individual. It's excusable neglect. There is [sic] meritorious defenses. The basis for my finding on excusable neglect is that it was very prompt — promptly brought before the court when counsel got involved.

The circuit court also awarded Mohns attorney fees and costs "through and including the date for the motion by TCF to reopen the judgment."

II.

¶ 9. A circuit court has wide discretion in determining whether to vacate a judgment based on excusable neglect. Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865, 867 (1977). Excusable neglect is " 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.'" Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727, 731 (1982) (quoted source omitted). It is not synonymous with carelessness or inattentiveness, and it is not sufficient that the failure to answer in a timely manner be unintentional and in that sense a mistake or inadvertent, " 'since nearly any pattern of conduct resulting in default could alternatively be cast as due to mistake or inadvertence or neglect.'" Martin v. Griffin, 117 Wis. 2d 438, 443, 344 N.W.2d 206, 209 (Ct. App. 1984) (quoted source omitted).

¶ 10. In determining whether the party seeking relief from a default judgment has proven excusable neglect, the circuit court should consider whether the moving party has acted promptly to remedy the default judgment, whether the default judgment imposes excessive damages, and whether vacatur of the judgment is necessary to prevent a miscarriage of justice. Dugenske, 80 Wis. 2d at 68-69, 257 N.W.2d at 867; see also Hansher v. Kaishian, 79 Wis. 2d 374, 389, 255 N.W.2d 564, 572 (1977) (burden of showing excusable neglect is on the party seeking relief from the judgment). The circuit court must also consider that the law favors the finality of judgments, and the reluctance to excuse neglect when too easy a standard for the vacatur of default judgments would reduce deterrence to litigation-delay. See Dugenske, 80 Wis. 2d at 70, 257 N.W.2d at 868.

¶ 11. Mohns claims that the circuit court erroneously exercised its discretion because it did not apply the "reasonably prudent person" standard to the facts of this case. We agree. As we have seen, the circuit court relied solely on the fact that TCF acted promptly once its lawyers "got involved": "The basis for my finding on excusable neglect is that it was very prompt — promptly brought before the court when counsel got involved." But what the lawyers did after TCF's default is, in the context of this case, largely immaterial. See Hansher, 79 Wis. 2d at 392, 255 N.W.2d at 574. The circuit court must consider later "prompt action combined with the reasons advanced by the dilatory party for the omission." Hedtcke, 109 Wis. 2d at 476, 326 N.W.2d at 734. The circuit court did not do so here.

¶ 12. As we have seen, TCF claimed that it did not answer Mohns's complaint because it and the summons were "lost in transit" when it changed offices. As the circuit court recognized, TCF is a substantial, sophisticated bank with, as TCF writes in its brief on appeal, "well-established procedures to ensure the orderly and timely handling of legal process." It has not demonstrated either why those procedures, if as efficacious as it implies, did not alert TCF that a suit was potentially imminent (as it was told by Mohns's many letters, which TCF does not deny receiving), or why those "well-established procedures" could not accommodate what the Record reflects was a routine move of an office, albeit alleged by TCF to be "a complicated procedure involving the transfer of many documents and equipment," not caused by some catastrophe. See Hollingsworth v. American Fin. Corp., 86 Wis. 2d 172, 185-186, 271 N.W.2d 872, 878 (1978) (confusion in forwarding papers from one office to another due to a business reorganization not excusable neglect); Dugenske, 80 Wis. 2d at 68-71, 257 N.W.2d at 867-869 (lawyer's misplacement of client's files while relocating law offices not excusable neglect). TCF has not demonstrated that its substantial delay in responding to Mohns's suit was the result of "excusable neglect." Accordingly, we reverse and remand with directions to reinstate the default judgment, and, if necessary, to hold a hearing under Wis. Stat. Rule 806.02(5).

By the Court. — Judgment and orders reversed and cause remanded with directions.

       The Honorable Thomas Cooper issued the order granting TCF National Bank's motion to vacate the default judgment. The Honorable M. Joseph Donald issued the order granting summary judgment to TCF and the order denying Mohns, Inc.'s motion for reconsideration.

       Wisconsin Stat. Rule 806.07(l)(a) provides:
      (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may reheve a party or legal representative from a judgment, order or stipulation for the following reasons:
      (a) Mistake, inadvertence, surprise, or excusable neglect.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David R. Kaster, Defendant-Appellant.

    Court of Appeals

      No. 2005AP1285.

      Submitted on briefs February 6, 2006.

      Decided March 28, 2006.

    2006 WI App 72
    (Also reported in 714 N.W.2d 238.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert R. Henak of Henak Law Office, S.C. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 8-31-06.

   CANE, C.J.

