source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eduardo Jose Trigueros, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1701-CR.

      Submitted on briefs March 1, 2005.

      Decided April 12, 2005.

    2005 WI App 112
    (Also reported in 701 N.W.2d 54.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen Miller Carter, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Gregory M. Weber, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 8-25-05.

   FINE, J.

¶ 1. Eduardo Jose Trigueros appeals from a judgment entered on his guilty plea to possession of one gram or less of cocaine, with the intent to deliver, see Wis. Stat. § 961.41(lm)(cm)lg, and from an order denying his postconviction motion for sentence modification. Trigueros alleges that the trial court erroneously exercised its sentencing discretion. We affirm.

I.

¶ 2. Eduardo Jose Trigueros was charged with possession of one gram or less of cocaine, with the intent to deliver, after a Milwaukee police officer found .29 grams of cocaine base in Trigueros's pants pocket during a pat-down search. As we have seen, Trigueros pled guilty. Before sentencing, the probation department prepared a presentence-investigation report. Trigueros told the report writer that he had been selling cocaine "off and on" for about twelve months. He also told the report writer he had smoked marijuana daily and had used cocaine, but that he had signed up for drug treatment at the United Community Center. The report writer recommended three years of probation.

¶ 3. At the sentencing hearing, the State recommended thirty-eight months of imprisonment, with an initial confinement of fourteen months, and twenty-four months of extended supervision. Trigueros's lawyer asked the trial court for probation. The trial court sentenced Trigueros to an imposed and stayed sentence of sixty months in prison, with an initial confinement of twenty-four months, and thirty-six months of extended supervision, and ordered that he serve four years on probation. As a condition of probation, the trial court ordered Trigueros to serve twelve months in the House of Correction under the Felony Drug Offender Alternative to Prison Program. The trial court also ordered Trigueros not to have any contact with the drug community as a condition of probation and extended supervision.

II.

¶ 4. Trigueros challenges his sentence on several grounds. First, he alleges that the trial court erroneously exercised its sentencing discretion and points to State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, which requires that trial courts "by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives." Id., 2004 WI 42, ¶ 46, 270 Wis. 2d at 560, 678 N.W.2d at 208. Trigueros argues that the trial court placed too much weight on the need to protect the public, and did not adequately consider what he alleges are mitigating character traits, including that he: (1) accepted responsibility for the crime; (2) was in a committed relationship and a parent to his son; (3) had "an established" employment history; (4) had excellent reading skills; and (5) came from a poor family. We disagree.

¶ 5. Sentencing is committed to the discretion of the trial court, and our review is limited to determining whether the trial court erroneously exercised its discretion. McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512, 520 (1971). There is a strong public policy against interfering with the trial court's sentencing discretion, and the trial court is presumed to have acted reasonably. State v. Wickstrom, 118 Wis. 2d 339, 354, 348 N.W.2d 183, 191 (Ct. App. 1984). To get relief on appeal, the defendant "must show some unreasonable or unjustified basis in the record for the sentence imposed." State v. Borrell, 167 Wis. 2d 749, 782, 482 N.W.2d 883, 895 (1992).

¶ 6. The three primary factors a sentencing court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633, 639 (1984). The court may also consider the following factors:

"(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of pre-sentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention."

Id., 119 Wis. 2d at 623-624, 350 N.W.2d at 639 (quoted source omitted); see also Gallion, 2004 WI 42, ¶¶ 59-62, 270 Wis. 2d at 565-566, 678 N.W.2d at 211 (applying the main McCleary factors — the seriousness of the crime, the defendant's character, and the need to protect the public — to Gallion's sentencing). The weight given to each of these factors is within the trial court's discretion. Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975); see also Gallion, 2004 WI 42, ¶ 62, 270 Wis. 2d at 566, 678 N.W.2d at 211.

¶ 7. The trial court considered the appropriate factors when it sentenced Trigueros. It considered the seriousness of the crime, describing the devastating impact drugs have on families and children. It commented that not only do parents and children become addicted to drugs, but also that: "Drug trafficking brings violence into the neighborhoods. And that's exactly what the ... Neighborhood Impact Statement describes here. It points out that there was a young man who was shot over drugs." The trial court also considered Trigueros's character, noting that he had no prior criminal record and that he was involved in a drug treatment program. In its decision and order denying Trigueros's motion for postconviction relief, the trial court further explained that at sentencing it had placed great weight on the negative impact drug dealing has on the community. It noted that it was aware of Trigueros's positive character traits, but that Trigueros's "willingness to become part of the problem by selling drugs reflected negatively upon his character and greatly influenced [its] sentencing decision." The trial court properly exercised its sentencing discretion.

¶ 8. Second, Trigueros claims that the trial court erroneously exercised its discretion because it did not consider probation as an option. Again, we disagree. In each case, the sentence imposed shall "call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." McCleary, 49 Wis. 2d at 276, 182 N.W.2d at 519 (quoted source omitted). Here, as we have seen, the trial court considered the appropriate factors. Based upon those factors, including what it characterized in its decision and order denying Trigueros's motion for postconviction relief as his treatment needs, it determined that "probation... is appropriate," but that treatment in the Felony Drug Offender Alternative to Prison Program was a "critical part of that." This was an appropriate exercise of discretion.

¶ 9. Third, Trigueros contends that the trial court erroneously exercised its discretion because it "ignored" the presentence-investigation report's recommendation that Trigueros be placed on probation. Trial courts, however, are not required to blindly accept or adopt sentencing recommendations from any source. State v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352, 355 (Ct. App. 1990). Rather, a trial court must independently determine that a particular sentence is appropriate in light of the goals of sentencing as applied to the facts of the case. Ibid. In its decision and order denying Trigueros's motion for postconviction relief, the trial court noted that it had considered Trigueros's presentence-investigation report, but was not required to adopt its sentencing recommendation. We agree. Again, there is no evidence that the trial court erroneously exercised its discretion.

¶ 10. Finally, Trigueros challenges the condition that he have no contact with the drug community. At sentencing, the trial court told Trigueros that, as a condition of probation and extended supervision, he was:

to have no contact with the drug community. By that, I mean you're not to associate or be with anyone or any place that drugs are being possessed, used, or sold. And so if you're hanging out with some people that you think are your buddies or family, and they have drugs and you don't get out of there and the police arrive, that — your mere presence is sufficient to revoke your probation and send you to prison, or revoke your extended supervision and send you back to prison.

Trigueros claims that this condition is unconstitutionally overbroad and vague, and thus violates his right to privacy and freedom of association. We address his contentions in turn.

¶ 11. Trigueros argues that the condition that he have no contact with the drug community is overbroad because it is not related to his crime. He claims that it "overreaches into [his] private life yet promotes no legitimate rehabilitative objective." We disagree. Probation conditions " 'may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation.'" State v. Oakley, 2001 WI 103, ¶ 19, 245 Wis. 2d 447, 469, 629 N.W.2d 200, 210 (quoted source omitted). State v. Lo, 228 Wis. 2d 531, 538, 599 N.W.2d 659, 663 (Ct. App. 1999), recognized that the standard for when a statute is overbroad applies to conditions of probation, and opined:

A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate. The essential vice of an overbroad law is that by sweeping protected activity within its reach it deters citizens from exercising their protected constitutional freedoms, the so called "chilling effect."

Ibid, (quoted source omitted).

¶ 12. The condition restricting Trigueros's association with the drug community is both reasonably related to his crime and to his rehabilitation as well as the need to protect the community. See State v. Koenig, 2003 WI App 12, ¶ 7, 259 Wis. 2d 833, 837, 656 N.W.2d 499, 501 ("While rehabilitation is the goal of probation, judges must also concern themselves with the imperative of protecting society and potential victims."). Trigueros told the presentence-investigation report writer that he had used marijuana and cocaine, but that he was " 'sincere in his efforts to maintain sobriety.'" The condition that Trigueros not have contact with the drug community will help Trigueros remain drug-free, and ensure that he does not sell drugs in the community again. See United States v. Romero, 676 F.2d 406, 406-407 (9th Cir. 1982) (condition that defendant " 'not... associate with any person who uses, sells, or in any other manner is unlawfully involved with any drugs'" is a "reasonable measure for appellant's rehabilitation and the protection of the public").

