author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Adam W. Matthews, Defendant-Appellant. State of Wisconsin, Plaintiff-Respondent, v. Jeremy J. Husbeck, Defendant-Appellant.

      Nos. 00-3440-CR, 00-3476-CR.

      Submitted on briefs June 25, 2001.

    Decided September 5, 2001.

    2001 WI App 243
    (Also reported in 635 N.W.2d 601.)

      On behalf of the defendant-appellant, Jeremy J. Husbeck, the cause was submitted on the briefs oí Jane Krueger Smith-, on behalf of the defendant-appellant, Adam W Matthews, the cause was submitted on the briefs of John C. Gower, both of Oconto Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Thomas L. Dosch, assistant attorney general.
    Before Cane, C.J., Hoover, EJ, and Peterson, J.

      Petition to review denied 1-29-02.

   CANE, C.J.

¶ 1. Adam Matthews and Jeremy Husbeck appeal from a circuit court order denying their motion to dismiss charges against them for shining deer while hunting or possessing a firearm, as parties to a crime. At issue is the State of Wisconsin's authority to regulate the off-reservation, treaty-based hunting rights of two members of the Keweenaw Bay Indian Community, a Chippewa tribe located in the upper peninsula of Michigan.

¶ 2. It is undisputed that the State can regulate off-reservation, treaty-based hunting rights for conservation purposes, as long as the State establishes that the regulation it seeks to enforce is reasonable and necessary for conservation purposes and does not discriminate against Indians. The issue presented here is whether the State may also regulate off-reservation, treaty-based hunting rights for the protection of public health and safety. This case is unique in that it addresses issues that were already decided with respect to members of Wisconsin's six Chippewa tribes after seventeen years of federal litigation often referred to as the LCO case.

¶ 3. We conclude that the State may regulate the defendants' off-reservation exercise of treaty-based hunting rights for the protection of public health and safety if the State establishes that the disputed regulation is reasonable and necessary for that purpose and does not discriminate against Indians. Therefore, we affirm the circuit court's order and remand for further proceedings.

Background

¶ 4. The background facts are undisputed. Matthews and Husbeck (the defendants) were arrested while deer hunting in Marinette County. They were both charged, as party to a crime, with violating Wis. Stat. § 29.314(3)(a), which prohibits shining deer while hunting or possessing certain weapons. The defendants assert that their tribe was a signatory to the Treaty of 1842, and that they therefore have the right to exercise treaty-reserved rights to hunt, fish, trap and gather on non-reservation lands (collectively, usufruc-tuary rights) in Wisconsin.

¶ 5. The defendants moved to dismiss the charges on subject matter jurisdiction and comity grounds. They argued that the State lacked jurisdiction to regulate treaty hunting and fishing rights on ceded territory covered by the Treaty of 1842. They also asserted that the Keweenaw Bay Indian Community has jurisdiction over the defendants' activities.

¶ 6. The court held two hearings on the motion to dismiss. The parties agreed that the threshold question presented was whether the State could regulate the defendants' usufructuary rights for the purpose of protecting public health and safety. Thus, the circuit court was asked to assume, for purposes of the motion, that the Keweenaw Bay Indian Community has usufructu-ary rights in Wisconsin pursuant to the Treaty of 1842. Additionally, the court did not address whether the Keweenaw Bay Indian Community has jurisdiction over the defendants' alleged actions in this case.

¶ 7. The circuit court held that the State may regulate the exercise of usufructuary rights for the protection of public health and safety if the State establishes that the disputed regulation is reasonable and necessary for that purpose and does not discriminate against Indians. In doing so, the court adopted the reasoning employed by the district court in Lac Courte Oreilles Band v. Wisconsin, 668 F.Supp. 1233, 1237-39 (W.D. Wis. 1987) (LCO TV), which decided the same issue with respect to Wisconsin's six Chippewa tribes. The circuit court did not address whether Wisconsin case law also supported its conclusion.

¶ 8. The circuit court entered a written order (1) denying the defendants' motion to dismiss; and (2) indicating that in order to establish subject matter jurisdiction, the State will be required to prove that Wis. Stat. § 29.314(3)(a) is reasonable and necessary for the purpose of protecting public health and safety and does not discriminate against Indians. The defendants sought leave to appeal and we granted the motion.

¶ 9. The parties agree on the single issue presented: whether the State may regulate the exercise of the defendants' usufructuary rights for the purpose of protecting public health and safety. We conclude that the State may do so and, therefore, we affirm the circuit court and remand for further proceedings.

Standard of review

¶ 10. Where, as here, material facts are undisputed, the question presented on appeal is one of law. See State v. Big John, 146 Wis. 2d 741, 748, 432 N.W.2d 576 (1988). Whether statutory provisions apply to a particular set of facts is also a question of law. Id. An appellate court decides questions of law independently without deference to the circuit court. Id.