¶ 1. David Kaster appeals an order denying his postconviction motion. Kaster argues that this court's interpretation of Wis. Stat. § 948.095 on his direct appeal denied him the right to present a defense. Kaster also appeals his disorderly conduct conviction. We disagree with Kaster's arguments and affirm.

BACKGROUND

¶ 2. Raster was the head coach of the boys' and the girls' varsity swim teams for Ashwaubenon High School during the 1998-99 school year. The terms of Raster's employment for the season were embodied in separate contracts, one for his duties as the boys' team head coach and one for his duties as the girls' team head coach. In previous years, Raster and the school district entered into new contracts each year for his employment as coach.

¶ 3. In February 2001, Raster was charged with several crimes arising from allegations that he had sexual contact with four members of the girls' team. Two of the charges and subsequent convictions are relevant here. First, Raster was charged with sexual assault by a school instructional staff person, contrary to Wis. Stat. § 948.095(2). Second, Raster was charged with disorderly conduct, contrary to Wis. Stat. § 947.01. At trial, Raster argued he was not "school staff under § 948.095(2) at the time of the assault. Raster proposed a jury instruction interpreting "school staff," which instructed that he needed to be under contract at the time of the assault to be found guilty. The judge refused the instruction, and the jury convicted Raster.

¶ 4. In his direct appeal, Raster argued that the trial court erred when it failed to give his proposed jury instruction. We rejected Raster's argument, stating that the evidence at trial was sufficient to allow the jury to conclude that Raster was school staff. Raster did not challenge the disorderly conduct conviction on his direct appeal. Later, Raster filed a motion for postconviction relief pursuant to Wis. Stat. § 974.06, which the circuit court denied.

DISCUSSION

¶ 5. Raster now argues, given our interpretation of Wis. Stat. § 948.095 in his direct appeal, he was denied the right "to present a defense and to a jury verdict on all necessary elements" of the charged offense. Interpretation of a statute is a question of law that we review without deference. Agnes T. v. Milwaukee, 189 Wis. 2d 520, 525, 525 N.W.2d 268 (1995). Although the State argues that Raster is procedurally barred from making these arguments in another appeal, we choose to address Raster's assertions without determining whether the arguments are procedurally barred. See In re Trent N., 212 Wis. 2d 728, 735-36, 569 N.W.2d 719 (Ct. App. 1997).

¶ 6. In State v. Kaster, 2003 WI App 105, ¶ 10, 264 Wis. 2d 751, 663 N.W.2d 390, Raster argued that the trial court denied him a defense because it rejected his proposed instruction to the jury that it must find him to he under contract at the time of the assault to be considered school staff. Alternatively, he claimed any services he was providing at the time of the assault were voluntary, and volunteers did not fall under Wis. Stat. § 948.095. Id., ¶ 4. In sum, we rejected Kaster's arguments on the basis that his proposed reading of the statute was too narrow. Id., ¶ 16.

¶ 7. Here, Kaster argues that our interpretation of Wis. Stat. § 948.095 in Kaster requires that a defendant must actually be providing services at the time of the alleged sexual contact to be covered by the statute, which he contends is an additional element that we added. Kaster bases his proposition on the following statement in our opinion: "Finally, we conclude that the evidence at trial was sufficient to allow the jury to conclude that Kaster was providing services to the school or school board when he committed the ... assault." Id., ¶ 17. Therefore, Kaster asserts, he was "denied his right to present a defense on that element of the offense" because he "was not on notice of [our] interpretation of the statute at the time of the trial. .. ."

¶ 8. Because the statute put Kaster on notice that a conviction required that he be providing services at the time of the alleged sexual contact, we reject his argument. In Kaster, we addressed Kaster's contention that the statute did not cover him because he was not school staff. The foregoing quote that Kaster highlights did not create an additional element but instead provided a description of Kaster's relationship with the school for the purpose of analyzing whether Kaster was school staff. Id. Our goal was simply to further parse the definition of school staff and its application to Kaster. Thus, we reject Kaster's argument that he was denied the right to present a defense and that we should exercise our discretionary reversal authority under Wis. Stat. § 752.35.

¶ 9. Raster next argues that the evidence was legally insufficient to sustain the disorderly conduct charge. Wisconsin Stat; § 974.06(4), postconviction procedure, states:

All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

Raster has not demonstrated a "sufficient reason" under § 974.06(4) to overcome the fact that he failed to raise his challenge on direct appeal. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-84, 517 N.W.2d 157 (1994). Thus, Raster, is procedurally barred from raising the disorderly conduct conviction now.

By the Court.-Order affirmed.