¶ 13. Trigueros also contends that this condition is unconstitutionally vague because he "cannot know what a 'drug community' is and yet the authorities can supply its [sic] own definition of a 'drug community' and find him in violation of the court order." Again, we disagree and again look to Lo for the appropriate standard. "A statute [and, therefore, a condition of probation] is unconstitutionally vague if it either fails to afford proper notice of the prohibited conduct or fails to provide an objective standard for enforcement." Lo, 228 Wis. 2d at 535, 599 N.W.2d at 661. "We will not declare a statute to be unconstitutional on vagueness grounds 'if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.'" Id., 228 Wis. 2d at 535-536, 599 N.W.2d at 662 (quoted source omitted).

¶ 14. Here, the trial court's oral pronouncement defines a "drug community" for Trigueros. The trial court specifically told Trigueros that he may not be around any person when, or be in any place where, "drugs are being possessed, used, or sold." This condition is clear and gives Trigueros fair notice of what a "drug community" is. See City of Milwaukee v. Burnette, 2001 WI App 258, ¶ 16, 248 Wis. 2d 820, 839-840, 637 N.W.2d 447, 456-457 (injunction prohibiting loitering in doorways, at bus stops, and by pay phones clear and gave fair notice). Moreover, Trigueros has pointed out no authority that gives him a right, as a convicted drug offender on probation, to associate with drug traffickers during the period of his probation. See Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995). Indeed, as we have pointed out and as the trial court recognized, staying away from drug traffickers is part of his rehabilitation and is consistent with the trial court's sentencing rationale of protecting the public.

By the Court. — Judgment and order affirmed.

        State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, was decided after Trigueros was sentenced. Gallion in haec verba applies only to "future cases." See id., 2004 WI 42, ¶ 76, 270 Wis. 2d at 572, 678 N.W.2d at 214 ("In sum, we reaffirm the standards of McCleary [v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971),] and require the application to be stated on the record for future cases.") (emphasis added). Nevertheless, Trigueros's sentencing passes muster under Gallion's gloss on McCleary and its progeny as well. See State v. Stenzel, 2004 WI App 181, ¶ 9, 276 Wis. 2d 224, 233, 688 N.W.2d 20, 24 ('While Gallion revitalizes sentencing jurisprudence, it does not make any momentous changes.").

       In an argument undeveloped beyond mere contention, Trigueros also claims that the trial court's failure to consider the appropriate sentencing factors renders his sentence "excessive." Insofar as this argument incorporates Trigueros's argument that the trial court did not consider the appropriate sentencing factors, we have addressed it; to the extent that it goes beyond his sentencing-factor contentions, Trigueros does not develop it sufficiently for us to consider it. See Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995) (we will not review arguments that are "amorphous and insufficiently developed").

       Trigueros also alleges that the trial court erroneously exercised its discretion when it denied his postconviction motion for sentence modification. For the reasons discussed above, the trial court properly denied Trigueros's postconviction motion.


author: BROWN, J.

text:
    Metropolitan Builders Association of Greater Milwaukee, Plaintiff-Appellant, v. Village of Germantown, Defendant-Respondent.
    Court of Appeals

      No 2004AP1433.

      Submitted on briefs February 17, 2005.

      Decided April 13, 2005.

    2005 WI App 103
    (Also reported in 698 N.W.2d 301.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joshua L. Gimbel and Dereck R. Brower of Michael Best & Friedrich LLP of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Raymond J. Pollen and Amy J. Doyle of Crivello, Carlson & Mentkowski SC of Milwaukee.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   BROWN, J.

¶ 1. This case involves a dispute over the use of impact fees that the Village of Germantown assessed on developers. The Village collected these fees for an Aquatic Center/Youth Center. Originally, it had contemplated a regular swimming pool, but it decided to build a spray ground — a playground with water — after voters rejected the swdmming pool proposal. The Metropolitan Builders Association of Greater Milwaukee (MBA), an organization whose members include developers that paid the impact fees, challenged the permissibility of applying the fees to this new purpose. They want the money returned to the current owners of the affected lots. We hold that MBA has standing to make this challenge on behalf of its developer members based on the association standing rule our supreme court announced in Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975) (hereafter WED). We further hold that a spray ground is within the intended purpose of the impact fees: to build some sort of recreational or youth facility. Finally, we conclude that the Village may apply the collected funds only to the proportion of the cost attributable to development. It must return any excess to the current lot owners.

¶ 2. In April 1992, the Village resolved to prepare a preliminary study of potential impact fees to defray expenditures required for capital improvements that would be necessary to maintain the level of current municipal services for a rapidly growing population. The following month, the Village administrator sent a memorandum to the Village president and trustees, observing that Village staff had met on numerous occasions to discuss potential impact fees. One category for which the Village contemplated such a fee was a recreational facility, possibly including a municipal swimming pool.

¶ 3. At roughly the same time, the Village's Swimming Pool Ad Hoc Advisory Committee began to explore several issues relating to the construction of an aquatic facility. In particular, it considered the design, potential funding sources, and the advantages and disadvantages of constructing a public outdoor swimming pool. Having determined that the community favored such a facility, the committee elected to continue researching the feasibility and costs of such a project. It pursued its efforts into at least 1993.

¶ 4. In 1995, the Village prepared a park and recreation needs assessment. The Needs Assessment read in part:

3. VILLAGE AQUATIC CENTER/YOUTH CENTER. (a) Inventory of Existing Swimming Pool; Current Deficiency. Since the Village has no swimming pool or youth center, the current deficiency is 100%.
(b) Indentif[ication] of Swimming Pool/Youth Center Facilities Required Because of Growth. The life expectancy of a swimming pool and/or youth center is 25 years and the facilities are being sized to accommodate the year 2020 population; i.e. 26,406. On this basis the estimated cost of the project and the amount subject to the Aquatic Center/Youth Center impact fee is determined as follows:
Year 2020 population 26,406
Less 1994 population - 15,486
Growth 10,920 or 41.35% subject to impact fee
Aquatic Center/Youth Center Cost $1,800,000
Less deficiency: (58.65%) - 1,055,700
Estimated cost subject to impact fee $ 744,300

The total park and recreation impact fees came to $613.32 per residential unit, and $188.81 represented the portion attributable to the Aquatic Center/Youth Center.

¶ 5. The Village responded with an impact fees ordinance that adopted the Needs Assessment's $613.32 park and recreation impact fee. See Village of German-town, Wis., Ordinance § 3.14 (1995). Section 3.14(4) of the ordinance requires the Village to place the fees in an interest-bearing account separate from other Village revenues and to spend them only on the capital costs for which the Village imposed them. Cf. Wis. Stat. § 66.0617(8) (2003-04) (statute regulating impact fees, imposing same requirements). The ordinance provides that if the Village fails to expend the collected funds for these purposes within seven years, it must return them to the current owners of the lots on which it assessed them. See Village of Germantown, Wis., Ordinance § 3.14(5)(b) and (c); cf. Wis. Stat. § 66.0617(9) (municipality must return fees not used for intended purpose within reasonable time to current owners of affected lots).

¶ 6. On November 3, 1998, the Village held a referendum asking the voters to decide whether it should appropriate funds for a swimming pool/aquatic center. The $1.8 million cost projected in the Needs Assessment had grown to $2.97 million. Pursuant to the ordinance, impact fees would only cover 41.35% of the cost. The voters rejected the proposal. A May 1999 referendum on the issue produced the same result.

¶ 7. By 2001, the Village had collected approximately $103,000 for the Aquatic Center/Youth Center that would have to be returned if not used by the seven-year deadline. As a result, in early 2002, the Village began to explore other ideas for the proposed aquatic or youth center. It proposed a spray ground in March. A spray ground is essentially a playground with giant water sprinklers. It has water features typically found in the beach entry portion of an aquatic center but without standing water. The water and chlorination system is similar to that used in a traditional pool. In April, the town's finance committee approved "the use of aquatic center fees for a spray ground aquatic facility." The Village extended the seven-year time limit by two years to allow for implementation of the spray ground construction.