Discussion

¶ 11. The defendants assert that they have the same usufructuary rights in the ceded territory as the Chippewa whose rights were determined in the LCO case. However, they argue that the district court's conclusion that the State may regulate usufructuary rights for the protection of public health and safety was wrong. They also contend that Wisconsin case law does not establish the State's right to regulate usufructuary rights for the protection of public health and safety.

¶ 12. In contrast, the State argues that under Wisconsin case law, the State may regulate the exercise of usufructuary rights for the protection of public health and safety. The State also argues that although the defendants are not bound by the LCO case because their tribe was not a party, this court should adopt and apply against the defendants that case's holding on regulation for the protection of public health and safety.

¶ 13. We begin our analysis with a review of Wisconsin case law, by which we are bound. See State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159 (1984) (the court of appeals is bound by prior decisions of the supreme court); Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997) (the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals). Then, we examine the LCO case decisions most relevant to this appeal. Although the parties agree that those decisions are not binding on this court, see State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993) (determinations on federal questions by either the federal circuit courts of appeal or the federal district courts are not binding upon state courts), we are free to adopt the district court's reasoning and therefore consider the cases in some detail.

I. Wisconsin case law

¶ 14. In State v. Gurnoe, 53 Wis. 2d 390, 192 N.W.2d 892 (1972), our supreme court held that although the Chippewa have a right to continue fishing in Lake Superior, "such a grant of rights does not foreclose the state from exercising police power to control fishing in Lake Superior even by Indians who claim fishing rights under [the 1854] treaty." Id. at 410. The court, citing Puyallup Tribe v. Department of Game, 391 U.S. 392, 399 (1968), concluded that the State should be given the opportunity to prove that the regulations allegedly violated by tribal members are reasonable and necessary for the preservation of fish in the State of Wisconsin. Gurnoe, 53 Wis. 2d at 410.

¶ 15. However, the court in Gurnoe also took one additional step: the court held that the State should also have the opportunity to show that its regulations "are necessary in the exercise of other valid police powers." Gurnoe, 53 Wis. 2d at 410. The court stated: "The circuit court suggested, for example, that the regulations relating to the marking and placement of gill nets might he required to protect boaters on Lake Superior. Under [Supreme Court precedent], such an interest would be valid." Id. at 411.

¶ 16. In State v. Whitebird, 110 Wis. 2d 250, 251, 329 N.W.2d 218 (Ct. App. 1982), this court concluded that Wis. Stat. § 30.51(1) (1981), requiring boats operating on Lake Superior to display valid state certificates, could be enforced against enrolled members of an Indian band. See id. We concluded that the statute did not infringe on the Indians' rights to fish "where, when, and with what they want." Id. at 252-53. However, we also observed, citing Gurnoe, that even if § 30.51(1) had some minimal effect on fishing rights, "such an effect would not preclude Wisconsin's enforcement of [the statute] against band members on Wisconsin waters because its purpose is public safety." Whitebird, 110 Wis. 2d at 253.

¶ 17. Finally, in Big John, the court held that the State had jurisdiction to enforce Wis. Stat. § 30.51(1) (1986), requiring state certificates on boats operating on state waters, against tribal members operating motorboats off the reservation. Big John, 146 Wis. 2d at 743-44. The court concluded that enforcement of the statute did not impermissibly infringe upon the tribe's treaty-protected fishing rights. Id. at 752. However, the court also discussed the general case law concerning state regulation of Indians exercising treaty rights. Id. at 749-50. Citing Puyallup, LCO TV and other cases, the court observed that some treaty rights may limit the extent to which state laws can be applied to Indians off-reservation, noting that the burden is on the State to show that the restrictions Eire reasonable and necessary for conservation purposes. Big John, 146 Wis. 2d at 750.

II. The LCO Case

¶ 18. In Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO I), the court of appeals recognized that the Chippewa have usufructuary rights and remanded the case to the district court for determination of several issues, including the permissible scope of state regulation over the Indians' exercise of their rights. Id. at 365. In Lac Courte Oreilles Band v. Wisconsin, 760 F.2d 177 (7th Cir. 1985) (LCO II), the court again directed the district court to consider the scope of state regulation, explaining:

While the [tribes] in the exercise of their rights are relieved of licensing requirements and no doubt from other restrictions, nevertheless we think that public policy which would benefit the Indians as well as all others might well enter into the picture. We doubt that extinction of species or even wholesale slaughter or a substantial detriment to the public safety is a reasonable adjunct to the rights reserved by the Indians.

LCO II, 760 F.2d at 183.

¶ 19. In LCO TV, the district court addressed the scope of permissible state regulation of the tribes' usufructuary rights. First, the court recognized that the parties agreed that the State may regulate where reasonable and necessary for conservation purposes. See LCO IV, 668 F.Supp. at 1237. Second, the court held that the State was not limited to regulating solely for conservation purposes. Id. at 1238.