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

       In pertinent part, Wis. Stat. § 948.095(2) states:
      Whoever has sexual contact or sexual intercourse vfith a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class D felony if all of the following apply:
      (a) The child is enrolled as a student in a school or a school district.
      (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
      School staff is defined in Wis. Stat. § 948.095(l)(b) as:
      any person who provides services to a school or a school board, including an employe of a school or a school board and a person who provides services to a school or a school board under a contract.


author: FINE, J. KESSLER, J.

text:
    In the Interest of Ruby Washington: City of Milwaukee, Petitioner-Respondent,  v. Ruby Washington, Respondent-Appellant.
    Court of Appeals

      No. 2005AP3141.

      Submitted on briefs March 7, 2006.

      Decided March 28, 2006.

    2006 WI App 99
    (Also reported in 716 N.W.2d 176.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of William J. Tyroler, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Stuart S. Mukamal, assistant city attorney.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review granted 6-14-06.

   FINE, J.

¶ 1. Ruby Washington appeals from the trial court's order directing that she be confined under Wis. Stat. § 252.07(9) for tuberculosis treatment. The only issue on appeal is where she should be confined. We affirm.

I.

¶ 2. The facts in this case are not disputed. Washington has pulmonary tuberculosis, which if not treated properly is not only dangerous to the infected person but also is dangerous to others, who can inhale the bacteria expelled by an infected person. And it does not take much to get tuberculosis bacteria into the air from which others can be infected. The City of Milwaukee tuberculosis program manager testified at a hearing before the trial court that tuberculosis can get into the air by an infected person "[ploughing, laughing, singing, talking, sneezing." Although a person suffering from pulmonary tuberculosis who is on appropriate drug-therapy may be non-communicable, that person can become communicable unless he or she completes the course of treatment. Wisconsin Stat. § 252.07 sets out procedures designed to protect both the public and those afflicted with the disease.

¶ 3. Washington did not cooperate with attempts to help her overcome her pulmonary tuberculosis and to keep her from infecting others. She was living in a homeless shelter on June 17, 2005, when she was first diagnosed as having the disease. As recounted in an affidavit executed by a tuberculosis-control-chnic public-health nurse, Washington was started on medication for her tuberculosis on June 21, 2005, and was given bus tickets so she could go to the tuberculosis clinic and take her medication "under direct observation" of the clinic staff. This did not work, however, because Washington missed two appointments and "disappeared from public view."

¶ 4. On August 22, 2005, Washington was found at the Aurora Sinai Medical Center, where she had gone to give birth. When she threatened to leave the hospital despite her tuberculosis, she was kept at the hospital in inpatient confinement against her will until, several days later, she and the City of Milwaukee stipulated that she would stay at the medical center for at least one month or until she was no longer contagious, and that after her release she would continue a course of supervised treatment for some nine months to ensure that she was cured.

¶ 5. On September 27, 2005, the trial court issued an order permitting Washington's release from the hospital, "but only on the condition that she strictly comply" with City orders that she fulfill and complete her course of treatment, and that this compliance be assured by having public-health staff see Washington take her prescribed medications. The order also required that Washington live with her sister, at whose home Washington "shall continuously reside and remain available for contact at that address until such time as in the judgment of the City of Milwaukee Health Department, her treatment is complete and she is cured of the disease of tuberculosis." Further, the order recited that if Washington "fails to fully and completely comply with the provisions of this Order, she may be subject to imprisonment, to renewed isolation and inpatient confinement pursuant to Wis. Stat. §§ 252.07(8) and (9) and/or to such other and additional sanctions for contempt of court as this Court may determine."

¶ 6. Washington was released from Aurora Sinai Medical Center on September 27, 2005, and, on that very day, left her sister's home. Further, she did not comply with the required treatment-regimen. On September 29, 2005, Washington was arrested for violating the trial court's order, and, after being assessed at Aurora Sinai Medical Center, was taken to the Milwaukee County Criminal Justice Facility. On October 1, 2005, she was released from the Facility because of an apparent bureaucratic mix-up. The City found Washington on October 5, 2005, and she was again taken into custody.

¶ 7. The trial court held a hearing on October 5, 2005, and, on that day, issued the order from which Washington appeals. The order directed that Washington "be confined in the Milwaukee County Criminal Justice Facility" unless otherwise ordered, and directed that Washington "shall fully comply" with her treatment regimen. Uncontradicted testimony at the October 5 hearing established that the required treatment and observation would take "nine cumulative months" from October 5. If that were not done, the City's tuberculosis program manager told the trial court that both the public and Washington would suffer serious consequences:

[Washington's] personal consequences could include death, could include severe illness. She would again become incapacitated at some point, probably very weak and debiled, not feel very well at all. The consequences for the public would be transmission of tuberculosis to people.