¶ 8. MBA challenged this alternative use of the fees, invoking Village op Germantown, Wis., Ordinance § 3.14(6), which allows developers who want to contest the collection, use or amount of impact fees to file an appeal to the Village Board. See also Wis. Stat. § 66.0617(10) (requiring municipalities to implement such a procedure). MBA is a not-for-profit trade association whose membership comprises home builders. Some of these developers do business in the Village and have paid impact fees for the Aquatic Center/Youth Center. The organization's purposes include advocating affordable housing and monitoring municipalities' compliance with impact fees ordinances, which it claims "directly impact a[n] MBA member's cost of construction, proposed development, and marketing." According to MBA, when developers pass these costs on to their consumers, the end result adversely affects the affordability of the end product.

¶ 9. In response to MBA's challenge, the Village adopted a resolution denying its appeal. The resolution stated the Village's conclusion that "the spray ground, which is an aquatic recreational opportunity," fell within the ambit of permissible uses for the fees. It also declared that MBA lacked standing to challenge the fees because it did not qualify as a developer within the meaning of Village of Germantown, Wis., Ordinance § 3.14(6). MBA subsequently requested a hearing before the Village Board. The Village granted its request but limited the hearing to the standing issue. Ultimately, the Village affirmed its previous resolution that the MBA lacked standing.

¶ 10. Following this determination, MBA filed a complaint with the circuit court for certiorari and declaratory relief. The circuit court denied relief both on the merits and based on MBA's lack of standing. MBA appeals.

¶ 11. When this court reviews a certiorari action, we review the municipality's decision rather than that of the circuit court. See Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 3, 239 Wis. 2d 542, 620 N.W.2d 438 (purpose of certiorari review to test the validity of an agency's decision). The scope of our review extends only to examining whether the Village (1) kept within its jurisdiction, (2) properly applied the law, (3) acted arbitrarily or unreasonably or according to its will and not its judgment, and (4) made a decision based on evidence one might reasonably use to make the relevant determination. Id. We will uphold the Village's factual findings so long as sufficient evidence supports them, even if other evidence would support the opposite conclusion. See CBS, Inc. v. LIRC, 219 Wis. 2d 564, 567 n.3, 579 N.W. 2d 668 (1998).

¶ 12. MBA's right to challenge the use of the impact fees for a spray ground implicates the second of the four considerations above. Standing presents a question of law for our de novo review. Chenequa Land Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, ¶ 12, 275 Wis. 2d 533, 685 N.W.2d 573 (hereafter Chenequa).

¶ 13. We conclude based on WED that MBA has standing so long as any of its developer members has the right to challenge the use of the impact fees. In WED, our supreme court stated that the Wisconsin rule of standing had two parts: first, whether the challenged action caused direct injury to the petitioner's interest and second, whether the interest affected was one recognized by law. See WED, 69 Wis. 2d at 10. Noting that federal cases constitute persuasive authority, the court observed the similarity of the federal test, which asked (1) whether the challenged action resulted in injury in fact and (2) whether the injured interest arguably fell within the zone of interests protected by the statute or constitutional guarantee in question. See id. at 10-11.

¶ 14. The WED court recognized a special variation of this standing rule for associations when it allowed an organization devoted to environmental protection and preservation to sue, provided it could demonstrate sufficient facts on remand to show that a member of the organization could have sued. See id. at 17, 20. The court so ruled notwithstanding the fact that WED alleged no injuries to its organization but rather asserted only the environmental interests of members who lived in an area affected by natural gas use regulations. See id. at 18-20. Thus, as long as members of WED could meet the two-part standing test just described, WED could stand in their shoes. Similarly, we conclude MBA may stand in the shoes of its members.

¶ 15. Compelling policy considerations bolster our conclusion that we should recognize MBA's standing. WED indicated that the courts should construe the law of standing in Wisconsin liberally and recognized that public policy should play a role in that construction. See id. at 13; see also Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, ¶¶ 38, 45-47, 244 Wis. 2d 333, 627 N.W.2d 866. Although the court in Milwaukee District Council 48 recognized that a labor union had interests of its own that sufficed to confer standing, it cited public policy and the mandate to construe standing rules liberally as independent reasons supporting standing. Id., ¶ 38 n.7. It noted that although theoretically "thousands of the union's vested members could have filed suit as individuals" to seek a declaration of their due process rights in connection with the possible denial of their pensions, they instead chose to take collective action through the union. Id., ¶ 45; see also id., ¶ 45 n.8 (citing the three-part test for association standing set forth in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) as persuasive authority). It further noted that few individuals were in a position to assert that both termination for cause and termination of pension benefits were imminent. Id., ¶ 46. Waiting until they could do so would defeat the purpose of declaratory judgment, according to the court, because by that point, the status quo might be irretrievably shattered. See id. The court concluded that "judicial economy and common sense dictate that the union is authorized to seek a declaration of rights." Id., ¶ 47.

¶ 16. We have similar policy concerns here. First, although individual developers could all bring separate challenges to the use of the impact fees, judicial economy would suffer. It makes more sense for the Village to make only one determination about the propriety of using the impact fees, which the developers appeal to the circuit court in one petition for certiorari and declaratory relief. There is simply nothing to be gained from repeated litigation of the same issue. Second, we recognize that an individual developer may have disincentives to object. The objector may fear retaliation in the form of uncooperativeness with respect to zoning, building permits, and future development projects if the Village perceives it as a troublemaker. The ordinance allows developers to challenge use of the fees, and they can do so most effectively through collective action.

¶ 17. The Village argues that we should not apply the WED association standing rule. It observes that in an action for declaratory judgment, Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982), requires four factors to be satisfied before courts consider the case justiciable. With respect to the third factor, which requires a party to have an interest in the controversy, id., the Village notes that the courts have required a party to show a personal stake in the controversy. According to the Village, Village of Slinger v. City of Hartford, 2002 WI App 187, ¶ 12, 256 Wis. 2d 859, 650 N.W.2d 81, and Lake Country Racquet & Athletic Club, Inc. v. Village of Hartland, 2002 WI App 301, ¶ 19, 259 Wis. 2d 107, 655 N.W.2d 189 (hereafter Lake Country), require this stake to be pecuniary in nature. It further cites Chenequa for the proposition that this personal stake standing requirement differs from the standing test in WED. It seizes on the following language: "A somewhat different formulation [of the standing test] has been used when determining whether a person has standing to appeal an administrative agency decision under Wis. Stat. ch. 227 ...." See Chenequa, 275 Wis. 2d 533, ¶ 15. The Village reads this statement to mean WED applies only to standing based on Wis. Stat. ch. 227.

¶ 18. We reject the Village's argument. First, nothing in WED purported to limit the court's standing rules to Wis. Stat. ch. 227 cases or even other administrative review appeals. Rather, it characterized its two-part standing test as "[t]he Wisconsin rule of standing." See WED, 69 Wis. 2d at 10. The court observed that the requirements in Wis. Stat. §§ 227.15 and 227.16(1)— which required a person to be "aggrieved" and "directly affected" — essentially required the party to demonstrate "a direct effect on his legally protected interests," see WED, 69 Wis. 2d at 9, language nearly identical to that in the two-part test, see id. at 10. If anything, the court appeared to recognize the similarity between normal standing rules and standing requirements in ch. 227. Moreover, although most of the federal decisions WED relied upon as persuasive authority for its association standing rule involved appeals from administrative proceedings, at least one, Sierra Club v. Leslie Salt Co., 354 F. Supp. 1099 (N.D. Cal. 1972), did not.

¶ 19. Second, the Village misreads Chenequa. In Chenequa, we expressed the personal stake factor in declaratory judgment actions as a "logical nexus" requirement. See Chenequa, 275 Wis. 2d 533, ¶ 14 (noting that Madison General Hospital Ass'n v. City of Madison, 71 Wis. 2d 259, 265, 237 N.W.2d 750 (1976), a declaratory judgment action, had employed the "logical nexus" test, which requires that the plaintiff "must have suffered some actual or threatened injury from the allegedly illegal action and there must be a logical nexus between the status of the plaintiff and the claim sought to be adjudicated"). By contrast, the court characterized WED's formulation as requiring that the "injury in fact and the interest injured must be one protected by law, that is, arguably within the zone of interests to be protected or regulated by the statute or constitutional provision in question." See Chenequa, 275 Wis. 2d 533, ¶ 15.

