author: DEININGER, J.

text:
    Douglas Scott Geen, Petitioner-Respondent, v. Labor and Industry Review Commission, Respondent, Stoughton Trailers, Inc., Respondent-Appellant.

    Court of Appeals

      No. 01-2713.

      Submitted on briefs March 14, 2002.

    Decided October 10, 2002.

    2002 WI App 269
    (Also reported in 654 N.W.2d 1.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Amy O. Bruchs and Christine Cooney Mansour of Michael Best & Friedrich LLP, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief oí Brett C. Petranech of Kelly & Petranech LLP, Madison.

      Before Vergeront, EJ., Roggensack and Deininger, JJ.

       Petition to review denied 1-21-03.

   DEININGER, J.

¶ 1. Stoughton Trailers, Inc. appeals a circuit court order which reversed a determination by the Labor and Industry Review Commission that Stoughton did not discriminate against its employee, Douglas Geen. Stoughton terminated Geen's employment following a series of absences, the last two of which were disability-related. Stoughton claims the commission correctly determined, first, that Stoughton did not terminate Geen because of his disability; and second, that even if Stoughton did so, it had first attempted to reasonably accommodate Geen's disability.

¶ 2. We conclude the commission did not resolve the issue of whether Stoughton terminated Geen because of his disability, and further, the commission failed to consider applicable law (the federal Family and Medical Leave Act) in determining whether Stoughton reasonably accommodated Geen's disability. Accordingly, we modify the circuit court's order and direct that the matter be remanded to the commission for further proceedings consistent with this opinion.

BACKGROUND

¶ 3. Stoughton, a manufacturer of semi-trailers, has a "no fault" attendance policy. The policy mandates termination of any employee who accumulates six "occurrences," defined as any absence, early departure, or tardiness occurring on a scheduled workday. The policy excepts certain absences from being counted as "occurrences," including "[a]bsences meeting State and Federal Family and Medical Leave Laws."

¶ 4. Geen worked as an assembler at Stoughton. By early December 1996, Geen had accumulated 4.5 occurrences, none of which were disability-related. From mid-December 1996 through early January 1997, Geen was absent from work due to migraine headaches. During his absence, Stoughton sent Geen a letter that stated in part:

If you would like this medical leave to be considered as a family/medical leave, you must complete the attached Department of Labor Certification form and return it to the Stoughton Trailers Human Resources Department no later than 15 days from the date of this letter.
If approved, you will not receive an occurrence for the portion of your leave that falls under the family/medical leave law.

¶ 5. The letter enclosed a certification form issued by the U.S. Department of Labor pursuant to the "Family and Medical Leave Act of 1993" (FMLA), a federal act intended, among other things, "to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(2). As summarized in the letter sent to Geen, federal FMLA regulations require employers to allow employees at least fifteen calendar days to provide medical certification to support FMLA leave, starting from the date of the employer's request for medical certification. 29 C.F.R. § 825.305(b).

¶ 6. Upon returning to work in early January 1997, Geen gave Stoughton copies of several prescriptions as well as a note from his doctor stating that Geen had been treated for headaches and that he could return to work. However, Geen did not return the FMLA certification form. Under Stoughton's employment policy, if an employee verifies that an absence was illness-related but fails to return the FMLA certification form, Stoughton counts the absence as only one "occurrence," regardless of its actual length. Thus, Stoughton assessed Geen with one "occurrence" for his multiple-week absence, bringing his total to 5.5 occurrences.

¶ 7. Geen again suffered from migraine headaches from Friday, January 24, 1997 through Tuesday, January 28,1997, missing a total of three workdays. On the morning of each workday, Geen telephoned Stough-ton and reported that he could not work due to migraine headaches or doctor appointments related to these headaches. Upon his return to work on January 29, 1997, Geen informed Stoughton's human resources administrator that he needed medical leave for the absences related to his migraine headaches. The administrator responded by handing Geen a letter containing the same request for FMLA certification quoted above (see ¶ 4), as well as another FMLA certification form.

¶ 8. Over the next two days, Geen visited his doctor twice and provided Stoughton with doctor's notes stating that he was being evaluated for migraines, that he was unable to work for two days of his three-day absence, and that he could return to work without restrictions. Geen did not return the FMLA certification form, however. On January 31, 1997, Stoughton terminated Geen on the grounds that his medical documentation did not excuse him for one of the days of his late-January absence, causing his "occurrence" total to increase to 6.5, thereby exceeding the 6.0 occurrence maximum.

¶ 9. Geen protested, claiming that his doctor had stated that, due to the difficulty of evaluating Geen's headaches and the press of business, he would be unable to provide additional documentation for at least a week. Stoughton responded by informing Geen that he could appeal his termination to Stoughton's Attendance Review Board by submitting a letter and any medical documentation to the board within three working days from his termination date. Geen timely submitted a letter explaining that he was being evaluated by a doctor for migraine headaches; however, he did not supply any medical documentation or the FMLA certification form. The board rejected Geen's appeal.

¶ 10. Geen subsequently filed a complaint with the Department of Workforce Development, Equal Rights Division, alleging that Stoughton had discriminated against him by terminating his employment because of his disability and failing to reasonably accommodate his disability. An administrative law judge ruled that: (1) Geen had a disability as defined under Wisconsin law; (2) Stoughton terminated Geen's employment "in part because of that disability"; and (3) Stoughton failed to reasonably accommodate his disability. The judge ordered Stoughton to reinstate Geen and to pay his back wages, costs, and attorney fees.

¶ 11. Stoughton appealed to the Labor and Industry Review Commission. The commission said in its decision that it was "reluctant to hold that the termination was 'because of Geen's disability" because he had already accumulated 4.5 "occurrences" prior to his disability-related absences. Although it deemed whether Stoughton had fired Geen "because of' his disability a "serious question," the commission declined to answer it in light of its conclusion that Stoughton had, in any event, reasonably accommodated Geen's disability by providing Geen "with the opportunity to avoid being assessed 'occurrences' for his disability-caused periods of absence by filling out FMLA leave paperwork."

¶ 12. Consistent with this analysis, the commission arrived at the following Conclusions of Law:

3. Complainant [Geen] is an individual with a disability within the meaning of Wis. Stat. § 111.32(8).
4. Complainant's disability (migraine headaches) was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment with Respondent within the meaning of Wis. Stat. § 111.34(2)(a).
5. Respondent did not refuse to reasonably accommodate Complainant's disability within the meaning of Wis. Stat. § 111.34(l)(a).
6. Respondent did not discriminate against Corn-plainant because of disability within the meaning of Wis. Stat. § 111.34 when it terminated his employment.

¶ 13. Geen sought judicial review of the commission's decision and order in Dane County Circuit Court. The circuit court affirmed Conclusions of Law Nos. 3 and 4, but reversed Nos. 5 and 6. The court based its reversal on its conclusion that Stoughton failed to reasonably accommodate Geen's disability because it terminated Geen prior to the end of the fifteen-day FMLA certification period. The circuit court remanded the case to the commission "with directions to implement the ALJ order."

¶ 14. Stoughton appeals the circuit court's order, asking that we reverse it and reinstate the commission's order dismissing Geen's complaint. Geen responds, seeking to preserve the trial court's order. The commission has not participated in the appeal.