The order also set April 7, 2006, for trial-court review of Washington's condition and circumstances.

¶ 8. As noted, Washington does not dispute either that she has pulmonary tuberculosis or that she must complete her course of treatment to get fully well and not be a danger to others in the community. She contended before the trial court, however, and argues on appeal, that she should not be at the criminal-justice facility, but, rather, at the hospital or some other non-jail-type facility, even if that required that she be guarded twenty-four hours a day. The trial court rejected that contention:

There [has been] non-compliance and the risk of the community is way too high to allow her to just walk out the door today. Now, [addressing Washington's trial lawyer], I have — I do not know where else I can place your client but in the jail at this point for confinement. ... [I]f you can find some other locked facility for your client that would agree to take her, the Court would be happy to order her placed somewhere else, and I'm sure the City would agree. The problem is that I need to have a locked facility where she's going to stay put.... With respect to the [suggestion] that I place a guard at the hospital and allow her to stay at the hospital for the remainder of her treatment^] I refuse to require tax payers to pay [for] 24 hour around the clock guard at her door to make sure she stays put. I don't think that's appropriate. Miss Washington was given an opportunity to receive treatment in the community and she failed to do that.

We agree.

II.

¶ 9. This appeal comes to us in two interconnected postures. First, an appeal from the trial court's order, in which the trial court specifically did not invoke its contempt power. Second, by virtue of an order issued by this district's motions judge on January 9, 2006, that nevertheless characterized the trial court's order as "at base, an appeal from a contempt order." See Wis. Ct. App. IOP VI(3)(c) (authority of the motions judge). The practical effect of the January 9, 2006, order is that it makes inapplicable the declaration in Wis. Stat. § 252.07(9)(e) that appeals from trial-court orders issued under § 252.07(9) "shall be heard within 30 days after the appeal is filed." Although appeals from contempt orders are one-judge appeals under Wis. Stat. § 752.31(2)(h), this appeal was immediately transformed into a three-judge appeal by this court's chief judge. See § 752.31(3). The January 9 order also directed that this appeal be expedited, which it has been. Irrespective of whether this appeal is seen as one from an order founded on § 252.07(9), or one based on the trial court's power to enter orders of contempt under Wis. Stat. ch. 785, the result is the same — the trial court's order is lawful.

¶ 10. This appeal presents only issues of law: the proper interpretation of statutes to facts that are uncontested. Thus, our review is de novo. See Rebernick v. Wausau Gen. Ins. Co., 2005 WI App 15, ¶ 5, 278 Wis. 2d 461, 466, 692 N.W.2d 348, 351, aff'd, 2006 WI 27, 289 Wis. 2d 324, 711 N.W.2d 621. We look at Wis. Stat. § 252.07(9) and Wis. Stat. ch. 785 in turn.

A. Wisconsin Stat. § 252.07(9).

¶ 11. Wisconsin Stat. § 252.07(9)(a) 1-3 is set out in full in footnote 2, and, when read together, empowers the trial court to order confined a person who either has "infectious tuberculosis" or "has noninfectious tuberculosis but is at high risk of developing infectious tuberculosis," and who "has failed to comply with the prescribed treatment regimen," if "all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists." Washington argues that under § 252.07(9)(a)3, she must be placed at a facility that is the least restrictive of her freedom. We disagree.

¶ 12. We apply statutes as they are written. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110, 123-124. As we have seen, Wis. Stat. § 252.07(9)(a)3 reads, as material: "That all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists." This subsection has two parts. Confinement may not be ordered unless:

(1) attempts at "voluntary compliance with treatment have been exhausted," and

(2) there is "no less restrictive alternative" to confinement.