¶ 20. Although the court did call WED's test "[a] somewhat different formulation," Chenequa, 275 Wis. 2d 533, ¶ 15, it made clear that the difference was purely semantic:

We view the "logical nexus" requirement and the "arguably within the zone of interests sought to be protected" requirement as essentially equivalent: both require that the actual or threatened injury be to an interest that is arguably protected by the statutory or constitutional law upon which the plaintiff bases the claim for relief. Because this suit challenges the actions of DOT ... we will use the "zone of interests" terminology.

Id., ¶ 16 (emphases added). Given that Chenequa involved a request for declaratory judgment and was not a Wis. Stat. ch. 227 review case, Chenequa, 275 Wis. 2d 533, ¶¶ 1, 7, we do not see how WED's standing test can be relegated to the context of ch. 227 review. Further, if the general standing test is the same in both ch. 227 review and other declaratory relief actions, we see no reason to limit the association standing rule to the former. As long as individual developers would have a personal stake in the controversy, MBA may contest the use of impact fees on their behalf.

¶ 21. We determine that individual developers subject to the impact fees do have the right to bring their own separate challenges. Although the Village does not raise the issue, it is worth noting that our legislature has made that decision for us. Village of Germantown, Wis., Ordinance § 3.14(6), the ordinance that permits developers to challenge the use of impact fees, appears to have been passed pursuant to Wis. Stat. § 66.0617(10). Section 66.0617(10) states in pertinent part:

A political subdivision that enacts an impact fee ordinance under this section shall, by ordinance, specify a procedure under which a developer upon whom an impact fee is imposed has the right to contest the amount, collection or use of the impact fee to the governing body of the political subdivision.

This law reveals a legislative determination that developers have an important enough interest in the process of raising and expending the fees to deserve to be heard.

¶ 22. MBA observes that impact fees directly affect its members' construction, marketing, and proposed development costs, ultimately forcing them to pass on these costs to their consumers, which makes the end product less affordable. Considerations of this sort likely influenced our legislature's conclusion that developers had an important interest in the use of impact fees. See Wis. Stat. § 66.0617(4)(a)3. (requiring needs assessments for impact fees to include "an estimate of the effect of... impact fees on the availability of affordable housing within the political subdivision"). In any event, we will not disturb this legislative fact. See State v. Flood, 195 Wis. 2d 515, 531, 536 N.W.2d 458 (Ct. App. 1995) (describing legislative facts as facts that legislative or administrative bodies determine through the legislative process and rely upon in making law and policy).

¶ 23. Because we deem the legislature's judgment conclusive on the issue of the developers' standing, we need not separately apply our standing case law. We do, however, wish to emphasize that our decision does not contradict anything in Village of Slinger or Lake Country. We reject the Village's apparent characterization of these cases as requiring a plaintiff to show an injury to a pecuniary interest as a prerequisite to standing in all declaratory judgment cases.

¶ 24. Lake Country and Chenequa make clear that both pecuniary and nonpecuniary injuries may suffice to give a claimant a personal stake in the controversy. We quote the following language in Lake Country.

In Village of Slinger... the court of appeals held that in order to have standing to bring a declaratory judgment action, a party must have a personal stake in the outcome and be directly affected by the issue in controversy. This is measured by whether the claimant has sustained, or will sustain, some pecuniary loss or otherwise will sustain a substantial injury to his or her interests. Here, Lake Country has failed to bring forth any facts demonstrating any pecuniary loss or the risk of any substantial injury to its interests.

Lake Country, 259 Wis. 2d 107, ¶ 17 (citations omitted; emphases added). Similarly, Chenequa recognized that a variety of injuries could fulfill the personal stake in the controversy requirement. "The injury asserted must be such that it gives the plaintiff a personal stake in the outcome of the controversy. The injury need not be pecuniary; it may, for example, be an injury to interests that are aesthetic, conservational, or recreational." Chenequa, 275 Wis. 2d 533, ¶ 17 (citation omitted).

¶ 25. Lake Country lacked standing not because it failed to assert a pecuniary injury but because it failed to allege any injury whatsoever. It simply disagreed with the Village of Hartland's decision to convey Village property to the YMCA and to rezone the parcel to allow the YMCA to operate a recreational facility. Lake Country, 259 Wis. 2d 107, ¶¶ 1-5, 23. Here the legislature obviously recognized that developers have an interest of some sort. Based on Lake Country and Chenequa, it makes little difference whether that interest is pecuniary or nonpecuniary in nature.

¶ 26. Although Village of Slinger, 256 Wis. 2d 859, ¶ 9, did say that a "taxpayer must have sustained, or will sustain, some pecuniary loss before he or she has standing," we observe that impact fees are not general tax revenues to be used for any purpose. See Wis. Stat. § 66.0617(8) (impact fees revenues to be placed in separate account and accounted for separately from other funds and spent only on capital costs for which the municipality imposed them). We read Village of Slinger and Lake Country to stand only for the proposition that mere status as a taxpayer or property owner does not suffice to confer standing. See Village of Slinger, 256 Wis. 2d 859 ¶ 9 (taxpayer with pecuniary loss has standing), ¶ 17 (noting that landownership did not create a right to dictate development of neighboring property); Lake Country, 259 Wis. 2d 107, ¶¶ 14, 16, 20 (rejecting Lake Country's contention that "its status as a village taxpayer and property owner confers standing to prosecute this action"). Thus, these cases are largely inapposite. Developers who wished to sue would not need to invoke their taxpayer or landowner status when they could simply assert their legislative standing rights based on the impact fees ordinance and statute.

¶ 27. Having determined that MBA has standing, we now reach the merits. Both parties agree that the Village must spend the impact fees "only for capital costs for which the impact fees were imposed." See Village of Germantown, Wis., Ordinance § 3.14(4); Wis. Stat. § 66.0617(8). They simply disagree about what constitutes "the capital costs for which the impact fees were imposed." MBA maintains that the language refers to the costs of a particular $1.8 million swimming pool, while the Village contends that it merely intended to raise funds for a specific category of facility, an aquatic or youth recreational facility, and intended to work out the particular details later.

¶ 28. We must construe the ordinance in order to resolve this dispute. The meaning of an ordinance is a question of law that we review independently of the circuit court. See Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis. 2d 633, 660 N.W.2d 656. We interpret municipal ordinances the same way we read statutes. Id. First we look at the language of the ordinance. Id., ¶ 7. We give words their common and ordinary meaning, and if that meaning is clear, we simply apply the ordinance to the facts using that plain meaning without resorting to rules of statutory construction. Id., ¶¶ 7, 8. If, however, the ordinance is ambiguous, we attempt to discern the legislative intent from the ordinance's scope, history, context, subject matter and purpose. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 29. In this case, the plain language of the ordinance does not unequivocally favor either construction. Village of Germantown, Wis., ORdinance § 3.14(1) and (5) are the only provisions that specifically deal with the purposes for which the Village intends to expend the fees. Neither mentions either aquatic and youth facilities generally or swimming pools in particular. Rather, they impose $613.32 fees for parks, playgrounds and other recreational facilities. See § 3.14(1) and (5).

¶ 30. Because the ordinance is ambiguous, we look to extrinsic sources to determine the drafters' intent. We next examine the history of the impact fees ordinance. Significantly, the $613.32 that the ordinance imposed for parks and recreation was the same amount the 1995 Needs Assessment allocated to that purpose. Thus, we assume that the Village intended its ordinance to incorporate the Needs Assessment.

¶ 31. The language in the Needs Assessment reveals that the Village intended to exact impact fees not for a specific facility but rather for a specific kind of facility, namely one devoted to youth or aquatic entertainment. We focus on several provisions, turning first to § 3, much of which we have quoted above. Section 3, entitled "VILLAGE AQUATIC CENTER/YOUTH CENTER," assesses in para, (a) the current deficiency of an "Existing Swimming Pool," concluding, that "[s]ince the Village has no swimming pool or youth center, the current deficiency is 100%." (Emphasis added.) Similarly, para, (b) — which identifies "Swimming Pool/Youth Center Facilities Required Because of Growth"— observes that "The life expectancy of a swimming pool and/or youth center is 25 years ...." (Emphasis added.) Accordingly, it estimated an "Aquatic Center/Youth Center Cost." Section 3(c) computes an "Aquatic Center/Youth Center Fee." Finally, Section 4, which summarizes the fees, allocates $188.80 of the $613.32 park and recreation impact fees to an "Aquatic Center/Youth Center." Moreover, the Needs Assessment says nothing about a $1.8 million swimming pool. Although it does twice mention a $1.8 million cost estimate, it again refers to the proposal in very general terms as an aquatic center or aquatic center/youth center.