¶ 20. The district court's conclusion that state regulation was not limited to conservation purposes was based on its interpretation of both federal and state case law. First, the court recognized that courts addressing treaty fishing rights in the Pacific Northwest had consistently limited states' regulatory authority to the issue of conservation or preservation of the resource. Id. at 1237 (citing Washington v. Washington State Comm. Pass. Fishing Vessel Ass'n, 443 U.S. 658, 682 (1979) ("Although nontreaty fishermen might he subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation."); and Puyallup, 391 U.S. at 398 (treaty right to fish may not be qualified, but aspects of fishing "may be regulated by the State in the interest of conservation")).

¶ 21. Second, the district court noted that other courts have indicated that tribal treaty rights may be subject to the exercise of other police powers, such as regulation for the protection of public safety. See LCO IV, 668 F.Supp. at 1237 (citing LCO II, 760 F.2d at 183; and Gurnoe, 53 Wis. 2d at 410-11).

¶ 22. After recognizing the two lines of cases, the district court concluded that the State's regulatory power was not limited to the sole purpose of conservation or preservation of the resources. See LCO IV, 668 F.Supp. at 1238. In doing so, the court distinguished Fishing Vessel Ass'n:

Unlike the case law arising from the Northwest, which primarily concerns the single resource of Pacific salmon, here the plaintiff tribes' usufructuary rights extend to dozens or even hundreds of resources, including several game animals and birds.... The use of a variety of weapons for hunting alone may operate to confer on the state certain interests not present in the Northwest fishing rights cases.

LCO IV, 668 F.Supp. at 1238. The court also limited the scope of the ruling, explaining:

This does not mean, however, that the state may regulate the tribes' treaty rights for any purpose. The state's proposal that it may regulate for any legitimate purpose finds no support in the law. The tribes' federally protected rights may not be subordinated to every state objective or policy.. . . The treaty-guaranteed usu-fructuary rights of the plaintiff tribes may be regulated by the state only in certain narrowly defined circumstances.

Id.

¶ 23. The court concluded that one of the specific instances in which the State can regulate usufructuary rights is in the interest of public health and safety. Id. at 1239. The court stated, "[I]t appears logical that if the state may intrude upon treaty reserved rights to preserve a species or resource, it may intrude as well to preserve its citizens from certain public health or safety hazards." Id. at 1238-39.

¶ 24. The court also held that the State's public health and safety regulations are subject to the same heightened level of scrutiny as its conservation measures:

The state may regulate the tribes' off-reservation treaty rights where the regulations are reasonable and necessary to prevent or ameliorate a substantial risk to the public health or safety, and do not discriminate against the Indians. A public health and safety regulation is reasonable if it is appropriate to its purpose. Such a regulation is necessary if it meets a three part test. First, the state must demonstrate that there is a public health or safety need to regulate a particular resource in a particular area. This requires a showing by the state that a substantial detriment or hazard to public health or safety exists or is imminent. Second, the state must show that the particular regulation sought to be imposed is necessary to the prevention or amelioration of the public health or safety hazard. And third, the state must establish that application of the particular regulation to the tribes is necessary to effectuate the particular public health or safety interest. Moreover, the state múst show that its regulation is the least restrictive alternative available to accomplish its health and safety purposes. Finally, as the second prong of the legal standard, the state regulations may not discriminatorily harm the Indians or discriminatorily favor non-treaty harvesters.

Id. at 1239.

¶ 25. In a subsequent decision, the district court applied this test to the State's prohibition on shining deer. See Lac Courte Oreilles Band v. Wisconsin, 740 F.Supp. 1400, 1423 (WD. Wis. 1990) (LCO VII). After considering trial testimony, the court concluded that the State's prohibition on shining deer is a "narrowly drawn, non-discriminatory restriction on [the tribes'] hunting rights that is necessary to protect the safety of persons in the ceded territory. It imposes a minimol infringement on [the tribes'] rights in comparison to the great danger night hunting presents to public safety." Id.

¶ 26. The district court concluded that the State could enforce its deer shining regulation against the tribes, "except insofar as [the tribes] incorporate the same prohibition into their own tribal codes." Id. This latter exception incorporated the court's earlier holding that the tribes may regulate their members' usufructu-ary activities "for any legitimate purpose," and thereby preclude state regulation, provided that the tribal regulations "adequately address legitimate state concerns in the areas of conservation of resource and public health and safety." See LCO IV, 668 F.Supp. at 1242.

¶ 27. Ultimately, the LCO case concluded with a final order that included a reiteration of the district court's ruling on deer shining: "[The State] may enforce the prohibition on shining of deer contained in [Wis. Admin. Code] § NR 13.30(1)(q) until such time as [the tribes] adopt regulations identical in scope and content." Lac Courte Oreilles Band v. Wisconsin, 775 F. Supp. 321, 324 (W.D. Wis. 1991) (LCO VIII). Notably, the final order incorporated a stipulation by the parties that the order is binding on the individual members of Wisconsin's six Chippewa tribes, as well as on the tribes. Id. at 325.

III. Case law application

¶ 28. We conclude (1) state case law supports the State's contention that it may regulate usufructuary rights for the purpose of protecting public health and safety; (2) the district court's analysis in the LCO case is persuasive and provides additional justification for affirming the circuit court; and (3) United States Supreme Court precedent does not dictate a different result.