As the City cogently points out, the section does not reference the nature of the place of confinement. Certainly, if the legislature intended to engraft a "least restrictive facility" dictate, it could have easily done so in § 252.07(9)(a)3 as it has elsewhere. See Wis. Stat. § 51.20(9)(b) ("Such recommendation shall include the level of inpatient facility which provides the least restrictive environment consistent with the needs of the individual.") (emphasis added); Wis. Stat. § 51.30(4)(b)5 ("to determine whether the person should be transferred to a less restrictive or more appropriate treatment modality or facility") (emphasis added); Wis. Stat. § 51.35(l)(d)l ("[T]he department may ... transfer any patient from a state treatment facility or other inpatient facility to an approved treatment facility which is less restrictive of the patient's personal freedom") (emphasis added); Wis. Stat. § 55.06(9)(a) ("Placement by the appropriate board or designated agency is subject to s. 46.279 and shall be made in the least restrictive environment consistent with the needs of the person to be placed and with the placement resources of the appropriate board specified under s. 55.02.") (emphasis added); Wis. Stat. § 938.33(a) ("[T]he report shall indicate that a less restrictive alternative than placement in a secured correctional facility, a secured child caring institution or a secured group home is not appropriate.") (emphasis added); Wis. Stat. § 938.355(1) ("[T]hat determination shall be prima facie evidence that a less restrictive alternative than placement in a secured correctional facility, a secured child caring institution, or a secured group home is not appropriate.") (emphasis added); Wis. Stat. § 938.357(4)(c)l ("If a juvenile is placed in a Type 2 secured correctional facility ... and it appears that a less restrictive placement would be appropriate for the juvenile, the department, after consulting with the child welfare agency ... may place the juvenile in a less restrictive placement.") (emphasis added). Indeed, as Washington points out, the California legislature has decreed that persons like her .may not be held "in correctional facilities." Cal. Health & Safety Code § 121358(a) ("Notwithstanding any other provision of law, individuals housed or detained through the tuberculosis control, housing, and detention program shall not reside in correctional facilities, and the funds available under that program with regard to those individuals shall not be disbursed to, or used by, correctional facilities. This section shall not be interpreted to prohibit the institutionalization of criminals with tuberculosis in correctional facilities."). Wisconsin, however, has not followed that course, and the proper respect we owe the legislature prevents us from doing so by judicial "legislation."

¶ 13. Further, Washington does not present any authority other than a one-sentence reference to a 1995 law review article to support her passing assertion that she has constitutional entitlement to hospital versus correctional-facility confinement. We will not address arguments that are not developed or briefed adequately. See Vesely v. Security First Nat'l Bank of Sheboygan Trust Dep't, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985). Nevertheless, this country has long recognized that the Constitution does not bar enforced quarantine. See Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380, 387 (1902).

¶ 14. As the trial court recognized, government spending is a zero-sum endeavor — money spent on giving Washington the type of confinement she prefers would, per force, have to be diverted from other more worthwhile societal endeavors, such as both helping persons who want but cannot afford medical treatment, and who will cooperate with that treatment. And, as the trial court pointed out, taxpayer-funded cisterns, from which all government expenditures flow, are not bottomless; taxpayers, too, are entitled to consideration so they can use more of their hard-earned money as they see fit. Moreover, although Washington cites D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239, 243 (1990), for the proposition that under Wis. Stat. § 55.06(9) (a) (1987-88) taxpayer cost was an impermissible consideration, the provision now unambiguously provides that taxpayer cost is a consideration: "Placement by the appropriate board or designated agency is subject to s. 46.279 and shall be made in the least restrictive environment consistent with the needs of the person to be placed and with the placement resources of the appropriate board specified under s. 55.02." Sec. 55.06(9)(a) (2003-04) (emphasis added). The change reflects legislative concerns similar to those expressed by the trial court and with which we agree.

¶ 15. As the trial court pointed out, Washington's jail-type confinement was necessitated by what she did. Moreover, taking to the next logical step her contention that she prefers being under a guard-enforced confinement in a hospital rather that in the Criminal Justice Facility, being under guard at the Pfister Hotel or some other luxury facility would be "less restrictive" than either a hospital or the justice facility. She is not entitled to choose the place of her confinement.

B. Wisconsin Stat. § 785.04.

¶ 16. Although the trial court specifically struck all references to contempt in the proposed order before it signed the order, we also address Washington's contention that confining her for more than six months is prohibited by Wis. Stat. § 785.04(l)(b).

¶ 17. Both parties and we agree that if the trial court's October 5, 2005, order was an order finding Washington in contempt, it was an order of remedial contempt, and that the applicable sanctions are limited by Wis. Stat. § 785.04(1), which provides:

Remedial sanction. A court may impose one or more of the following remedial sanctions:
(a) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.
(b) Imprisonment if the contempt of court is of a type included in s. 785.01 (1) (b), (bm), (c) or (d). The imprisonment may extend only so long as the person is committing the contempt of court or 6 months, whichever is the shorter period.
(c) A forfeiture not to exceed $2,000 for each day the contempt of court continues.
(d) An order designed to ensure compliance with a prior order of the court.
(e) A sanction other than the sanctions specified in pars, (a) to (d) if it expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

(Footnote added.)

¶ 18. As we have seen, the trial court's October 5, 2005, order directed that Washington "be confined" in the justice facility "until further order of this Court," and that although the trial court set review for April 7, 2006, everyone envisions that Washington's enforced treatment regimen will last some nine months. As we have also seen, Washington argues that this is three months longer than the maximum period permitted by Wis. Stat. § 785.04(l)(b). Although a trial court's contempt powers are circumscribed by Wis. Stat. ch. 785, Evans v. Luebke, 2003 WI App 207, ¶ 17, 267 Wis. 2d 596, 611, 671 N.W.2d 304, 313, its remedial powers— powers necessary to compel compliance with lawfully issued orders — are not as limited as Washington contends.