¶ 32. MBA seizes on the work of the "Swimming Pool Ad Hoc Advisory Committee" prior to the filing of the Needs Assessment as evidence that the Village contemplated using the impact fees only for a swimming pool; we determine that such an inference is misplaced. The fact that the committee provided sketches of a particular design in its final report does not signify that this was the only design it considered, as opposed to merely being "Plan A." Indeed, language in the report makes clear that even this plan was not carved in stone; rather, important details remained open to revision. "When looking at a possible comprehensive design for an Aquatic Center, another consideration may be the inclusion of a 'community center-type building within the overall scheme of things. Such a building is generally viewed as being a year around, multi-purpose facility." (Emphasis added.)

¶ 33. Further, the report commented that the " 'community center' type" building could be a "center of community activities" if "integrated into the design of an Aquatic Center, or if merely constructed in the same vicinity." Given that the sketches showed an outdoor pool and that the quoted language referred to multiple purposes for the community center building, we assume the committee contemplated the building to create recreational opportunities other than swimming. In view of the fact that Wisconsin weather precludes outdoor swimming for most of the year, we presume the committee contemplated that these other recreational opportunities would be primary in all but the warmest months. We do not see why the Village could not follow the committee's lead in remaining open to varied recreational options for its proposed facility.

¶ 34. Moreover, even if we assume the committee had a specific design in mind, that does not mean the Village confined itself to this idea. We note that although the committee's final report used the term "aquatic center" and referred to swimming pools in various places, it did not anywhere refer to a "youth center." We deem it significant that the Needs Assessment employed broader language. We conclude from the foregoing that although the Village certainly entertained the swimming pool idea, it merely considered it an obvious and likely choice among other choices, some perhaps yet to be contemplated.

¶ 35. We also consider the ordinance against the legislative backdrop of Wis. Stat. § 66.0617, the statute that allows municipalities to enact ordinances that levy impact fees on developers to pay for the capital expenses necessary to accommodate new development. See § 66.0617(2). Section 66.0617(9), which mandates that municipalities that do not use the fees for their contemplated purposes within a reasonable time return those fees to the owners of the affected properties, reads in pertinent part:

The ordinance shall specify, by type of public facility, reasonable time periods within which impact fees must be spent or refunded .... In determining the length of the time periods under the ordinance, a political subdivision shall consider what are appropriate planning and financing periods for the particular types of public facilities for which the impact fees are imposed. (Emphases added.)

Section 66.0617(6) imposes standards for impact fees and demands that the fees be "based upon actual capital costs or reasonable estimates of capital costs." See § 66.0617(6)(c) (emphasis added). Similarly, § 66.0617(4)(a)3. requires a Needs Assessment to provide a "detailed estimate" of the capital costs the municipality will incur. (Emphasis added.)

¶ 36. Because these various statutory provisions all deal with the process of imposing and using impact fees as their subject matter, we read them in pari materia and attempt to harmonize them. Cf. R.W.S. v. State, 162 Wis. 2d 862, 871, 471 N.W.2d 16 (1991) (courts to read multiple statutes in same chapter in pari materia and attempt to harmonize them). We interpret these provisions to allow a municipality to impose impact fees for a general type of facility, such as an aquatic or youth center, without committing itself to any particular proposal before charging the fees. The needs assessment must simply contain a good-faith and informed estimate of the sort of costs it expects to incur for the kind of facility it plans to provide. It would be absurd to assume that the "detailed estimate," Wis. Stat. § 66.0617(4)(a)3. (emphasis added), required as part of the needs assessment must be based on a single, detailed proposal if the municipality could subsequently pass an ordinance specifying only the general type of facility it intends to build. See State v. Delaney, 2003 WI 9, ¶ 15, 259 Wis. 2d 77, 658 N.W.2d 416 (reasonable constructions favored over those that lead to absurd results). It is the ordinance that actually imposes the fees, not the needs assessment. If the legislature intended to make a concrete proposal a prerequisite to imposing impact fees, it would have required such particularity in the former, not the latter. We therefore reject MBA's contention that if the Village based its Needs Assessment estimate on the cost of a swimming pool, it was obligated to construct only a swimming pool costing approximately $1.8 million or return the money.

¶ 37. Finally, we consider the purpose of impact fees as evidence of the Village's intent in passing the impact fees ordinance. The preamble to the ordinance made clear that the Village intended the fees to "partially defray the cost of new development." Similarly, Wis. Stat. § 66.0617(2) cites accommodating land development as its purpose for authorizing municipalities to impose impact fees. The Needs Assessment directly addressed that purpose when it observed that the lack of a community swimming pool or youth center created a 100% deficiency in existing facilities. Obviously, the Village was concerned that in light of new development, new recreational opportunities would be necessary. We do not see why the particular details of that recreation are important to that purpose. Whether the Village chose to provide a youth center, a form of water recreation, or some combination of the two, population growth drove that decision.

¶ 38. Even more importantly, in order to effectively pursue this goal of providing new facilities to accommodate growth, a municipality must be allowed flexibility to deal with the contingencies inherent in such planning. Obviously, even reasonable cost estimates sometimes turn out to be wildly different from actual costs. In this case, a $1.8 million estimate turned out to be roughly $1.17 million too low. In light of this change, the Village only had two options available. It could stick with its original plan to construct a swimming pool — against the wishes of the taxpayers, who were still responsible for the majority of the now $2.97 million cost — or change the details of the proposal so that it could stay within budget. MBA's position that the only permissible use of the fees money is an approximately $1.8 million swimming pool appears to prohibit the Village from pursuing either course. We conclude, however, that the legislature, by its language, respected the importance of flexibility in the planning process. Again, Wis. Stat. § 66.0617(9) requires impact fees ordinances to specify only the type of facility for which they imposed the fees.

¶ 39. We hold that a spray ground falls within the broad "Aquatic Center/Youth Center" language in the Needs Assessment on which the Village based its impact fees ordinance. We assume it is readily apparent that a playground with giant water sprinklers is a youth-centered recreational opportunity. That fact suffices to legitimate the spray ground expenditure, given that the Needs Assessment referred to "aquatic center" and "youth center" disjunctively. Nonetheless, we note that the spray ground also offers "aquatic" recreation because the activities at such a facility "tak[e] place in or on water." See Merriam-Webster's Collegiate Dictionary 58 (10th ed. 1997) (definition of "aquatic").

¶ 40. MBA claims that even if a spray ground qualifies as an aquatic/youth opportunity, expending the fees on a spray ground is still illegal on the basis that it offends Wis. Stat. § 66.0617(4) and (6). Its argument appears to be three-fold. It first contends that because the Village did not conduct a new needs assessment, pursuant to § 66.0617(4)(a), it could not show that a spray ground "bear[s] a rational relationship to the need for new, expanded or improved public facilities that are required to serve land development." See § 66.0617(6)(a).

¶ 41. We reject this argument. Wisconsin Stat. § 66.0617(4)(a) did not require a new needs assessment when the Village adopted the spray ground as "Plan B" after the voters rejected the swimming pool. Although that section does require a revised assessment when a municipality amends its ordinance by changing the public facilities for which it collects the fees, no such change happened here. As we explained above, the facility the Needs Assessment identified was an aquatic/youth center as a general concept, not a swimming pool in particular. Because it was this general category of facility for which the Needs Assessment found a deficiency, the Village's decision to construct a facility of that sort is rationally related to remedying that deficiency. Again, the particular details of the proposal are not important to the objective of ensuring that a growing population has something to do for recreation.

¶ 42. MBA also appears to focus on the difference in projected cost between a swimming pool and a spray ground as evidence that no rational relationship exists: "[A] $1.8 million Aquatic Center/Youth Center, not a[n] approximate $150,000 Spray Ground was required to serve land development." We conclude otherwise. The cost of a swimming pool versus a spray ground does not determine whether or to what extent either addresses a deficiency in recreational opportunities. A more economical option does not necessarily serve fewer people.

¶ 43. MBA lastly points to the failed referenda as proof that an aquatic facility was not required to accommodate new development. Again, we disagree. The voters may well have rejected the construction of a swimming pool based on the inflated price tag — or some other reason — rather than an aversion to new recreational facilities. In any event, we will not speculate about what the "no" votes meant.