ANALYSIS

¶ 15. Geen's claim of discrimination on account of disability involves three essential elements of proof. See Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 598, 476 N.W.2d 707 (Ct. App. 1991). First, Geen must establish that he has a disability within the meaning of Wisconsin's fair employment law. Id. at 598. Second, Geen must prove that Stoughton terminated him because of his disability. Id. at 601. Third, if Geen proves these two elements, the burden then shifts to Stough-ton to justify the termination. Id. Stoughton may do so by proving that Geen's disability is "reasonably related" to his ability to do his job and that either: (1) Stough-ton reasonably accommodated Geen's disability prior to his termination; or (2) any accommodation would have posed a hardship on its business. Wis. Stat. § 111.34(1)(b), (2)(a).

¶ 16. The parties have narrowed the issues through various concessions. Stoughton does not dispute that Geen's migraine headaches are a disability under Wisconsin's fair employment law, and Geen acknowledges that his disability was reasonably related to his ability to do his job. Additionally, Stoughton does not contend that a reasonable accommodation of Geen's disability would have posed a hardship on its business. Thus, only two issues remain in dispute: (1) whether Stoughton terminated Geen's employment "because of' his disability; and if so, (2) whether Stoughton reasonably accommodated Geen's disability prior to his termination.

¶ 17. The parties briefed these issues to the commission. As we have noted, the commission equivocated on the first issue (stating that it was "reluctant" to hold that Stoughton terminated Geen because of his disability, but reaching no conclusion on the question). The commission decided the reasonable accommodation issue in Stoughton's favor. We independently review the commission's decision, not that of the circuit court. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶ 8, 240 Wis. 2d 209, 621 N.W.2d 633, review denied, 2001 WI 15, 241 Wis. 2d 210, 626 N.W.2d 808 (Wis. Feb. 7, 2001) (No. 99-2632). Because the commission viewed the reasonable accommodation determination as dis-positive, we address it first.

I

¶ 18. The commission's "reasonable accommodation" determination is a conclusion of law entitled to great weight deference from a reviewing court. See Target Stores v. LIRC, 217 Wis. 2d 1, 13, 576 N.W.2d 545 (Ct. App. 1998). Under the "great weight" standard, we must uphold the commission's decision unless it is unreasonable. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995). A decision is unreasonable if it directly contravenes the words of the statute, is clearly contrary to legislative intent, or lacks a rational basis. Id. at 662.

¶ 19. We conclude that the commission's reasonable accommodation determination in this case may have contravened the legislative intent behind both Wis. Stat. § 111.34(l)(b) and the FMLA. "[T]he purpose of reasonable accommodation [under Wis. Stat. § 111.34(l)(b)] is to enable employees to adequately undertake job-related responsibilities." Target Stores, 217 Wis. 2d at 17. Similarly, Congress enacted the federal Family and Medical Leave Act in 1993 to, among other things, "entitle employees to take reasonable leave for medical reasons . . . [and] to accomplish [this] purpose [] ... in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(2), (3). The commission's determination may contravene these purposes if it is read so as to suggest that an employer may be found to have reasonably accommodated an employee's disability notwithstanding what could be construed as the employer's violation of FMLA regulations.

¶ 20. The FMLA applies to private employers who employ at least fifty employees for each working day during at least twenty calendar workweeks per year. 29 C.F.R. § 825.104(a). The federal act applies to employees who: (1) have worked for an employer covered by the act for at least twelve months; (2) have worked for at least 1,250 hours during the twelve-month period immediately preceding the start of the leave; and (3) are employed at a worksite where at least fifty employees are employed by the employer within seventy-five miles of that worksite. 29 C.F.R. § 825.110(a).

¶ 21. A covered employee may take up to twelve weeks of leave for, among other reasons, a "serious health condition that makes the employee unable to perform the functions" of his or her job. 29 U.S.C. § 2612(a)(1)(D). One of the ways in which an employee may prove a "serious health condition" is to show that the employee was: (1) incapacitated (i.e., unable to work or perform other regular daily activities) due to the serious health condition for more than three consecutive calendar days; (2) seen at least once by a doctor; and (3) prescribed a course of medication, such as an antibiotic. 29 C.F.R. § 825.114(a)(2)(i), (B); § 825.114(b). If an employee qualifies an absence as being caused by a "serious health condition," the employer may not count the leave under a "no-fault" attendance policy. 29 C.F.R. § 825.220(c).

¶ 22. The FMLA appears to be applicable to the present facts, and Stoughton does not argue otherwise. Stoughton employs more than fifty full-time employees and Geen worked full-time at Stoughton for approximately eight years prior to the absences at issue. Geen's migraine headaches during his final absence seemingly qualify as a "serious health condition" under the FMLA because Geen was apparently incapacitated by migraine headaches from January 24, 1997 through January 28, 1997 (a period of more than three consecutive calendar days); he had at least one doctor appointment during this period; and he was prescribed medication for his pain. See 29 C.F.R. § 825.114(a)(2)(i), (B); § 825.114(b); see also § 825.114(c) (listing illnesses too insignificant for coverage under the FMLA, migraine headaches not being among them).

¶ 23. An employee who suffers from a serious health condition may obtain FMLA leave upon notice to the employer of the need for leave. When the need for leave is not foreseeable, as in the case of a sudden onset of an illness, the employee must give notice to the employer "as soon as practicable." 29 C.F.R. § 825.303(a). An employee may give notice verbally, and he or she "need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed." 29 C.F.R. § 825.303(b). Geen called Stoughton the morning of each workday during his final absence to report that he could not work due to migraine headaches, and he stated upon his return to work that he needed to take medical leave for his absences. See Brannon v. Oshkosh B'Gosh, Inc., 897 F. Supp. 1028, 1033, 1039 (M.D. Tenn. 1995) (Employee gave adequate notice of need for FMLA leave by informing employer of need for leave in telephone calls on morning of each absent workday and by informing supervisors of need for leave upon return to work.).

¶ 24. In response to an employee's request for leave, an employer may request that the employee provide medical certification of the need for leave. 29 C.F.R. § 825.305(a). The employer's request for medical certification typically must be in writing, and it must inform the employee of the consequences of a failure to provide certification. 29 C.F.R. § 825.305(a), (d). Of primary significance to the present dispute is the requirement that an employer must give an employee "at least fifteen calendar days after the employer's request" to provide the certification, and must allow additional time if "it is not practicable under the particular circumstances" for the employee to return the form within that time period "despite the employee's diligent, good faith efforts." 29 C.F.R. § 825.305(b). Moreover, if the employee provides inadequate certification, the employer must give the employee a "reasonable opportunity to cure" any deficiencies. 29 C.F.R. § 825.305(d). While neither the FMLA nor the regulations define a "reasonable opportunity to cure," courts have held that "termination is not an appropriate response for an inadequate certification." Marrero v. Camden County Bd. of Social Servs., 164 F. Supp. 2d 455, 466 (D.N.J. 2001).