¶ 19. First, under Wis. Stat. § 785.04(l)(d) the trial court was empowered to fashion an order to "ensure compliance with a prior order," and the legislature properly left the scope of such an ensure-compliance order to the trial court's discretion, without micro-managing legislative directive. Second, and perhaps even more important, the expansive scope of the trial court's power to fashion an appropriate remedy is specifically recognized by § 785.04(1)(e), which, in haec verba, authorizes the trial court to customize a remedial order that does not fall within subsections "(a) to (d)." Here, the trial court fully explained why confinement for more than six months was necessary to ensure Washington's compliance with her treatment regimen; namely, that the six-month limitation would "be ineffectual to terminate" Washington's continuing failure to comply with its September 27, 2005, order, which directed, upon the parties' stipulation, Washington to voluntarily complete her course of treatment. And, contrary to Washington's contention that she cannot "purge" her contempt by using keys to freedom in her possession, all she need do is comply with the required course of treatment. See State ex rel. N.A. v. G.S., 156 Wis. 2d 338, 342, 456 N.W.2d 867, 869 (Ct. App. 1990) ("sanction must be purgeable through compliance"). She "purges" her contempt by complying with the treatment regimen for the medically required time. After that purge, she will no longer be confined. If, as she posits without support in the Record, she can never be assured of a cure, the remedy is not, of course, permitting her to roam our community with the real danger that she would make others very sick. In any event, that supposition is far from being ripe for either argument or decision. See U.S. Bank Nat'l Ass'n v. City of Milwaukee, 2003 WI App 220, ¶ 17, 267 Wis. 2d 718, 737, 672 N.W.2d 492, 500 (" 'Grotesque or fanciful situations, such as those supposed, will have to be dealt with when they arise.'") (quoting Gaines v. City of New York, 109 N.E. 594, 596 (N.Y. 1915) (Cardozo, J.)).

III.

¶ 20. In sum, the trial court's order of October 5, 2005, was lawful, whether considered under Wis. Stat. § 252.07(9) or under Wis. Stat. § 785.04(1). Accordingly, we affirm.

By the Court. — Order affirmed.

KESSLER, J.

¶ 21. (concurring in part, dissenting in part). Because I agree with the Majority's conclusion that under the circumstances of this case Washington was properly confined, I concur in the result the Majority reaches in Part II.A. of its opinion. I write separately to clarify what I understand is permitted by Wis. Stat. §§ 252.07(8) and (9) in the context of depriving a person of her liberty. I dissent from Part II.B. of the Majority opinion because I do not agree that this case involved a finding" of contempt under Wis. Stat. ch. 785, and I therefore believe that we should not be addressing that issue. I also disagree with the Majority's conclusion that the contempt statutes provide a basis for jailing a person confined for treatment under the authority of § 252.07(9).

I. Public health confinement

¶ 22. Wisconsin Stat. §§ 252.07(8) and (9) set out the scheme that gives public health departments the authority to compel persons with contagious tuberculosis to accept treatment for the disease. If the infected person refuses to comply with treatment, the person may be confined and treatment compelled until the person is cured. Confinement may be enforced under the terms of § 252.07(9) (a) when the health department establishes all of the following: (1) the person has infectious tuberculosis; (2) the person has failed to follow the treatment regimen; (3) other means of compelling treatment have been exhausted and no less restrictive alternative exists; and (4) the infected person poses an imminent and substantial threat to herself or the health of the general public. Id. I agree with the Majority that "no less restrictive alternative" in § 252.07(9)(a)3. refers to the method of providing treatment, not to the location of the confinement. See Majority op., ¶ 12.

¶ 23. Wisconsin Stat. § 252.07(5) authorizes home isolation to provide treatment for the infected person and to reduce the public's exposure to the disease. That alternative was initially ordered here, but Washington refused to comply. The existence of the elements required by Wis. Stat. § 252.07(9)(a) to permit confinement to effect treatment were not disputed. The question before the court was only where the confinement for treatment would occur. The Majority's emphasis on the legislature's failure to describe the place of confinement by a "least restrictive" standard might be incorrectly understood to imply that a correctional facility is always an acceptable alternative. See Majority op., ¶¶ 12-13.1 write to clarify why I believe such a reading would be an incorrect interpretation of the statutes and of the Majority opinion.