¶ 44. Although we conclude that the Village has the right to spend impact fees on the spray ground, we must also address how much of the cost it may legally offset with those fees and what happens to any excess. These issues, like the others, present matters of law for our de novo review. See State v. Brandt, 226 Wis. 2d 610, 618, 594 N.W.2d 759 (1999) (application of a set of facts to the appropriate legal standard is a question of law for our independent review).

¶ 45. We agree with MBA that the Village may offset only 41.35% of the cost with impact fees. Wisconsin Stat. § 66.0617(6)(b) declares that impact fees imposed "[m]ay not exceed the proportionate share of the capital costs that are required to serve land development, as compared to existing uses of land within the political subdivision." See also § 66.0617(2) (authorizing municipalities to enact impact fees ordinances "to pay for the capital costs that are necessary to accommodate land development" (emphasis added)). The clear import of these provisions is to authorize municipalities to hold developers responsible only for the portion of capital costs whose necessity is attributable to their developments. Even if a spray ground costs significantly less than the original proposal, the Village cannot expect developers' money to subsidize the existing residents' proportionate share of the costs. The Village's Needs Assessment clearly identifies only 41.35% of the estimated 2020 population as attributable to growth.

¶ 46. If the impact fees revenues exceed the developers' proportionate share of the capital costs of the spray ground, the Village must return those fees to the current owners of the properties for which developers paid the fees. See Village of Germantown, Wis., Ordinance § 3.14(5)(c) ("Impact fees ... not used to pay the capital costs for which they were imposed within the time periods prescribed in par. (b) above shall be refunded to the current owner of the property with respect to which the impact fees were imposed."); Wis. Stat. § 66.0617(9) (ordinances to specify a "reasonable period of time" in which to spend the fees or refund the money to the "current owner of the property with respect to which impact fees were imposed").

¶ 47. We reject the Village's position that it may hold on to the impact fees it collected for the Aquatic Center/Youth Center until nine years have expired because it may think of other aquatic or youth recreational opportunities in the interim. Section 3(b) of the Needs Assessment reads in pertinent part, "The life expectancy of a swimming pool and/or youth center is 25 years ...." (Emphasis added.) It then estimates the cost of an "Aquatic Center/Youth Center," not "Aquatic/Youth Centers." Section 4, which describes the breakdown of the park and recreation impact fees also refers to an "Aquatic Center/Youth Center" in the singular. The Needs Assessment clearly contemplated only one Aquatic Center/Youth Center.

¶ 48. We reverse the portion of the circuit court's judgment that denies MBA standing. MBA is an association whose members include developers, so it may contest the Village's use of impact fees as long as an individual developer could have brought its own challenge. Although we uphold the judgment to the extent that it recognized the spray ground as a proper use of the Aquatic Center/Youth Center impact fees money, we hold that the Village may only use the fees to cover developers' proportionate share of that cost. It must return any leftover funds to the current owners of the properties on which it assessed the fees.

By the Court. — Judgment affirmed in part and reversed in part.

       All references to the Village of Germantown, Wis., ORDINANCE are to the 1995 version unless otherwise noted.

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

       Our holding is consistent with federal case law that addresses the standing of an organization. Cf. Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 11, 230 N.W.2d 243 (1975) (federal case law persuasive as to what standing rules should he). The federal courts allow an association to bring suit on behalf of its members when (1) the members would otherwise have standing to sue on their own, (2) the interests the association seeks to protect are germane to the association's purpose, and (3) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).
      In this case, the federal three-part test would favor standing. First, as we explain below, individual developers would have the right to sue on their own behalf. Second, protecting developers' interest in proper use of the impact fees is germane to MBA's mission to advocate for affordable housing, because impact fees can affect the affordability of housing. See Wis. Stat. § 66.0617(4)(a)3. (requiring needs assessments for impact fees to include "an estimate of the effect of... impact fees on the availability of affordable housing within the political subdivision"). Finally, determining whether the Village is using the collected impact fees for a proper purpose does not require the participation of individual developers. That determination does not change based on which developers paid the fees or even who paid how much, so individualized fact finding is unnecessary.
      Moreover, we do not think Village of Geemantown, Wis., Ordinance § 3.14(6) attempts to supercede association standing rules just because it expressly gives only developers the right to challenge the use of impact fees. In Pennell v. City of San Jose, 485 U.S. 1 (1988), the Court applied the three-part test when it allowed the Tri-County Apartment House Owners Association to challenge a rent-control ordinance on behalf of landowners who were members of the association. See generally id. at 4-8. The ordinance, which gave tenants who objected to certain rental increases the right to a hearing before a mediation hearing officer, entitled a tenant or landlord dissatisfied with the outcome of such hearing to pursue binding arbitration. Id. at 5-6. The fact that the ordinance in question named those specific classes of parties did not, however, preclude the United States Supreme Court from recognizing the standing of an organization to assert a claim on their behalf.

       These sections have been renumbered as Wis. Stat. §§ 227.52 and 227.53(1), with minor variations in language.

       Although we conclude that an individual developer would have no obligation to demonstrate a pecuniary stake in an action in which it challenged the use of the impact fees money, we note that such a showing may well be possible. As we noted above, the legislature may have considered evidence that impact fees affected developers' construction, marketing and proposed development costs; it is possible that a developer would offer similar evidence in court. Additionally, both the impact fees ordinance and our statutes require the Village to return impact fees that they do not use within a certain period of time to the current owners of the property. See Village of Germantown, Wis., ORDINANCE § 3.14(5)(b) and (c) (nine years, as amended); Wis. Stat. § 66.0617(9) ("within a reasonable period of time after they are collected"). Certainly, it is possible that a developer could be the current property owner entitled to the refund of fees.

       MBA asserts that the nine-year time limit expired on July 31, 2004. We will not consider that issue, however, because MBA did not raise it until its reply brief. See State v. Mechtel, 176 Wis. 2d 87, 100, 499 N.W.2d 662 (1993) ('We do not generally address arguments raised for the first time in reply briefs.").


author: LUNDSTEN, J.

text:
    State of Wisconsin ex rel. Oscar J. Williams, Petitioner, v. The Honorable Patrick J. Fiedler, presiding, Respondent.
    Court of Appeals

      No. 2004AP175-W.

      Submitted on briefs October 14, 2004.

      Decided April 14, 2005.

    2005 WI App 91
    (Also reported in 698 N.W.2d 294.)

      On behalf of the petitioner, the cause was submitted on the brief of Oscar J. Williams, pro se.

    On behalf of the respondent, the cause was submitted on the briefs of David C. Rice, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, EJ., Lundsten and Higginbotham, JJ.
   LUNDSTEN, J.

¶ 1. This case comes before us on a petition for a supervisory writ of mandamus. Oscar Williams filed a petition with Circuit Judge Patrick Fiedler requesting commencement of a John Doe proceeding. Under Wis. Stat. § 968.26 (2003-04), "[i]f a person complains to a judge that he or she has reason to believe that a crime has been committed" within the judge's jurisdiction, the judge must conduct an eviden-tiary hearing at which the complaining person testifies and may present other witnesses. In this case, the circuit judge reviewed Williams' petition and also obtained and reviewed police reports containing information casting doubt on assertions in the petition. The circuit judge rejected the petition, explaining that his review of the petition and the police reports led him to conclude that the petitioner "failed to allege facts sufficient to raise a reasonable belief that a punishable, or, for that matter provable, crime has been committed."

¶ 2. As will become clear, the circuit judge in this case applied his common sense and reasonably concluded that conducting a John Doe hearing would be a waste of time. Nonetheless, we grant the writ, and thereby effectively reverse, because the circuit judge reached this reasonable conclusion by assessing credibility and choosing between competing inferences. The John Doe statute, as interpreted in State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 615, 571 N.W.2d 385 (1997), does not permit this sort of analysis at the threshold stage of determining whether a John Doe petition contains reason to believe that a crime has been committed.