¶ 25. Thus, the record suggests that Stoughton may not have fully complied with the FMLA following Geen's second disability-related absence, a circumstance the commission did not address in its decision. Stoughton fired Geen two days after giving him a letter requesting that he provide medical certification for his second disability-related absence. Geen's termination thus occurred well within the fifteen-day certification period applicable to the second disability-related absence. See Rager v. Dade Behring, Inc., 210 F.3d 776, 778 (7th Cir. 2000) (explaining that the FMLA requires employer to give employee at least fifteen calendar days in which to submit certification, and that the period starts when an employee receives notice that such documentation is required by a particular date and of consequences of failure to timely submit documentation). Although Stoughton may justifiably have viewed the doctor's notes Geen provided as inadequate for FMLA purposes, Stoughton was required under 29 C.F.R. § 825.305(d) to give Geen a "reasonable opportunity" to cure any inadequacies. By terminating Geen two days after first formally requesting medical certification for the second disability-related absence, Stough-ton arguably failed to provide Geen with the requisite opportunity to cure. See Marrero, 164 F. Supp. 2d at 466 ("termination is not an appropriate response for an inadequate certification").

¶ 26. Stoughton, however, advances several reasons why the record shows that it did not violate the FMLA. We are not persuaded. Stoughton first argues, citing Boyd v. State Farm Ins. Cos., 158 F.3d 326 (5th Cir. 1998), that Geen's submission of incomplete medical documentation waived any obligation on its part to allow the fifteen-day certification period to elapse before taking action on Geen's medical leave request. This argument, however, shares a flaw with the Boyd decision: neither Stoughton's argument nor Boyd address 29 C.F.R. § 825.305(d), which expressly requires an employer to "provide the employee a reasonable opportunity to cure" any certification that the employer deems inadequate. Although it is true that neither the FMLA nor the regulations define what constitutes a "reasonable opportunity to cure," it seems unlikely that the Department of Labor intends that an employee's opportunity to cure an inadequate certification should expire before the end of the mandatory fifteen-day period for submitting a certification in the first instance. We therefore do not view Boyd as controlling.

¶ 27. Stoughton next argues that its failure to provide Geen with the full fifteen-day certification period following his second disability-related absence is irrelevant because it allowed Geen the full fifteen days to return a certification form concerning his first disability-related absence. Stoughton cites no authority for the proposition that Geen's failure to submit medical certification related to his first disability-related absence somehow constitutes a waiver of his right to qualify any future disability-related absences as FMLA leave. We therefore reject Stoughton's waiver argument as well.

¶ 28. Stoughton also asserts that Geen was actually requesting "intermittent leave" under the Act, and that in the case of intermittent leave, "[t]here is no requirement" that Stoughton was required to give Geen a second written request for medical certification. Thus, according to Stoughton, its written request for medical certification following Geen's second disability-related absence was a "generous action" that "did not require it to wait yet another 15 days for Geen to submit the medical certification." Again we disagree.

¶ 29. The Act allows employees to take "intermittent leave" (defined as leave taken in separate blocks of time due to a single qualifying reason (29 C.F.R. § 825.203(a)), but this type of leave appears to be intended for employees who have a predictable, regularly recurring need for leave. See .29 C.F.R. § 825.117 ("Employees needing intermittent FMLA leave . . . must attempt to schedule their leave so as not to disrupt the employer's operations"); see also 29 C.F.R. § 825.203(c)(1) ("Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy."). Although Geen knew that he occasionally suffered from migraine headaches, he could not have foreseen the particular dates on which he would be absent due to his migraine headaches. Geen's two disability-related absences do not therefore appear to fall under the category of "intermittent leave." In any event, the regulations provide that when an employer chooses to request medical certification, it "must allow at least 15 calendar days after the request" for the employee to return the certification. 29 C.F.R. § 825.305(b) (emphasis added).

¶ 30. Finally, Stoughton argues that "Geen should be deemed to have waived" any argument concerning the fifteen-day certification period. See State v. Outag- amie County Bd. of Adjustment, 2001 WI 78, ¶ 55, 244 Wis. 2d 613, 628 N.W.2d 376 (In order to preserve an issue for judicial review, a party must raise it before the administrative agency.). We conclude, however, that Geen preserved this issue for review by briefing it to the commission. Specifically, Geen argued in his brief to the commission that " [according to federal law, Mr. Geen had a minimum of 15 days to get [medical certification] in, and more time if that was reasonable under the circumstances (see 29 C.F.R. 825.305(b))." (Footnote omitted.) Geen further argued that Stoughton had "fail[ed] to explain how firing an employee two days into the statutory fifteen day period" could constitute reasonable accommodation. Geen adequately preserved the issue for the circuit court's and our review.

¶ 31. In summary, we conclude that the commission's determination that Stoughton reasonably accommodated Geen's disability may be unreasonable because it appears to conflict with the legislative intent underlying the FMLA and Wis. Stat. § 111.34(l)(b). The commission determined that Stoughton reasonably accommodated Geen's disability by giving him the opportunity to have his disability-related absences declared medical leave under the FMLA, but it did not consider all of the requirements the FMLA and related regulations place on employers.

¶ 32. If an agency erroneously interprets a provision of law, we may set aside the agency action and "remand the case to the agency for further action under a correct interpretation." Wis. Stat. § 227.57(5). Alternatively, we may "modify the agency action if. . . a correct interpretation compels a particular action." Id. We reject the latter alternative for two reasons. First, it is conceivable that the commission could conclude after a full consideration of FMLA requirements that Stoughton nonetheless reasonably accommodated Geen's disability within the meaning of Wisconsin's Fair Employment Act (WFEA). Because the commission did not address the possible FMLA violation in its present decision, we conclude it should be given the opportunity to do so on remand. Furthermore, as we discuss below, the ultimate disposition of Geen's claim may turn on another issue which the commission did not address.

II.

¶ 33. The commission did not complete the inquiry which preceded its consideration of the reasonable accommodation issue: Did Stoughton terminate Geen's employment "because of his disability? An employer's motivation for terminating an employee is often a question of fact. See, e.g., Hoell v. LIRC, 186 Wis. 2d 603, 614, 522 N.W.2d 234 (Ct. App. 1994) (Whether employer terminated employee because of her pregnancy or because of her poor job performance "presents a question of ultimate fact."). Here, the factual circumstances of Geen's termination are not in dispute. Stoughton terminated Geen because he exceeded the maximum number of absences allowed under Stoughton's attendance policy.

¶ 34. A dispute exists, however, concerning, in the commission's words, "at. . . [what] point the application of a 'no-fault' attendance policy to a person who is experiencing absences caused by a disability, will constitute taking action against that person 'because of the disability." We conclude that on undisputed facts this question becomes one of law. See Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 449, 597 N.W.2d 462 (Ct. App. 1999) ("Once the facts are determined, whether the facts fulfill a particular legal standard is a question of law."). The commission ruminated on the question but did not decide it. The commission's counsel explained in a brief to the trial court:

[A]lthough the Commission was "reluctant" to find that Geen's termination was "because of' his disability when only two of the 6.5 "occurrences" resulting in his discharge were related to his disability, the Commission made no finding of fact or conclusion of law that Geen was not discharged "because of his disability within the meaning of Wis. Stat. §§ 111.321 and 111.322. The Commission assumed that Geen's discharge was because of his disability and therefore proceeded to conclude that Geen was not discriminated against because of disability within the meaning of Wis. Stat. § 111.34 because Geen's disability was reasonably related to his ability to adequately undertake his job-related responsibilities, and because Stoughton Trailers did not refuse to reasonably accommodate his disability.

(Emphasis added.)