A. State case law supports the State's position

¶ 29. Gurnoe signaled approval for the potential application of the State's public health and safety regulations to tribes exercising their usufructuary rights. See Gurnoe, 53 Wis. 2d at 410-11. We do not read any subsequent Wisconsin case as addressing this issue more squarely or as altering Gurnoe's conclusion. Although Big John explicitly stated that the burden is on a state to show that restrictions are reasonable and necessary for conservation purposes, we agree with the State that the court was citing one specific example of permissible state regulation, rather than implicitly overruling Gurnoe. See Big John, 146 Wis. 2d at 750.

B. The State's position is consistent with the LCO case

¶ 30. We agree with the analysis and conclusions with respect to state regulation for public health and safety that the district court reached in the LCO case. We find especially compelling the court's observation that "it appears logical that if the state may intrude upon treaty reserved rights to preserve a species or resource, it may intrude as well to preserve its citizens from certain public health or safety hazards." See LCO IV, 668 F.Supp. at 1238-39. Our decision affirming the circuit court is consistent with LCO TV, and will help to promote consistency in the State's regulation of usu-fructuary rights for Chippewa from tribes located both inside and outside Wisconsin. Our decision will also help to protect Wisconsin's citizens, because although the circuit court has yet to determine whether the deer shining statute at issue here is reasonable and necessary and does not discriminate against Indians, we are confident that there are public health and safety regulations that will satisfy this test. For example, regulations prohibiting shooting high-powered rifles near homes or schools are likely to meet this standard.

C. Supreme Court precedent does not dictate reversal

¶ 31. The defendants' primary argument for reversal is that the LCO case and Wisconsin case law are inconsistent with United States Supreme Court precedent. Specifically, the defendants identify conflict with the Court's ruling in Fishing Vessel Ass'n, where the Court stated: "Although nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation." Fishing Vessel Ass'n, 443 U.S. at 682. Like the district court, we acknowledge that this language could be read as foreclosing state regulation for any purpose besides conservation. See LCO IV, 668 F.Supp. at 1237. However, we also agree with the district court's analysis that Northwest fishing cases are distinguishable, and that the Supreme Court did not expressly contemplate how its ruling would apply to the exercise of other usufructuary rights. See id. at 1237-38.

¶ 32. Moreover, we note that LCO TV, released in 1987, has never been overturned. The Supreme Court has not directly addressed LCO TV, and we are unaware of any Supreme Court case involving a state's attempt to regulate a tribe's usufructuary rights for the purpose of protecting public health and safety. We are convinced that LCO TV is consistent with Fishing Vessel Ass'n.

¶ 33. The defendants also assert that the Supreme Court's decision in Minnesota v. Mille Lacs Band, 526 U.S. 172 (1999), proves that the district court decided LCO IV incorrectly. Mille Lacs affirmed the usufructuary rights of Chippewa Indians in Minnesota. Mille Lacs, 526 U.S. at 175-76. In doing so, the Court noted that it had "repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation." Id. at 205. The Court stated: "This 'conservation necessity' standard accommodates both the State's interest in management of its natural resources and the Chippewa's federally guaranteed treaty rights." Id.

¶ 34. The defendants contend that this language establishes that state regulation of usufructuary rights for conservation purposes is the only permissible purpose -for regulation. They explain that the district court's basis for distinguishing Fishing Vessel Ass'n in LCO IV —that Fishing Vessel Ass'n did not contemplate the broad spectrum of resources to be hunted that was present in LCO IV —is no longer persuasive because Mille Lacs considered the same broad spectrum of resources at issue in LCO IV. The defendants argue: "When [the district court] made [its] predictions in 1987 and again in 1990, no such [broad spectrum] case had reached the United States Supreme Court. [Mille Lacs] clearly establishes that [the district court's] prediction was wrong."

¶ 35. We disagree. Although Mille Lacs recognized the rights of states to regulate in the interest of conservation, the Court did not address whether a state could also regulate to protect public health and safety. We do not read the Court's language as excluding the possibility that regulation may be appropriate for other compelling reasons.

¶ 36. We recognize that the defendants disagree with this conclusion and rely on Justice Thomas's dissent in Mille Lacs in support of their argument that the majority in Mille Lacs intended to foreclose all state regulation of usufructuary rights except for conservation purposes. The defendants explain, "Any doubt that the 'conservation purposes only standard' of [Fishing Vessel Ass'n was reaffirmed in [Mille Lacs] can be fully and finally dispelled by reading the dissenting opinion of Justice Thomas in [Mille Lacs]." Justice Thomas wrote:

Most important, all the cases that the majority cites in support of the proposition that States may enforce against Indians in their exercise of off-reservation usufructuary privileges only those regulations necessary for purposes of conservation, ante, [526 U.S. at 204-205], involved the same or substantially similar treaty language reserving a right to hunt or fish.