Background

¶ 3. Williams filed a petition for a John Doe proceeding under Wis. Stat. § 968.26. Williams' petition alleged that Joseph Heise attacked and beat him. The petition makes the following allegations:

• On December 18, 2002, after bar closing time at approximately 2:30 a.m., Williams was standing in a line outside a restaurant on State Street in Madison.
• Williams was approached by a panhandler, a man later identified as Joseph Heise.
• Heise asked for some change, and Williams told Heise to "go get a job."
• Williams, a black male, heard "a lot of heckling in the background from numerous college students, saying 'are you going to let that nigger talk to you like that?'"
• Williams was the only black person "in sight."
• Williams decided to leave and walked to a different restaurant, LaBamba's, "around the corner from where I had originally been."
• As Williams neared LaBamba's, he "heard running footsteps" behind him.
• Williams attempted to turn, and he was "met with a flying kick in the lower back" inflicted by Heise, a kick that caused Williams to fall to the ground.
• Heise told Williams that Heise would "kick [Williams'] black ass."
• "[T]wo other younger Caucasian men who appeared to be college students joined Heise, and Heise started to punch [Williams] in the face over and over again."
• All three men "took turns punching and hitting [Williams] in the head" while saying" 'nigger ... I'll kill your black ass ... don't ever talk back to a white man . ..' and other profanities."
• Williams was "in and out of consciousness, and last heard them say 'let's get out of here.'"
• Williams "stumbled" to his feet and noticed he "couldn't see, and that [his] eyes were beginning to feel heavy indicating that they were swollen shut."
• Williams walked to a food store, where an employee called "Fire Rescue," and he was transported to UW Hospital.

Williams' petition also asserts that the incident was investigated by the Madison Police Department "under incident report no. 2002-152973" and that the district attorney refused to pursue the matter.

¶ 4. After receiving Williams' petition, the circuit judge asked the district attorney to supply copies of police reports and also asked whether he considered filing charges. The district attorney responded with a letter and copies of several police reports. The district attorney stated in his letter to the judge that the case had apparently not been referred to his office but, having reviewed the materials, he did not believe there was a basis for proceeding with criminal charges against Heise.

¶ 5. The police reports sent to the circuit judge stated that officers located and interviewed both Williams and Heise shortly after the altercation that led to Williams' injuries. The reports state that at about 2:46 a.m. on the night Williams was taken to the hospital, a man named Joseph Heise approached a police officer near State Street. Heise gave an account to the police that, with notable exceptions, roughly tracked the account Williams provided to the circuit judge in his John Doe petition.

¶ 6. According to Heise, it was Williams who followed Heise to LaBamba's. Heise told police that Williams threatened Heise with a knife and that Heise defended himself by punching Williams in the face until Williams gave up his knife. Heise said he kicked the knife away and then put it under a nearby dumpster so his attacker would not have access to it. After giving this account to police, an officer took Heise to where Heise said the altercation occurred and Heise showed the officer the knife under the dumpster. The officer observed two small pools of blood, retrieved the knife, and observed the knife had blood on it. A subsequent test of the knife produced no fingerprint evidence.

¶ 7. The police reports indicate that during the time Heise was being questioned near State Street, an officer attempted to question Williams at the UW Hospital Emergency Room. The officer who interviewed Williams reported that Williams' face was bloody and swollen. Williams was treated for a broken nose and required stitches over one eye. The officer smelled a strong odor of intoxicants emanating from Williams. He observed that Williams was uncooperative with medical personnel, that Williams was angry and agitated, and that Williams alternated between being uncooperative and somewhat cooperative. Williams told the officer that he had been "jumped by some white boys" and gave a physical description of one of them. Williams said all three took turns striking him.

¶ 8. Williams was asked whether a weapon was involved. He said: "Yeah. No knife." He described the weapon as a "billy-jack," but would not further describe the weapon. The officer wrote that a "billy-jack" is an item filled with lead. The officer also wrote that, although Williams initially said that his assailants said nothing during the attack, when he was later asked if they said anything during the attack, Williams responded, "Nigger 'shit.'"

¶ 9. The police reports show that neither Williams nor Heise was arrested at the time, but an officer was assigned to do a follow-up investigation. This officer's efforts failed to locate either man. However, about two weeks later, on January 2, 2003, Williams was in court for an "unrelated" preliminary hearing. At that time, an officer asked Williams if he wanted to make a statement about the incident involving Joseph Heise. Williams told the officer he did not wish to make any statement.

¶ 10. About three weeks later, on January 23, 2003, an officer was dispatched to the county jail where Williams was incarcerated. Williams wanted to report an alleged battery committed by Heise against Williams about a week before Christmas. Williams said he waited to complain because he first learned Heise's full name when Williams was arraigned on charges stemming from an altercation he had with Heise on January 9, 2003.

¶ 11. After reviewing Williams' petition, the district attorney's letter, and the police reports, the circuit judge denied Williams' petition. The judge wrote:

The court notes from its review of the City of Madison incident report that the Madison Police Department did conduct an investigation of the allegations and that the petitioner was not cooperative. According to the incident report, there are no independent witnesses to corroborate the allegations made by the petitioner. The alleged assailant has cooperated with the police and indicated that the petitioner came at him with a knife and that the alleged assailant was acting in self-defense. Based upon my review of the incident reports, I am satisfied that a John Doe proceeding is not necessary, as it would simply be an effort to duplicate what the City of Madison Police Department has already done. I am further satisfied that a review of these materials and of the petition leads me to conclude that the petitioner has failed to allege facts sufficient to raise a reasonable belief that a punishable, or, for that matter provable, crime has been committed. Thus, in the exercise of my discretion, I'm DENYING the petition without an examination.

After receiving this decision, Williams filed a petition for a writ of mandamus asking this court to order that a John Doe hearing be held.

Discussion

¶ 12. Williams filed a petition under the John Doe statute with the circuit judge, requesting that the judge take Williams' testimony under oath. The John Doe statute, Wis. Stat. § 968.26, provides, in pertinent part:

If a person complains to a judge that he or she has reason to believe that a crime has been committed within his or her jurisdiction, the judge shall examine the complainant under oath and any witnesses produced by him or her ....

The supreme court has interpreted this language to mean that "once a John Doe complainant has shown that he or she has reason to believe that a crime has been committed, the judge has no discretion to refuse to examine the complainant." State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 615, 571 N.W.2d 385 (1997).

¶ 13. When determining whether a John Doe petitioner has alleged "reason to believe," circuit judges must apply an objective standard. A petitioner must "allege facts sufficient to raise a reasonable belief that a punishable crime has been committed." Id. at 618. Conclusory allegations are insufficient. Id. "[I]f a John Doe complainant, in his or her petition, presents only conclusory allegations, or fails to allege facts sufficient to raise a reasonable belief that a punishable crime has been committed, the circuit court judge may, in the exercise of his or her legal discretion, deny the petition without an examination." Id.

¶ 14. Williams' petition, viewed by itself, presents "reason to believe" that a crime was committed in the circuit judge's jurisdiction. Specifically, the petition presents Williams' firsthand account of the battery Heise allegedly perpetrated in Dane County in December of 2002. In Williams' telling of the incident, he did nothing to provoke the panhandling Heise, except to tell Heise to get a job. According to Williams, Heise followed Williams as Williams left the area of the initial verbal confrontation, and Heise brutally attacked Williams with the assistance of two young men.

¶ 15. The circuit judge did not rule that Williams' petition, viewed in isolation, failed to allege facts constituting "reason to believe" that a crime had been committed. Instead, the judge's decision concludes that Williams' petition, considered in light of information in the police reports and the district attorney's letter, does not, in the words of the judge's written decision, "allege facts sufficient to raise a reasonable belief that a punishable, or, for that matter provable, crime has been committed."

Reason to Believe

¶ 16. We first address the circuit judge's argument that a "provable" crime was not alleged. The judge argues, in effect, that he was entitled to consider the chances of a successful prosecution when deciding whether the petition met the "reason to believe" standard.

¶ 17. The judge contends he reasonably interpreted the John Doe statute as requiring Williams to make a showing that a "provable" crime was committed. The judge explained in his written decision that there were no witnesses to corroborate Williams' allegations. He also noted that Heise cooperated with the police and told police that he acted in self-defense when Williams came at him with a knife. Finally, the judge expressed his belief that a John Doe proceeding would "simply be an effort to duplicate what the City of Madison Police Department has already done." To this list we could add that the reports say that Heise voluntarily approached the police about the incident and that Williams was intoxicated, uncooperative, and inconsistent.