¶ 35. "Courts . . . frequently refrain from substituting their interpretation of a statute for that of the agency charged with the administration of a law." Lisney v. LIRC, 171 Wis. 2d 499, 505, 493 N.W.2d 14 (1992). We choose to exercise such restraint by giving the commission the first opportunity to decide the question of whether a termination for six accumulated absences, the last two of which were disability-related, constitutes termination "because of' a disability. Although this question is one of law, it is intertwined with value and policy judgments, and its resolution by the commission will benefit from the commission's expertise in matters relating to employment, and from its experience in interpreting and administering the WFEA. See Wal-Mart Stores, Inc., 2000 WI App 272 at ¶ 28 (inviting commission to address on remand a question "of some importance" involving "significant policy implications").

CONCLUSION

¶ 36. For the reasons discussed above, we conclude, as did the circuit court, that the commission's order dismissing Geen's complaint must be set aside. We modify the circuit court's disposition, however, as follows: In place of the direction to "implement the ALJ order," the matter shall be remanded to the commission for further proceedings consistent with this opinion. On remand, the commission shall consider, to the extent it is necessary to do so, either or both of the following issues: (1) whether on the present facts Stoughton terminated Geen's employment because of his disability; and (2) whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how. In revisiting these issues, the commission may elect to take additional evidence in order to provide a complete record on the issues.

By the Court. — Order modified, and as modified, affirmed.

       We will employ the acronym FMLA in the remainder of this opinion to refer to the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601-54. Wisconsin has enacted similar provisions, see Wis. Stat. § 103.10 (1999-2000), but the state law is not implicated in this appeal. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Congress authorized the Secretary of Labor to issue regulations needed to carry out the provisions of the FMLA. See 29 U.S.C. § 2654.

       The record is unclear as to why Geen's doctor did not excuse all three days of his late-January migraine-related absence.

       Immediately prior to his late-January migraine-related absence, Geen took one, non-illness-related vacation day. By mistake, Stoughton recorded the absence as a day of FMLA leave and accordingly did not charge Geen with an "occurrence." At some point after Geen's termination, Stoughton recorded the day as a non-excused absence warranting an "occurrence." Regardless of how Stoughton ultimately characterized this absence, the fact remains that on the date of Geen's termination (January 31, 1997), Stoughton terminated Geen on the basis that he lacked medical documentation for one day of his late-January migraine-related absence.

       Wisconsin Stat. § 111.32(8) defines an individual with a disability as one who:
      (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
      (b) Has a record of such an impairment; or
      (c) Is perceived as having such an impairment.

       The commission has held that an employer may satisfy the reasonable accommodation requirement by "offering] an accommodation which effectively eliminates the conflict between the handicapped employee's abilities and the job requirements, and which reasonably preserves the affected employee's employment status." Norton v. City of Kenosha, ERD No. 9052433 (LIRC, Mar. 16, 1994).

       When reviewing an agency's conclusion of law, there are three possible levels of deference: great weight, due weight, or de novo. American Mfrs. Mut. Ins. Co. v. Hernandez, 2002 WI App 76, ¶ 11, 252 Wis. 2d 155, 642 N.W.2d 584. We give great weight deference to the commission's reasonable accommodation determination in light of: (1) the commission's legislatively-mandated duty to adjudicate appeals of matters under the Wisconsin fair employment law, including complaints for disability discrimination; (2) the commission's experience and expertise in interpreting the reasonable accommodation requirement of Wis. Stat. § 111.34(l)(b)j (3) the need for greater uniformity and consistency in interpreting this requirement; (4) the factual issues intertwined with the reasonable accommodation determination; and (5) the value and policy judgments involved in this determination. Target Stores v. LIRC, 217 Wis. 2d 1, 13, 576 N.W.2d 545 (Ct. App. 1998).

       The commission said in its decision "that there is a serious question as to whether it would be reasonable to say" that a termination under Stoughton's attendance policy was" 'because of the person's disability" where the first two of six absences, instead of the last two as here, were disability-related. It also concluded that whether Geen's termination was because of his disability was "an equally serious question." The commission went on to note its prior decisions which have touched on the issue, concluding that "there is no bright-line rule" regarding when a "no-fault" attendance policy becomes discriminatory on account of disability-related absences.
      Stoughton argues that the commission resolved the "termination because of disability" question in its favor by stating in its Conclusion of Law No. 6: "Respondent did not discriminate against Complainant because of disability within the meaning of Wis. Stat. § 111.34 when it terminated his employment." When viewed in context (see ¶ 12), however, this conclusion is nothing more than the necessary final determination flowing from the commission's previous conclusion (No. 5) that Stough-ton "did not refuse to reasonably accommodate [Geen]'s disability." See id. Conclusion of Law No. 6 does not say that Stoughton did not terminate Geen's employment because of his disability, a question it expressly left open. The commission's determination that Stoughton had not discriminated against Geen because of his disability was based solely on its conclusion that Stoughton had reasonably accommodated Geen's disability by allowing him to qualify his absences as medical leave.

        See also Wisconsin Bell, Inc. v. DOR, 164 Wis. 2d 138, 144, 473 N.W.2d 587 (Ct. App. 1991) ("[W]here an issue presented to the court involves fact-finding or policymaking within the agency's field of expertise or administration — such as the application of a law administered by the agency to a specific set of facts — 'the agency should be given the first review unless there is some valid reason for the court to intervene and exercise its jurisdiction." (discussing "the primary jurisdiction rule") (citation omitted).).


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    In re the Commitment of Kenneth Parrish: State of Wisconsin, Petitioner-Respondent, v. Kenneth Parrish, Respondent-Appellant.

    Court of Appeals

      No. 00-2524.

      Submitted on briefs August 26, 2002.

    Decided October 15, 2002.

    2002 WI App 263
    (Also reported in 654 N.W.2d 273.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 1-21-03.

   SCHUDSON, J.

¶ 1. Kenneth Parrish appeals from the trial court judgment and order committing him to the Wisconsin Department of Health and Family Services, following a bench trial in which the court found that he was a sexually violent person under ch. 980. He also appeals from the trial court order denying his motion for post-commitment relief. Parrish argues that the trial court erred in: (1) concluding that neither claim preclusion nor issue preclusion barred the State from seeking his ch. 980 commitment following his parole revocation, even though the State had failed to prove that he was a sexually violent person in need of commitment in a previous ch. 980 trial that took place prior to his parole; and (2) failing to examine the record of the earlier, pre-parole commitment trial in order to determine whether issue preclusion barred the post-parole-revocation commitment trial.

¶ 2. Parrish also argues that his commitment is improper because: (1) the evidence did not establish that he suffered from a mental disorder that rendered him unable to control his sexually violent behavior and, further, that absent such evidence of a condition affecting "volitional" capacity, see Wis. Stat. § 980.01(2), a person cannot be committed under ch. 980; (2) defense counsel "prejudiced the chances for prevailing at trial by failing to seek assistance from an expert to counter the key opinion testimony of the government expert witness"; and (3) the 1999 amendments to ch. 980 violate his rights to due process and equal protection.

¶ 3. We conclude that, under the doctrines of claim preclusion and issue preclusion, because a ch. 980 commitment trial necessarily focuses on the current circumstances of a defendant, a post-parole-revocation commitment trial is not barred by the fact that a pre-parole commitment petition was tried and dismissed. We also conclude that although evidence introduced at a pre-parole commitment trial may be relevant to a post-parole-revocation trial, and although a court may consider the record of a pre-parole commitment trial in order to determine the merits of a motion, based on issue preclusion, to dismiss a post-parole-revocation commitment petition, the trial court is not, as a matter of law, required to examine the record of the pre-parole trial in order to decide the motion. We also reject Parrish's other challenges to his commitment and, therefore, affirm.