¶ 24. When a trial court finds under Wis. Stat. § 252.07(9)(c) that confinement is the least restrictive method necessary to ensure treatment, it has both the discretion to consider alternative places of confinement and the obligation every six months to review the continuing necessity of confinement. Here, the trial court was presented with only two confinement location alternatives: a twenty-four hour guard for Washington in a hospital room, or medication delivered to Washington in a jail cell. The trial court appropriately considered all of the options presented. It also stated that it was open to other suggestions. No other suggestions appear in the record. With only two alternatives, and no detailed cost analysis, it was not unreasonable for the court to conclude that jail was a more cost-effective location to confine Washington for treatment.

II. Contempt confinement

¶ 25. Having concluded that the trial court had the authority to confine Washington for treatment under Wis. Stat. § 252.07(9), the Majority proceeds to decide the case on the alternative basis of statutory contempt of court under Wis. Stat. ch. 785. I disagree with the decision to address this issue, because, as this court recognized in State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W2d 514 (Ct. App. 1989), cases should be decided on the "narrowest possible ground." In addition, I disagree with the Majority's conclusion because it adds to the statutory tuberculosis treatment program a remedy that is not only unnecessary on the facts of this case, but is also an alternative that the legislature could have easily included in treatment program but did not.

¶ 26. The trial court made clear that it was not conducting a contempt proceeding. As the Majority observes, the trial court struck all references to contempt before signing the order on which this appeal is based. See Majority Op., ¶ 16. Because the order appealed from was not based on a finding of contempt, we should not decide whether the trial court could have ordered Washington confined on that basis.

¶ 27. The fact that in a preliminary order this court erroneously described this case as "at base, an appeal from a contempt order," see Majority Op., ¶ 9, does not mean that we should address a legal issue on appeal that was never a part of the order appealed from. The order appealed from is no more nor less than an order pursuant to Wis. Stat. § 252.07(9) confining a person infected with contagious tuberculosis to a facility for treatment. The power of the court to enter that order is the only issue we should address.

¶ 28. Furthermore, I disagree with the Majority's conclusion in Part II.B., see ¶¶ 16-19, that Wis. Stat. §§ 785.03 and 785.04, governing imprisonment for contempt, are available as an alternate basis for confining a person for treatment of tuberculosis. The Majority discusses the definitions of sanctions under § 785.04. It does not discuss the alternative procedures in § 785.03 that are required to impose those sanctions. In view of the significant powers provided to the trial court in Wis. Stat. § 252.07, a close review of the process set out by the legislature by which a trial court may impose contempt sanctions compels the conclusion that contempt is not an appropriate alternative vehicle to order the tuberculosis treatment because the civil liberties safeguards connected with compelled treatment are not a part of contempt punishment.

¶ 29. The trial court could not have ordered imprisonment as a remedial sanction for contempt under Wis. Stat. § 785.03(l)(a) because Washington cannot rid herself of the contempt (i.e., not taking her medicine) by terminating the offending conduct (i.e., taking her medicine) and thus gain release from imprisonment. If the Majority were correct in applying Wis. Stat. ch. 785 to this case, Washington would have to be released from the correctional facility as soon as she began taking her medicine. Wisconsin Stat. § 785.04(1)(b) permits imprisonment for "only so long as the person is committing the contempt of court...." Obviously, that would be an absurd result when long-term tuberculosis treatment is needed. One suspects the inapplicability of contempt proceedings to tuberculosis treatment was not lost on the legislature when it crafted the more detailed and specific treatment enforcement program of Wis. Stat. § 252.07(9).

¶ 30. Other provisions in Wis. Stat. ch. 785 likewise fail to fit the situation here. This was not a punitive sanction contempt proceeding under Wis. Stat. § 785.03(l)(b) because it was neither referred to the district attorney for prosecution nor separately prosecuted. This was not a summary procedure under § 785.03(2) because it did not involve action committed in the presence of the trial court.

¶ 31. Had the legislature wished to provide contempt under Wis. Stat. § 785.04 as an alternative means of compelling tuberculosis treatment, it could easily have done so. It did not. Wisconsin Stat. § 252.07(9) makes no reference to the contempt statutes. The legislature, instead, developed an elaborate and detailed system to protect the public from, provide treatment for, and protect the civil liberties of, individuals with contagious tuberculosis. The legislature has concluded that the statutory system of regulation, and enforcement, provides adequate tools to protect the public and to treat the infected. The key to release from confinement under § 252.07(9) is becoming tuberculosis-free. The key to release from imprisonment for contempt, however, is either to complete the specific time imposed as punishment or to end the conduct that resulted in the contempt finding. Neither method of contempt release is available to a person infected with tuberculosis. This court should not engraft an entire additional body of contempt law onto a carefully designed treatment system solely because of an improvident statement earlier made by this court before it had the opportunity to review the complete record.