¶ 18. We understand the circuit judge's use of the word "provable" to mean that the information in the police reports persuaded him that there was essentially no chance a judge or jury would find, beyond a reasonable doubt, that Heise committed a crime. The circuit judge argues that he "reasonably afforded some deference to the charging decision of the district attorney" and that he reasonably decided, based on all the information before him, that there was "insufficient objective evidence of a provable crime." Under these circumstances, according to the judge, the "reason to believe" standard is not met because there is no showing that a "provable" crime had been committed.

¶ 19. We agree that it was reasonable for the circuit judge to predict that Williams would not succeed in persuading a fact finder that Heise is guilty beyond a reasonable doubt. But we think the John Doe statute precludes this sort of assessment by the judge at the petition stage. Indeed, the circuit judge's appellate brief aptly sums up the issue:

At its core, this case requires [the court of appeals] to decide if Judge Fiedler properly determined that Williams failed to satisfy the objective, threshold requirement for commencing a John Doe proceeding, or whether Judge Fiedler improperly weighed Williams' credibility or chose between conflicting facts and inferences.

¶ 20. In Reimann, the supreme court explained that when judges assess "reason to believe," they "should not weigh the credibility of the complainant or choose between conflicting facts and inferences." Id. at 625. Furthermore, Reimann teaches that the "reason to believe" standard is somewhat lower than probable cause. According to Reimann, the " 'John Doe complaint... need not name a particular accused; nor need it set forth facts sufficient to show that a crime has probably been committed. The John Doe is, at its inception, not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime ....'" Id. at 624 (quoting State v. Washington, 83 Wis. 2d 808, 822, 266 N.W.2d 597 (1978)).

¶ 21. The story Williams tells in his petition is a plausible account of a battery. The judge's negative assessment of Williams' story is based on information in the police reports strongly indicating that Heise's assertion of self-defense is more credible. In the words of the circuit judge's brief, this is a "classic 'he said-he said'" case, with the police reports indicating that the evidence would show Heise was more worthy of belief than Williams. Thus, we can only conclude that the judge's rejection of Williams' petition was a result of weighing Williams' credibility and choosing between conflicting facts and inferences, something prohibited by Reimann.

¶ 22. We readily acknowledge that the John Doe statute, as construed in Reimann, is subject to abuse. This case is a good example. Our review of the police reports leads us, like the circuit judge, to believe that it is a virtual certainty that examining Williams under oath will be a waste of judicial resources and, in this case, prison and law enforcement resources, since it appears Williams is currently serving a prison term. But our belief is based on the same type of credibility assessment the circuit judge must have engaged in. The John Doe statute, as interpreted in Reimann, does not permit this assessment at this threshold stage in the process. And, the circuit judge does not suggest a viable construction of the John Doe statute that would preserve its readily apparent purpose but limit the sort of abuse likely going on here.

Consideration of the Police Reports

¶ 23. As is apparent from the discussion above, if we assume the circuit judge properly considered the police reports, we nonetheless conclude the circuit judge erred when he denied Williams' petition without examining Williams under oath. Nonetheless, we briefly address the circuit judge's consideration of those police reports.

¶ 24. In an order requesting appellate briefing, we indicated that the circuit judge was free to make all arguments he believed supported his decision. But we specifically asked that the following question be addressed: Did the circuit judge properly consider "material extrinsic to the petition" in determining whether Williams' petition presented "reason to believe" within the meaning of the John Doe statute? Responding to our request, the circuit judge argues that his consideration of the police reports was proper for two reasons. We do not find either persuasive.

¶ 25. We understand the circuit judge's first argument to be this: Although the police reports were not attached to the petition, and even if the reports were not incorporated into the petition by reference, the judge's sua sponte acts of requesting the police reports and considering them is supported by the following language from Reimann-.

Where a mere technical error on the face of the petition, or an inadequacy in the facts alleged therein, can be cured hy a simple request for additional information, justice may be best served under Wis. Stat. § 968.26 by the judge simply making such request or examining the complainant.

Reimann, 214 Wis. 2d at 625. The judge argues that this part of Reimann interprets the John Doe statute as generally authorizing the consideration of information outside the petition. We disagree. In this part of Re-imann, the supreme court is not talking about judges going outside a citizen's "complaint" looking for substantiating or conflicting information. Rather, the court is explaining that judges have the discretion to request additional information in an effort to assist complainants. The larger context for the above quote is as follows:

If.. . the judge finds that the complainant has failed to establish "reason to believe," that judge may deny the John Doe petition without conducting an examination.
This, of course, is not to say that the judge's decision may rest upon prejudice or caprice. In determining whether the petition is worthy of further treatment, a circuit court judge must act as a neutral and detached magistrate. In making this decision, the judge should not weigh the credibility of the complainant or choose between conflicting facts and inferences. For some complainants, the John Doe procedures available under Wis. Stat. § 968.26 provide their only entrance to the state courts. Although we believe that circuit court judges must perform some gate-keeping functions under Wis. Stat. § 968.26, we do not here intend to close the doors of the courtroom to those persons who may have reason to believe a crime has been committed. In addition, the judge must recognize that many John Doe petitions are filed pro se by complainants not trained in the complexities of criminal law and procedure. Where a mere technical error on the face of the petition, or an inadequacy in the facts alleged therein, can be cured by a simple request for additional information, justice may be best served under Wis. Stat. § 968.26 by the judge simply making such request or examining the complainant.

Id. at 625 (citation omitted). Thus, this part of Reimann simply says that judges have the discretion to request additional information to assist a pro se complainant.

¶ 26. To sum up, we address no more than the narrow argument before us, namely, that the quoted Reimann language supports the circuit judge's request for, review of, and use of the police reports to reject Williams' petition. Reimann does not support this argument.

¶ 27. The circuit judge separately argues that he was entitled to consider the police reports because Williams' petition refers to the police reports. The petition states: "The Madison Police Department filed this case under incident report no. 2002-152973." The judge argues that case law holds that a judge "may consider information attached to or referenced in the petition."

¶ 28. Because the police reports in this case were not "attached" to the petition, the part of the judge's argument that matters is his claim that courts may consider documents referenced in a petition. But the only case the judge offers in support, Friends of Kenwood v. Green, 2000 WI App 217, 239 Wis. 2d 78, 619 N.W.2d 271, speaks of "attached" documents. Id,, ¶ 11 ("When a document is attached to the complaint and made a part thereof, it must be considered a part of the pleading, and may be resorted to in determining the sufficiency of the pleadings."). Because the circuit judge does not offer support for the conclusion that the police reports in this case were "attached" to Williams' petition within the meaning of Friends of Kenwood or any similar authority, we address this argument no further.

Conclusion

¶ 29. Because Williams' petition under the John Doe statute contains "reason to believe" a crime has been committed, we grant his petition for a writ of mandamus and direct the circuit court judge to "examine the complainant under oath and any witnesses produced by him." Wis. Stat. § 968.26.

By the Court. — Writ granted.

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

       In his petition for a writ of mandamus filed in this court, Williams denies that the police officer who questioned him on January 2, 2003, told him Joseph Heise's name.

       In his petition for a writ, Williams asserts that he stabbed Heise on January 9, 2003, in self-defense after Heise appeared out of nowhere and attacked Williams. Reports attached to Williams' writ indicate that Williams, who was born in 1949, has spent about 35 years of his life in prison and has psychological problems. It appears that Williams was convicted and sentenced to prison as a result of stabbing Heise.

       Although we refer to arguments as being made by the circuit judge, we note that the judge is represented on appeal by the Attorney General.

       As indicated earlier, the circuit judge is represented on appeal by the Attorney General. Although in the text we say that our request for briefing was directed at the circuit judge, in fact it was directed at the Attorney General. All of the arguments we attribute to the circuit judge in this case were made on his behalf by the Attorney General.

       We do not have occasion to consider what procedures constitute compliance with this statutory directive. Similarly, whether further proceedings are required after the circuit judge complies with the statute is not a question before us. Still, we note that a statement by the supreme court in State v. Unnamed Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989), is no longer accurate. In Unnamed Defendant, the supreme court said "the John Doe judge 'shall' charge upon finding probable cause." Id. at 366. But the "shall" referred to in Unnamed Defendant was subsequently changed by the legislature to "may." See 1991 Wis. Act 88.