I. BACKGROUND

¶ 4. As summarized by Dr. Timothy J. McGuire, a Wisconsin Department of Corrections psychologist, in his 1998 "Chapter 980 Sexual Predator Evaluation" report, Parrish "presents a long standing history of sexually assaultive behavior, with increasing violence, beginning as a juvenile and continuing unabated into adulthood." Parrish's record of sexual assaults of teenage girls culminated in 1985 when he was convicted of first-degree sexual assault and endangering safety by conduct regardless of life, and sentenced to consecutive prison terms totaling twenty-three and one-half years.

¶ 5. In 1995, as Parrish was approaching his mandatory release date and parole, the State petitioned for his commitment under ch. 980. Thus, Parrish was not paroled; instead, he was held in custody pending his ch. 980 trial, which did not take place until May 28 - June 10, 1997. At that trial, however, the court found that the evidence had not proven that Parrish was a sexually violent person in need of commitment and, therefore, it dismissed the petition. Consequently, on June 13, 1997, Parrish was released on parole.

¶ 6. Within a few months of his release, Parrish's parole was revoked as a result of an incident in which he threatened a co-worker with a knife. Thus, he was returned to prison in September 1997 and, in 2000, when Parrish was within 90 days of release, the State again petitioned for his ch. 980 commitment. Parrish moved to dismiss the petition asserting that the 1997 dismissal of the 1995 commitment petition barred the State's 2000 commitment petition. Relying on what he termed "the concepts of res judicata, issue preclusion, collateral estoppel, estoppel by the record, and double jeopardy," Parrish requested dismissal "on the grounds that the same issues have been, and are being, presented in the two petitions." He maintained:

The present litigation has precisely the same parties, issues, claims, and theories which were a part of and asserted during the previous action. Nothing has changed in any material respect.... The trial court in 1997[] considered those same claims and propositions, and found them to be insufficient to sustain the requirements of the law so as to justify commitment.... Now, thirteen months later, the [S]tate must not be allowed a "second kick at the cat[.]"

¶ 7. In response to the motion, the State challenged Parrish's factual premise that "[n]othing ha[d] changed in any material respect." The State maintained:

[Parrish] was tried before the court in 1997, and the court found that based on facts existing up to the time of the trial, the State had not met its burden of proof. Since that time, [Parrish] was released on parole and revoked, sent back to prison and reached a new discharge date. Thus, the facts accounting for his parole revocation — which are not yet before the court — are new to the formula. Revocations occur because a criminal offender either violates the law, violates his rules of parole, or significantly fails to abide by certain parole requirements. Any or all of these occurrences would clearly affect the formulation of a risk assessment of the Respondent's future dangerousness, and therefore] are new facts to the second Chapter 980 prosecution. They may also materially affect the strength of the mental disorder diagnosis,' another element the State must prove anew.

¶ 8. The trial court embraced the State's argument. Denying Parrish's motion to dismiss, the court commented that the facts and circumstances that had "come to light since the prior proceeding" were important and, in particular, Parrish's parole revocation and subsequent incarceration "create [d] a whole new dynamic to his risk assessment which may affect the strength of [his] mental disorder diagnosis."

¶ 9. At the second ch. 980 trial, the State presented extensive testimony from Dr. Dennis M. Doren, a psychologist employed at the Mendota Mental Health Institute, and from Christopher Kittman, a Wisconsin Department of Corrections probation and parole agent. Parrish called no witnesses. Concluding that the evidence established that Parrish was a sexually violent person, the trial court commented on his conduct following parole:

He wasn't actually released from an institution until June 13th of '97. Then again, three months later, September of 1997[,] he's got his parole revoked for threatening co-workers [sic] with a knife.
In that very limited time that he has been outside of institutions, he's engaged in some violent conduct, conduct that certainly shows a disregard for other people, conduct that shows in particular a disregard for females, and conduct that. . . involved sexual misconduct and... is [oí] a criminal nature with regard to females.

¶ 10. In his motion for post-commitment relief, Parrish maintained that "[t]he circumstances pertaining to the parole release and revocation were not relevant to the diagnosis of [his] purported mental disorder in the instant proceeding and did not have any significant influence in raising the risk factor while assessing [his] dangerousness for the purposes of a ch. 980 commitment." Thus, Parrish contended that, because no new material factual circumstances had arisen since the first trial, both claim preclusion and issue preclusion should have barred his second ch. 980 trial.

¶ 11. In his post-commitment motion, Parrish also contended that: (1) the evidence was insufficient because it did not include what hé termed "the constitutionally required evidence of a volitional impairment"; (2) defense counsel was ineffective for failing to "consult with, retain or seek appointment of a mental health professional" to counter Dr. Doren's testimony; and (3) the amendments to ch. 980, removing the obligation of a committing court to employ the least restrictive dispositional alternative and requiring a committed defendant to remain at the Wisconsin Resource Center for at least eighteen months before petitioning for supervised release, see Wis. Stat. §§ 980.06, 980.065, 980.08, denied him due process "by transposing the commitment into punishment," inconsistent with "the original treatment rationale" of ch. 980.

¶ 12. In its written decision rejecting Parrish's preclusion argument and denying his post-commitment motion, the trial court declared:

[Parrish] would have this court accept that the revocation is insignificant to his risk to reoffend because it did not involve a sexually assaultive offense and because it does not specifically relate to his mental disorder diagnosis. The question, however, is not whether the revocation proved [Parrish] to be a sexually violent person but whether that event and the circumstances surrounding it, which were not before the court in the prior proceedings, altered an assessment of his risk to reoffend within the community.

The court also concluded that ”[e]vidence of volitional impairment was not required," that counsel's failure to secure an expert to counter Dr. Doren's testimony was not prejudicial, and that the amendments to ch. 980 did not deny Parrish equal protection or due process.

II. DISCUSSION

A. Claim Preclusion and Issue Preclusion

¶ 13. Parrish first argues that the second ch. 980 trial should have been barred by the doctrine of claim preclusion or, in the alternative, issue preclusion. We disagree.

¶ 14. Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties or their privies involving all matters litigated, and all matters that could have been litigated, in the proceeding leading to the judgment. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). Under the doctrine of issue preclusion, a final judgment bars the relitigation of a factual or legal issue that actually was litigated and decided in the earlier action. Id. Whether either preclusion doctrine applies to bar an action is a legal issue we review de novo. Mayonia M.M. v. Keith N, 202 Wis. 2d 460, 464, 551 N.W.2d 31 (Ct. App. 1996).

¶ 15. To determine whether claim preclusion bars an action, a court considers whether: (1) both the prior action and the challenged action have the same parties; (2) both the prior action and the challenged action have the same causes of action; and (3) the prior action resulted in a final judgment on the merits in a court of competent jurisdiction. See Northern States Power, 189 Wis. 2d at 551. Here, the parties agree, only the second criterion is at issue. And because that second criterion of claim preclusion is inextricably connected to issue-preclusion analysis — whether a specific issue already has been litigated, see id. at 550 — our determination, in the instant appeal, of whether the same cause of action was involved in both Parrish's pre- and post-revocation commitment trials will resolve his appellate claims under both preclusion doctrines.