Mille Lacs, 526 U.S. at 224 (Thomas, J., dissenting).

¶ 37. Justice Thomas's dissent does not persuade us to change our conclusion that Mille Lacs did not overrule the district court's reasoning in LCO IV. First, Thomas's dissent itself acknowledges that "Minnesota's regulatory authority is not at issue here." See Mille Lacs, 526 U.S. at 226 (Thomas, J., dissenting). Indeed, that is part of Justice Thomas's concern: that the Court passed on an important federalism question in dicta. See id. at 221.

¶ 38. Second, to the extent Justice Thomas characterizes the majority opinion as allowing "only those regulations necessary for purposes of conservation," see id. at 224 (emphasis added), we respectfully disagree with his conclusion. That portion of the majority opinion to which Justice Thomas refers does not include the word "only." See id. at 204-05. Instead, it simply restates prior Supreme Court precedent recognizing the conservation necessity. We do not read the Mille Lacs majority opinion as foreclosing the possibility of state regulation of tribes' usufructuary rights for the purpose of protecting public health and safety.

Conclusion

¶ 39. We conclude that the State may regulate the defendants' exercise of usufructuary rights for the protection of public health and safety if the State establishes that the disputed regulation is reasonable and necessary for that purpose and does not discriminate against Indians. Therefore, we affirm the circuit court's order and remand for further proceedings.

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

       On January 10, 2001, we granted leave to appeal the circuit court's order pursuant to Wis. Stat. Rule 808.03(2). Originally assigned as a one-judge appeal under Wis. Stat. § 752.31(2), this case was reassigned to a three-judge panel by order dated August 8, 2001. See Wis. Stat. Rule 809.41(3). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       At issue in the LCO case was the scope and exercise of the Chippewa's usufructuary rights (treaty-reserved rights to hunt, fish, trap and gather on non-reservation lands) in ceded lands in the northern third of Wisconsin. See Lac Courte Oreilles Band v. Wisconsin, 760 F.2d 177, 178 (7th Cir. 1985) (LCO II). The litigation resulted in numerous decisions of the district court and the court of appeals. We will address the most relevant of those decisions later in this opinion. The State notes that neither party appealed the final decision in that litigation, see Lac Courte Oreilles Band v. Wisconsin, 775 F.Supp. 321 (WD. Wis. 1991) (LCO VIII), and, therefore, the parties continue to be bound by the decision. The Keweenaw Bay Indian Community was not a party in the LCO case.

       Wisconsin Stat. § 29.314(3) provides in relevant part: "Shining deeR OR BEAR while hunting OR possessing weapons PROHIBITED, (a) Prohibition. No person may use or possess with intent to use a light for shining deer or bear while the person is hunting deer or bear or in possession of a firearm, bow and arrow or crossbow."
      The defendants were also charged with hunting deer during a closed season in violation of Wis. Admin. Code § NR 10.01(3)(e), but the State voluntarily agreed to dismiss those charges.

       The parties agreed in the circuit court to defer litigation of that issue, pending the outcome of the court's decision with respect to state regulation. Accordingly, we do not decide whether the defendants have usufructuary rights in Wisconsin.

       It is well established that a state may impose reasonable and necessary nondiscriminatory regulations on Indian usu-fructuary rights for conservation purposes. See Puyallup Tribe v. Department of Game, 391 U.S. 392, 399 (1968). At issue here is whether state regulations that protect public health and safety are also permissible. The State maintains that it has not conceded its right to prove to the circuit court that the statute at issue has a conservation purpose that would also justify its enforcement against the defendants.

       As we explain later in this opinion, the LCO case established that the six Wisconsin tribes may preclude the enforcement of state hunting regulations against tribal members by enacting and enforcing tribal regulations that accomplish the same objectives. See Lac Courte Oreilles Band v. Wisconsin, 668 F.Supp. 1233, 1242 (WD. Wis. 1987) (LCO IV). We have not been asked to address whether the Keweenaw Bay Indian Community would also have the power to preclude state regulation and, therefore, do not decide the issue.

       The circuit court actually began to hear testimony from the State in support of its claim that the deer shining statute is reasonable and necessary and does not discriminate against Indians. However, the court ultimately ended testimony, concluding that the most efficient course of action would be to allow the defendants time to file an interlocutory appeal on its legal ruling.

       Neither the defendants nor the State contest the circuit court's conclusion that the State will be required to prove, "in an evidentiary proceeding and by a preponderance of the evidence, that [Wis. Stat.] § 29.314(3)(a) is reasonable and necessary for purposes of protecting public health and safety and does not discriminate against Indians." Moreover, it appears that the defendants have agreed that the circuit court should apply the analysis established by the district court in LCO IV, 668 F.Supp. at 1239. We have not been asked to decide, and therefore do not address, whether that analysis is identical to the analysis employed in state conservation cases prior to LCO IV, such as State v. Newago, 134 Wis. 2d 420, 397 N.W.2d 107 (Ct. App. 1986).