¶ 32. Because the parameters of Wis. Stat. ch. 785 add nothing to the tuberculosis treatment sanctions provided by the legislature, and because ch. 785 was not incorporated by the legislature in Wis. Stat. §§ 252.07(8) and (9), I respectfully dissent from Part II.B. of the Majority opinion.

       The trial court's order was entered on October 5, 2005. Ruby Washington's notice of appeal was filed on December 21, 2005.

       Wisconsin Stat. § 252.07(8), referenced by the trial court's order of September 27, 2005, provides:
      (a) The department or a local health officer may order the confinement to a facility of an individual who has a confirmed diagnosis of infectious tuberculosis or suspect tuberculosis if all of the following conditions are met:

        1. The department or local health officer notifies a court in writing of the confinement.'
      2. The department or local health officer provides to the court a written statement from a physician that the individual has infectious tuberculosis or suspect tuberculosis.
      3. The department or local health officer provides to the court evidence that the individual has refused to follow a prescribed treatment regimen or, in the case of an individual with suspect tuberculosis, has refused to undergo a medical examination to confirm whether the individual has infectious tuberculosis.
      4. In the case of an individual with a confirmed diagnosis of infectious tuberculosis, the department or local health officer determines that the individual poses an imminent and substantial threat to himself or herself or to the public health. The department or local health officer shall provide to the court a written statement of that determination.
      (b) If the department or local health officer orders the confinement of an individual under this subsection, a law enforcement officer, or other person authorized by the local public health officer, shall transport the individual, if necessary, to a facility that the department or local health officer determines will meet the individual's need for medical evaluation, isolation and treatment.
      (c) No individual may be confined under this subsection for more than 72 hours, excluding Saturdays, Sundays and legal holidays, without a court hearing under sub. (9) to determine whether the confinement should continue.
      Section 252.07(9), referenced by the trial court's order of September 27, 2005, provides:
      (a) The department or a local health officer may petition any court for a hearing to determine whether an individual with infectious or suspect tuberculosis should be confined for longer than 72 hours in a facility where proper care and treatment will be provided and spread of the disease will be prevented. The department or local health officer shall include in the petition documentation that demonstrates all of the following:

        1. That the individual named in the petition has infectious tuberculosis; that the individual has noninfectious tuberculosis but is at high risk of developing infectious tuberculosis; or that the individual has suspect tuberculosis.
      2. That the individual has failed to comply with the prescribed treatment regimen or with any rules promulgated by the department under sub. (11); or that the disease is resistant to the medication prescribed to the individual.
      3. That all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists; or that no other medication to treat the resistant disease is available.
      4. That the individual poses an imminent and substantial threat to himself or herself or to the public health.
      (b) The department or local health officer shall give the individual written notice of a hearing at least 48 hours before a scheduled hearing is to be held. Notice of the hearing shall include all of the following information:
      1. The date, time and place of the hearing.
      2. The grounds, and underlying facts, upon which confinement of the individual is being sought.
      3. An explanation of the individual's rights specified under par. (d).
      4. The proposed actions to be taken and the reasons for each action.
      (c) If the court orders confinement of an individual under this subsection, the individual shall remain confined until the department or local health officer, with the concurrence of a treating physician, determines that treatment is complete or that the individual is no longer a substantial threat to himself or herself or to the public health. If the individual is to be confined for more than 6 months, the court shall review the confinement every 6 months.
      (d) An individual who is the subject of a petition for a hearing under this subsection has the right to appear at the hearing, the right to present evidence and cross-examine witnesses and the right to be represented by adversary counsel. At the time of the filing of the petition the court shall assure that the individual who is the subject of the petition is represented by adversary counsel. If the individual claims or appears to be indigent, the court shall refer the individual to the authority for indigency determinations specified under s. 977.07 (1). If the individual is a child, the court shall refer that child to the state public defender who shall appoint counsel for the child without a determination of indigency, as provided in s. 48.23 (4). Unless good cause is shown, a hearing under this subsection may be conducted by telephone or five audiovisual means, if available.
      (e) An order issued by the court under this subsection may be appealed as a matter of right. An appeal shall he heard within 30 days after the appeal is filed. An appeal does not stay the order.

       Washington explains: "Given the accelerated processing of this appeal, the constitutional grounding of Ms. Washington's argument will not be developed more fully." As we have seen, the trial court's order from which this appeal is taken was entered on October 5, 2005, and Washington's notice of appeal was filed on December 21, 2005. Her appellate brief was filed with this court on January 26, 2006.

       Wisconsin Stat. § 785.01(1), as material to Wis. Stat. § 785.04(l)(b), provides: " 'Contempt of court' means intentional: ... (b) Disobedience, resistance or obstruction of the authority, process or order of a court."