¶ 16. Parrish concedes that his parole revocation "did constitute a new factual development." He argues, however, that "it does not follow that every factual change of some marginal relevance between the initiation of the two proceedings authorizes a second suit." After all, he maintains, if any factual change allowed for the State's renewal of its effort to commit a person under ch. 980, "the [S]tate would almost always be able to initiate a second ch. 980 proceeding if it lost the first case."

¶ 17. Parrish argues, therefore, that significant or substantial new facts resulting in a material change in circumstances are necessary before the State may bring a second ch. 980 petition. See Juneau Square Corp. v. First Wis. Nat'l Bank of Milwaukee, 122 Wis. 2d 673, 687, 364 N.W.2d 164 (Ct. App. 1985). He contends that no such facts were present here and no material change in circumstances occurred between his two trials. His brief to this court elaborates:

While [Dr.] Doren .. . changed his diagnosis of Parrish from the first trial, he did not claim that the circumstances of the revocation had any bearing whatsoever on his altered opinion. To the contrary, [Dr.] Doren expressly based his opinions on six specific acts committed by Parrish, the most recent occurring in 1990.
It is not surprising that [Dr.] Doren could not point to Parrish's threats resulting in revocation as raising the degree of risk. Parrish's "verbally violent" behavior, as [Dr.] Doren called it, hardly makes him a model citizen, but it does nothing to demonstrate that he is likely to engage in future acts of "sexual violencef]"... To the contrary, it could readily be contended that Parrish's abstinence from sexually improper behavior during his period of release made him a less likely candidate for a ch. 980 commitment than he was at the first trial when the [S]tate's evidence was inadequate.

¶ 18. The State first responds by countering Parrish's concern that almost any factual change could allow the State to pursue a second ch. 980 petition simply "if it lost the first case." As the State explains, Wis. Stat. § 980.02 does not provide for such an easy return to court. A second petition could only be filed for a defendant who, once again, was in custody and, once again, was within ninety days of release or discharge. Thus, at the very least, any change in circumstances leading to the second petition would have had to have been significant enough to have warranted the defendant's return to custody.

¶ 19. The State is correct. Wisconsin Stat. § 980.02(2)(ag) requires that a ch. 980 petition allege that the subject is "within 90 days of discharge or release, on parole ... or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense." Thus, the State certainly would not "almost always be able to initiate a second ch. 980 proceeding if it lost the first case" as Parrish claims; the statute blocks the parade Parrish predicts.

¶ 20. The State next responds by emphasizing that in Parrish's pre-parole commitment trial, "all that was litigated was whether Parrish was a sexually violent person in need of commitment at that time." While that temporal limitation is obvious, it also is important. In fact, just recently, this court accentuated the singular significance of the present-time focus of a ch. 980 commitment trial. In State v. Treadway, 2002 WI App 195, 257 Wis. 2d 467, 651 N.W.2d 334, review denied, 2002 WI 121, 257 Wis. 2d 116, 653 N.W.2d 889 (Wis. Oct. 21) (No. 00-2957), we considered whether a ch. 980 petition must be filed within ninety days of a defendant's release from his aggregate sentence, or within ninety days of his completion of his sentence for a sexually violent offense where he also was serving consecutive time for non-sexually-violent offenses. Id. at ¶¶ 12-18. We rejected what we deemed the absurd construction of Wis. Stat. § 980.02(2)(ag), which would have required that the petition be filed within ninety days of his completion of the sentence for the sexually violent offense, notwithstanding the fact that release was many years away. We explained:

After all, if the State were required to file its Wis. Stat. ch. 980 petition within ninety days of the conclusion of a sentence for a sexually violent offense, despite the fact that the subject of the petition still could be serving additional time in an unbroken string of sentences, the petition could not accurately address the defendant's circumstances, mental condition, and treatment needs at the time of scheduled release. Discharge or release could be many months or, as in this case, many years away.
Moreover, in some cases, concurrent sentences, or concurrent and consecutive sentences, interlace, and some are further complicated by sentences after revocation.

Id. at ¶¶ 17-18 (emphases added). See also State v. Laxton, 2002 WI 82, ¶ 18 n.12, 254 Wis. 2d 185, 647 N.W.2d 784 ("Wisconsin ch. 980 focuses on [a defendant's] present mental disorder .... [D]angerous individuals are subject to civil commitment under ch. 980 because of a present mental disorder involving serious difficulty controlling [their] behavior." (emphasis added)).

¶ 21. Here, Parrish's second ch. 980 trial differed from his first not simply because it involved a different release date, but also because it came years after the first trial, thus requiring the court to consider new facts and circumstances. While Parrish maintains that those facts following the first trial were of little if any significance, he concedes their relevance. And as the State cogently argues, the "dynamic nature of both a person's mental health and his or her need for commitment" suggests that the passage of time, together with important factual developments — conduct leading to parole revocation, a return to custody, and subsequent conduct and treatment while incarcerated — may indeed justify a new ch. 980 petition.

¶ 22. Although Parrish's preclusion argument presents an issue of first impression in Wisconsin, other jurisdictions have considered the dynamic nature of mental health and the importance of present-time determinations in the contexts of their civil commitment laws. See In re Mental Health L.C.B., 830 P.2d 1299, 1304 (Mont. 1992); Archer v. State, 681 So. 2d 296, 299 (Fla. Dist. Ct. App. 1996); In re Katz, 638 A.2d 684, 687 (D.C. 1994). Recently, the California Court of Appeals explained why the State's petition for extension of a defendant's commitment under the Sexually Violent Person Act (SVPA), California's counterpart to ch. 980, must be based on the defendant's current condition, with particular concentration on the developments since the last commitment order:

The nature of the [SVPA] envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed [sexually violent person] .... Although the same requirements or issues are involved in alleging any "cause" filed via petition under the Act, the actual facts or circumstances comprising that "cause" in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed [sexually violent person],

Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 474 (Ct. App. 2000) (citations omitted). While the court was not considering whether claim or issue preclusion barred the State's action, its emphasis on "the current mental condition and dangerousness," "the addition of new facts," and "the sheer passage of time" is sound and applicable here. In fact, such emphasis is all the more meaningful where a defendant is released, revoked, and returned to custody during that "sheer passage of time."

¶ 23. In Parrish's cases, more than a year passed between the time a trial court determined that the evidence had not established that he was a sexually violent person and the time the State filed the second ch. 980 petition. In the interim, Parrish's parole was revoked and he was returned to prison. The passage of time, the new circumstances, and the dynamic nature of his mental health and potential dangerousness allowed the State to file a new petition for his commitment. Neither claim preclusion nor issue preclusion barred Parrish's post-parole-revocation commitment trial.

B. Issue Preclusion / Record of the Prior Ch. 980 Trial

¶ 24. Parrish also argues, however, that before resolving the matter of issue preclusion, the trial court was obligated to examine the record of the first ch. 980 trial. He contends, therefore, that the trial court erred in denying his repeated requests to review that record, and he further argues that because this court has denied his two motions to supplement the appellate record with the transcript of the first trial, he is being denied "a fair appeal" of his challenge to the trial court's ruling on issue preclusion. Parrish is incorrect.

¶ 25. Under certain circumstances, a trial court might need to review the record of a previous ch. 980 trial and, no doubt, consider an offer of proof from a defendant challenging a petition on the basis of issue preclusion. For example, where a second petition is filed on the heels of a trial resulting in the dismissal of the first petition and where, a defendant alleges, a parole revocation was nothing more than a ruse to re-incarcerate and regain a chance for ch. 980 commitment, a careful court might want to review the first trial's record. Here, however, the trial court was not required to do so because the issue, quite obviously, had changed.