       We note that the State has acknowledged that although there are several Wisconsin cases that specifically address the extent to which the State may regulate usufructuary rights for conservation purposes, "the body of Wisconsin case law addressing the question of whether the State may so regulate in the interest of health or safety is somewhat smaller and, in some cases at least, less direct."

       For additional analysis of the LCO case, see Kenneth D. Nelson, Wisconsin, Walleye, & the Supreme Law of the Land: An Overview of the Chippewa Indian Treaty Rights in Northern Wisconsin, 11 Hamline J. Pub. L. & Pol'y 381 (Fall 1990).

       The Supreme Court in Puyallup, held that the "overriding police power of the State, expressed in nondiscriminatory measures for conserving fish resources, is preserved." Puyallup,
        391 U.S. at 399. However, the State's regulation must "meet[] appropriate standards" and "not dis'criminate against the Indians." Id. at 398.

       The State relies on this language for the proposition that Wisconsin case law establishes that the State may regulate the tribes' usufructuary rights to protect public health and safety.

       The defendants seize on this "conservation" language in support of their contention that Wisconsin recognizes that the State may regulate usufructuary rights only for conservation purposes. The State, on the other hand, argues that this language merely cites one example of a state's authority to regulate treaty rights. Additionally, the State notes that the opinion actually cites LCO TV, the same case that recognized that the State could also regulate for the purpose of protecting public health and safety.

       After the original suit was filed by the Lac Courte Oreilles Tribe, the five other Lake Superior Chippewa tribes located in Wisconsin intervened by stipulation as plaintiffs and were thereafter active in the litigation. See LCO II, 760 F.2d at 178.

       As the State noted before the circuit court, adopting the defendants' argument would create the situation where Chippewa from tribes outside Wisconsin could be less restricted by state regulation than Chippewa from tribes located in Wisconsin.


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    Juanita N. Gray, Plaintiff-Respondent, v. Russel Eggert, Milwaukee Transport Services, Inc. and Milwaukee County Inc., Defendants-Appellants.
    Court of Appeals

      No. 01-0007.

      Submitted on briefs August 9, 2001.

    Decided September 5, 2001.

    2001 WI App 246
    (Also reported in 635 N.W.2d 667.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Richard J. Krill of Gonzalez, Saggio & Harlan, L.L.P., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Ronald Bornstein oí Bornstein Law Offices, S.C., of Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. Russel Eggert, Milwaukee Transport Services, Inc., and Milwaukee County Inc. (collectively, "Milwaukee Transport") appeal from the trial court judgment awarding Juanita N. Gray $5000, plus taxable costs, as a sanction for what the court perceived as Milwaukee Transport's failure to comply with a scheduling order. The trial court concluded that Milwaukee Transport had violated the order by not making a good-faith effort to settle the case. We reverse.

I. BACKGROUND

¶ 2. On April 7, 1998, Gray was driving a school bus that collided with a county bus Eggert was driving. Alleging that she had sustained injuries as a result of the collision, Gray sued Milwaukee Transport and claimed that she had incurred medical expenses of approximately $1419 and a wage loss of less than $150. Milwaukee Transport denied liability and contended that Gray "was negligent and failed to use reasonable care" and that her injuries, if any, resulted from her negligence.

¶ 3. The trial court issued a scheduling order requiring that "[t]he parties shall complete mediation no later than [January 17,] 2000." The parties participated in mediation on January 4, 2000, but reached no resolution.

¶ 4. On July 26, 2000, the date set for trial, the trial court, in a chambers conference the court subsequently summarized on the record, learned that Milwaukee Transport had offered no financial settlement. Milwaukee Transport had offered nothing because, it maintained, Gray had driven her school bus into the county bus while it was "standing still" and, therefore, Milwaukee Transport believed it had "absolutely no liability." The trial court instructed the parties to attempt further negotiation. Apparently, counsel then conferred and advised the trial court that Milwaukee Transport would settle the case for $100, and that Gray had offered to settle for $5000.

¶ 5. Thus advised that the parties had been unable to resolve the case, the court expressed its frustration, commenting, in part:

There was mention about a mediation, but there was no mention about sitting down and trying to resolve and settle the case in good faith. And when defense counsel says they've offered zero, zero means zero, so the mediation process that existed was a sham or perfunctory.
I then called the lawyers' attention to the scheduling order [which states, in part,] that ["]counsel are expected to confer and make a good faith effort to settle the case[."]
There was no good faith effort to settle the case as of a few minutes before 9:00 .. . this morning.
Defense counsel, upon my inquiry, advised me who was in the position of authority to settle the case.... I indicated that he should call his client and make a good faith offer... to settle the case, and confer and settle the case, as ordered by Diane Sykes, who is now on the Wisconsin State Supreme Court.
I then indicated that when that offer in good faith is conferred back to the court..., I expect [plaintiffs counsel] to make a good faith offer in response.
It's 9:15. The response I get from [defense counsel] is a hundred dollars. That is not done in good faith.
The court imposes the sanctions under the scheduling order for failure of defense counsel to confer with plaintiff in an effort to settle this case in good faith.