¶ 26. The issue, when the second petition was filed, was whether Parrish was a sexually violent person in need of commitment in 2000, following release and revocation, not in 1997, prior to parole. The trial court did not need to read the record of the first trial to understand that. The trial court did not need to know the details of the first trial in order to determine that issue preclusion did not bar the second petition.

C. Volitional Capacity

¶ 27. Parrish next argues that the evidence did not establish that he suffered from a mental disorder that rendered him unable to control his sexually violent behavior and, further, that absent such evidence of "a congenital or acquired condition affecting . . . volitional capacity," see Wis. Stat. § 980.01(2) (emphasis added), a person may not be committed under ch. 980. He points to a portion of the trial court's written decision denying post-commitment relief, in which the court: (1) commented on the State's evidence establishing that he had two mental disorders that "affected his emotional or volitional capacity"; and (2) concluded that "[e]vidence of volitional impairment was not required at trial." (Emphasis added; citation omitted.)

¶ 28. Parrish argues that such evidence is required. He first notes that the State must prove beyond a reasonable doubt that a defendant "has a mental disorder." See Wis. Stat. §§ 980.02(2)(b) and 980.05(3)(a). He then contends that because "mental disorder" is defined as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence," see Wis. Stat. § 980.01(2) (emphasis added), ch. 980 has created "two distinct categories of conditions— those that affect the emotional capacity and those that affect volitional capacity." Parrish maintains, therefore, that "proof of the latter category is essential for the commitment to be constitutionally valid" and that, in his trial, the evidence failed to establish the requisite condition affecting his "volitional capacity."

¶ 29. In his brief to this court, Parrish relied on the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997), upholding Kansas' sexual-predator-commitment law, which required proof of a "mental abnormality" and which, like Wis. Stat. § 980.01(2)'s definition of "mental illness," defined such an abnormality, in part, as a "condition affecting the emotional or volitional capacity." See Hendricks, 521 U.S. at 352 (emphasis added). Parrish emphasizes that, notwithstanding these apparent definitional alternatives, Hendricks included language that could be read to limit commitment to those "who suffer from a volitional impairment rendering them dangerous beyond their control." Id. at 358. Thus, Parrish maintains that, in his case, the lack of evidence of volitional incapacity, and the trial court's conclusion that "[evidence of volitional impairment was not required at trial" provide the basis for vacating, his commitment.

¶ 30. Subsequent to the briefing in Parrish's appeal, the United States Supreme Court decided Kansas v. Crane, 534 U.S. 407 (2002), further developing the Hendricks analysis, and the Wisconsin Supreme Court decided Laxton, applying Crane to ch. 980. Both Crane and Laxton guide our discussion and, here, we highlight those aspects of each decision that most directly determine the fate of Parrish's theory.

¶ 31. In Crane, the Supreme Court demarcated certain boundaries of its decisions — in both Hendricks and Crane. The Court clarified that Hendricks "set forth no requirement of total or complete lack of control" as a constitutional prerequisite to commitment. Crane, 534 U.S. at 411. As the Court also clarified, however, "Hendricks had no occasion to consider whether confinement based solely on 'emotional' abnormality would be constitutional, and we likewise have no occasion to do so in the present case." Id. at 415. Thus, explicitly, Crane did not directly address the theory Parrish now posits.

¶ 32. In Crane, however, the Supreme Court set out certain parameters that seem to apply to Parrish's position. On the one hand, the Court rejected, as a prerequisite to commitment, an "[insistence upon absolute lack of control" because such a requirement "would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities." Id. at 412. On the other hand, the Court also rejected the proposition "that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination." Id.

¶ 33. The Court resisted any hard-and-fast formula for determining an issue of volitional capacity:

And we recognize that in cases where lack of control is at issue, "inability to control behavior" will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment[,] from the dangerous but typical recidivist convicted in an ordinary criminal case.

Id. at 413 (emphasis added). And finally, and of particular pertinence to the precise argument Parrish presents, the Court explained that, in Hendricks, it "did not draw a clear distinction between the purely 'emotional' sexually related mental abnormality and the 'volitional.'" Id. at 415. The Court then declared, "Here, as in other areas of psychiatry, there may be 'considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control... behavior.' " Id. (citation omitted; ellipses and alteration in Crane).

¶ 34. In Laxton, the Wisconsin Supreme Court considered whether ch. 980 was constitutional even though "the provisions of the chapter do not require a [determination] that the person has a mental disorder that involves serious difficulty in controlling his or her behavior." See Laxton, 2002 WI 82 at ¶ 1 (emphasis added); see also Crane, 534 U.S. at 411. Based on several of its recent decisions on ch. 980 challenges, and "particularly" based on Crane, the supreme court concluded:

[S]ueh a civil commitment does not require a separate finding that the individual's mental disorder involves serious difficulty for such person to control his or her behavior. The requisite proof of lack of control is established when the nexus between such person's mental disorder and dangerousness has been established. Specifically,... evidence showing that the person's mental disorder predisposes such individual to engage in acts of sexual violence, and evidence establishing a substantial probability that such person will again commit such acts, necessarily and implicitly includes proof that such person's mental disorder involves serious difficulty in controlling his or her behavior.

Laxton, 2002 WI 82 at ¶ 2. The supreme court went on to explain, adopting the state's argument, "that the concept of control is necessarily encompassed by the statutory criteria of a mental disorder and dangerousness." Id. at ¶ 20. Thus, the court concluded that "the required proof of lack of control. . . may be established by evidence of the individual's mental disorder and requisite level of dangerousness, which together distinguish a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist." Id. at ¶ 21 (footnote omitted). "Proof of this nexus [between the mental disorder and the individual's dangerousness] necessarily and implicitly involves proof that the person's mental disorder involves serious difficulty for the person to control his or her behavior." Id. at ¶ 22; see also id. at ¶ 23. With these standards now firmly set in place, the sufficiency of the evidence in Parrish's trial becomes clear.

¶ 35. Parrish does not dispute the evidence of his mental illness; and while deeming it insufficient, Parrish does not dispute the evidence of his dangerousness. He contends, however, that the trial court failed to find the necessary nexus and, further, that it erred in concluding that "[e]vidence of volitional impairment was not required at trial." Now, however, on the strength of Laxton, we conclude that although the trial court, in its post-commitment analysis, erred in commenting that "[e]vidence of volitional impairment was not required," it found such evidence that did indeed establish the nexus establishing Parrish's "serious difficulty in controlling [his] behavior." See Crane, 534 U.S. at 412.

¶ 36. In its written decision denying post-commitment relief, the trial court, immediately after identifying the testimony of Dr. Doren that established Parrish's two mental disorders, commented that the disorders "affected [Parrish's] emotional or volitional capacity" and "predispose[d him] to engage in acts of sexual violence." The court then declared:

Dr. Doren further testified in regard to [Parrish's] dangerousness that each of these disorders gave rise to a substantial probability that [Parrish] would commit a sexually violent act in the future. Based upon this testimony and evidence of [Parrish's] extensive record, including various sexually related offenses, the court found that the State had met its burden of proof of showing beyond a reasonable doubt that [Parrish] suffered from a mental disorder which made him a danger to others because it created a substantial probability that he would engage in acts of sexual violence.