¶ 6. The court then invoked portions of the scheduling order, providing in relevant part: "[C]ounsel are expected to confer and make good faith effort to settle the case.... FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER SHALL BE CONSIDERED CAUSE FOR IMPOSING SANCTIONS WHICH MAY INCLUDE THE DISMISSAL OF CLAIMS AND DEFENSES. See § 804.12 and 805.03 Wis. Stats." (Footnote added.) The trial court concluded: "For failure to comply in good faith with the scheduling order to sit and confer and try to settle the case in good faith, the court strikes the answer and responsive pleadings of the defendant, [and] enters judgment in favor of the plaintiff in the amount of five thousand dollars."

¶ 7. The next day, Milwaukee Transport moved for reconsideration. Counsel for Milwaukee Transport argued, "With all due respect, the defendants find it difficult to believe that it is just for the court to find that [they acted] in bad faith for offering only a nominal amount to settle a matter which the defendants view as a case of no liability." Counsel for Milwaukee Transport elaborated the evidentiary basis for his position, and further maintained:

Defendants do not believe its offering a nominal amount to settle a case of this nature can qualify as bad faith. Defendants believe that no defendant should be forced to pay money under such circumstances, but it is particularly true that Milwaukee County Trans [por]t, as an arm of Milwaukee County, should not be required to pay every plaintiff who files suit. Due to the size of its operations, Milwaukee County Trans[por]t is a major target for litigation. It is constantly dealing with claims of questionable merit. The mentality already exists in this community that you can always sue the bus company. This philosophy could only be reinforced by a ruling that seems to require Milwaukee County Trans-[por]t to pay substantial sums to every plaintiff.
Milwaukee County Trans[por]t regularly settles cases of this sort for one hundred dollars. Present counsel settled a case for Milwaukee County Trans-[por]fc.for exactly one hundred dollars in early May of this year in the course of a mediation conducted by the same mediator who conducted mediation in the case at bar on similar facts.

Counsel then further challenged the trial court's sanction because it "seems not to be consistent with the spirit of alternative dispute resolution embodied in [Wis. Stat. §] 802.12."

¶ 8. The trial court, rejecting Milwaukee Transport's motion for reconsideration, reiterated the previous day's basis for its ruling, and added that it also had been influenced by the demeanor of Milwaukee Transport's counsel:

[Y]our non-verbal communication, and the way that you expressed the hundred dollars, reminded me of the smiling Cheshire cat in Alice in Wonderland, and was said in a very cocky way, and there was nothing to demonstrate by your demeanor that you were at all sincere, and there was nothing to suggest at any point in time that you sat and tried to confer in good faith to reach a settlement. ... [T]here was nothing at all to demonstrate by your conduct, your non-verbal communications, your demeanor and your language that you were acting in good faith to try to settle the case. No one was ordering you to do it, but you weren't even trying. The clear inference given is that you were playing a game. Form you were giving me without substance. And if these scheduling orders are to have any meaning, they're going to be enforced.
So the reason I struck your pleading was not [to] attempt to deny your client its constitutional protections, it was done because of the disregard, egregious act of not making any effort to sit down and confer with [plaintiffs counsel] in good faith to try to reach settlement of this case....

II. DISCUSSION

¶ 9. Wisconsin Stat. § 805.03 provides a trial court with the discretionary authority to strike the answer and responsive pleadings of a defendant and enter judgment for the plaintiff as a sanction for the defendant's failure to comply with any order of the court. We will affirm a trial court's discretionary decision if the trial court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable [court] could reach." Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Here, we conclude that the trial court incorrectly assumed facts about the mediation process, applied improper legal standards, and failed to reach a reasonable conclusion.

¶ 10. Under Wis. Stat. § 802.12(2), a trial court has authority to order parties in civil litigation to attempt mediation or other settlement processes to resolve a case. Leverence v. PFS Corp., 193 Wis. 2d 317, 329-30, 532 N.W.2d 735 (1995). Section 802.12(1)(e) explains:

"Mediation" means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.

Nowhere, however, does § 802.12 provide a court the authority to require resolution.

¶ 11. Moreover, while the mediation process will often depend on the parties' good faith and open-minded flexibility, it does not require any party to abandon a legal position or settle a case. See Leverence, 193 Wis. 2d at 330 ("[T]he parties themselves must agree to the process, one which is entirely within the parties' control because it cannot proceed without their consent."). Indeed, as a skillful mediation process facilitates the "exchanging [of] information between the parties," see Wis. Stat. § 802.12(1)(e), it can lead a party to recognize important facts that establish the merits of its position, thus strengthening the resolve to press forward with litigation. By the same token, of course, mediation can also help a party to realistically review a case, leading to a settlement.

¶ 12. Thus a trial court, not present at mediation, is unlikely to appreciate all that took place there and, as a result, may not understand whether the parties mediated in "good faith." Moreover, a trial court that equates "good faith" with the fact or amount of settlement offers, or with the success of the parties in reaching resolution, may fail to recognize that sometimes mediation exposes that a case is not "about money," but rather, is about issues not neatly resolved in a formal legal setting.