(Emphasis added; citations omitted.) Clearly, therefore, while disclaiming the need for evidence of volitional impairment, the trial court found such evidence. Just as clearly, that evidence convinced the trial court of Parrish's "serious difficulty in controlling [his] behavior." Id. at 412.

D. Assistance of Counsel

¶ 37. Parrish next argues that defense counsel "prejudiced the chances for prevailing at trial by failing to seek assistance from an expert to counter the key-opinion testimony" of Dr. Doren. Parrish contends that the trial court, in denying his post-commitment motion, erred in: (1) concluding that he had failed to establish prejudice; and (2) denying an evidentiary hearing, instead basing its decision on its assessment of the report from Dr. Lynn Maskel, which he (Parrish) submitted in support of the post-commitment motion. We are not persuaded.

¶ 38. The standards controlling claims of ineffective assistance of counsel have been repeated in countless cases and need not be elaborated here. See Strickland v. Washington, 466 U.S. 668 (1984). Suffice it to say that in order to prevail, a defendant must establish both that counsel's performance was deficient and that the deficient performance produced prejudice. See id. at 687; State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). This court need not determine whether counsel's performance was deficient if the defendant has failed to show prejudice. State v. Matek, 223 Wis. 2d 611, 616, 589 N.W.2d 441 (Ct. App. 1998). Issues of whether counsel's performance was deficient or prejudicial are legal ones, subject to our independent review. Sanchez, 201 Wis. 2d at 236-37.

¶ 39. Denying Parrish's post-commitment motion, the trial court concluded that Dr. Maskel's information would not have made any difference; it would not have altered its commitment decision and, therefore, that Parrish had failed to establish prejudice. The court explained, in relevant part:

Dr. Maskel's report purports to challenge Dr. Doren's ability to translate his medical diagnoses of [Parrish] into legal standards of Chapter 980 as well as his failure to testify as to [Parrish's] volitional impairment. Dr. Maskel gives several of her own opinions about the types of instruments used by Dr. Doren in determining [Parrish's] risk to reoffend. None of these factors, however, undermines confidence in the outcome of the trial. Dr. Doren testified that his diagnosis that [Parrish] suffered from a medical [sic] disorder was based upon a medical opinion as an evaluator and not a legal opinion under Chapter 980. Dr. Doren was not qualified to nor obligated to testify whether his diagnosis of [Parrish] fulfilled the standards of Chapter 980 — a legal determination.... Trial counsel thoroughly cross-examined Dr. Doren's findings and conclusions.... Moreover, the court had the opportunity to hear all the testimony and to review all of the evidence, and based upon the same, the court finds that expert testimony from Dr. Maskel would not have altered a finding that [Parrish] is a sexually violent person under Chapter 980.

(Citations omitted.) Parrish offers nothing substantial to counter the trial court's characterization of Dr. Maskel's report or its comparative value in determining the weight of Dr. Doren's testimony. See Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (appellate court need not address "amorphous and insufficiently developed" argument).

¶ 40. Parrish argues, however, that the trial court, in its post-commitment decision, utilized an improper standard by offering its own assessment of the value of Dr. Maskel's report rather than the assessment of a "hypothetical reasonable factfinder." Thus, Parrish contends, "the issue before the [post-commitment] trial judge here was not whether he would have refused to commit if testimony challenging the reliability of actuarial devices [employed by Dr. Doren] had been presented, but whether a reasonable factfinder — be it a judge or a jury — might have had a reasonable doubt of Parrish's future dangerousness if that element had been disputed."

¶ 41. We disagree. Significantly, Parrish does not argue that the post-commitment motion judge, who was the trial judge, was not a "reasonable fact finder." Parrish offers nothing to suggest that a reasonable post-commitment motion judge must stretch his or her imagination to conjure up some sort of other reasonable fact finder who might have viewed the evidence differently. While we do not automatically accept a post-conviction or post-commitment court's rationale confirming its earlier decision, see State v. Anderson, 222 Wis. 2d 403, 408, 588 N.W.2d 75 (Ct. App. 1998), Parrish provides no law or logical basis on which we would reject the reasonable conclusion of a post-commitment judge when that judge, by virtue of having been the fact finder at trial, is in the best position to consider whether additional information would have altered his or her commitment decision.

¶ 42. Here, the post-commitment court was in the singularly advantageous position to determine the question of prejudice and, based on the post-commitment motion and Dr. Maskel's report, reasonably did so without any need for an evidentiary hearing. Accordingly, we reject Parrish's claim that defense counsel rendered ineffective assistance.

E. Additional Constitutional Challenges

¶ 43. Finally, Parrish renews the several constitutional challenges he presented in his post-commitment motion. See ¶ 11, above. While his legal arguments were substantial, similar ones have been rejected in recent cases decided subsequent to the briefing in this appeal. See State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791, review denied, 2002 WI 111, 256 Wis. 2d 63, 650 N.W.2d 840 (Wis. Jul. 26) (No. 00-2899); State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762. On these issues, Parrish offers no theory that pushes past the controlling holdings of these cases.

By the Court. — Judgment and orders affirmed.

       The circuit court memorandum decision and order denying Parrish's motion to dismiss were rendered by Judge Jeffrey A. Wagner on March 10, 1999. This court denied Parrish's petition for leave to appeal Judge Wagner's order on June 22, 1999. Subsequent proceedings at issue in this appeal were before Judge Daniel L. Konkol.

       Parrish also observes that "[w]here the litigation concerns the efforts of the government to deprive an individual of his liberty, the preclusion doctrines are within the scope of a person's constitutional guarantee against being subjected to double jeopardy." See State v. Canon, 2001 WI 11, ¶¶ 8-22, 241 Wis. 2d 164, 622 N.W.2d 270. On appeal, however, Parrish does not present a separate double-jeopardy argument.

       We note, in this regard, that Parrish makes no claim that his revocation was a mere ruse used by the State to regain the opportunity to petition for his commitment. Needless to say, our courts would be sensitive to any governmental attempt to circumvent ch. 980's limitations by manufacturing an insubstantial parole revocation in order to gain a second chance to seek commitment.

       In this case, Parrish's conduct leading to parole revocation was particularly significant. Parrish not only threatened a co-worker, but did so with a knife. Parrish also had used a knife in two separate crimes resulting in convictions for first-degree sexual assault; in one of them he slashed the victim's face.

       Under the SVPA, a commitment continues for only two years unless extended by court order. See Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 473-74 (Ct. App. 2000) (quoting Cal. Welf. & Inst. Code § 6604 (1995)).

       Denying the second of Parrish's two motions to supplement the record, this court stated: "Parrish has not shown that it would be necessary for this court to review the transcripts from [his first ch. 980 trial] in order to review the trial court's order. The trial court's decision was apparently based on the changing picture of Parrish's dangerousness since the last trial."

       Parrish relies on State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), in which the supreme court concluded that a trial court, determining whether issue preclusion barred a defendant's prosecution for misdemeanor battery following his acquittal for felony battery, must examine the record of the felony trial. See id. at 344-45. As the State points out, however, Vassos, dealing with whether a criminal prosecution is foreclosed because the defendant already has been acquitted of the crime, is not analogous to Parrish's case, dealing with whether a ch. 980 civil commitment trial is foreclosed despite the passage of time and the development of facts and circumstances never considered in the prior trial.