¶ 13. Accordingly, while mediation can be an invaluable process, its parameters must be understood and respected. See Eva Soeka & James Fullin, The New ADR Referral Statute: Resolving Conflicts Outside Wisconsin Courtrooms, 67 Wis. Law. 12, 15 (1994) (Wisconsin Stat. § 802.12, the alternative-dispute-resolution-referral statute, "does not require the parties to participate in settlement efforts in good faith, nor permit the court to sanction or otherwise burden any party for insisting on trial."). Therefore, enlightened trial courts will creatively and energetically explore the opportunities for mediation and other forms of alternative dispute resolution under Wis. Stat. § 802.12. They will also understand, however, that certain parties may not be ready, willing, or able — to give much ground or mediate effectively — and that mediation simply cannot resolve all cases.

¶ 14. In this case, when the trial court commented that "[t]here was mention about a mediation, but there was no mention about sitting down and trying to resolve and settle the case in good faith," the court had no factual basis for reaching any conclusion about whether Gray or Milwaukee Transport had mediated in good faith. And when the trial court commented that "when defense counsel says they've offered zero, zero means zero, so the mediation process that existed was a sham or perfunctory," the court revealed its misunderstanding of the mediation process. After all, in some cases, depending on the information exchanged and the parties' positions, successful mediation may produce recognition that "zero" is a fair result. Clearly, therefore, it is error for a court to conclude, based on an offer of zero, that the mediation process "was a sham or perfunctory."

¶ 15. Thus, when Gray and Milwaukee Transport arrived in court for their trial, nothing yet established any violation of the scheduling order. Simply stated, the parties had complied with the order for mediation, but mediation had not produced a settlement. At that point, the court, understandably, instructed the parties to make one last effort to reach resolution. But the court had no authority to require resolution or to sanction either party for failing to agree.

¶ 16. As the supreme court explained in Klitzke v. Herm, 242 Wis. 456, 8 N.W.2d 400 (1943), a trial court "may suggest figures, [it] may give [its] views but it is not the part of wisdom to undertake to force counsel to make settlement against his [or her] will." Id. at 461. Moreover, the trial court "should make it clear to counsel that [it] realizes that they are entitled to their day in court and are not to feel the slightest hesitancy in disagreeing with the views [it] expressed]." Id. Accordingly, trial courts "should not be too persistent about a settlement." Id. Here, unquestionably, the trial court broke through the Klitzke restraints.

¶ 17. Striking a defendant's pleadings and entering judgment for a plaintiff as a sanction for noncompliance with pretrial orders may be appropriate in the case of egregious conduct by a defendant who acts in bad faith. See Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co., 119 Wis. 2d 34, 40, 349 N.W.2d 716 (Ct. App. 1984); Furrenes v. Ford Motor Co., 79 Wis. 2d 260, 268, 255 N.W.2d 511 (1977). "Bad faith" has been defined as " '[d]eceit; duplicity; insincerity.'" Anderson v. Cont'l Ins. Co., 85 Wis. 2d 675, 691-92, 271 N.W.2d 368 (1978). Here, however, the record does not establish any bad faith or egregious conduct by Milwaukee Transport. The record does not establish any violation of the scheduling order.

¶ 18. "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy... ." Wis. Const. art. I, § 5 (footnote added). Milwaukee Transport is entitled to a jury trial.

By the Court. — Judgment reversed.

       The order was issued by the Honorable Diane S. Sykes, who then was a circuit court judge. The subsequent proceedings at issue in this appeal were before Judge Dominic S. Amato.

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

       Wisconsin Stat. § 805.03 states, in relevant part: "[F]or failure of any party ... to obey any order of court, the court... may make such orders in regard to the failure as are just...."

       If something in the conduct or demeanor of defense counsel merited discipline, the court failed to mention it when it first sanctioned Milwaukee Transport. Its belated references the next day did not establish a basis for the severe sanction imposed.

       "Inviolate" means "[fjree from violation; not broken, infringed, or impaired." Blaok's Law Dictionary 832 (7th ed. 1999).


author: PETERSON, J.

text:
    Heritage Mutual Insurance Company, PlaintiffAppellant, v. Douglas Wilber and Charles W. Thiel, Interested Parties-Respondents, Secura Mutual Insurance Company, Defendant.
    Court of Appeals

      No. 01-0017.

      Submitted on briefs July 31, 2001.

    Decided September 5, 2001.

    2001 WI App 247
    (Also reported in 635 N.W.2d 631.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas J. Donnelly of Emile Banks & Associates, LLC, Milwaukee.
    On behalf of the interested partie-respondent, Charles W. Thiel, the cause was submitted on the brief of I. Gregg Curry IV of McCarty Curry Wydeven Peeters & Haak, LLP, Kaukauna.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Heritage Mutual Insurance Company appeals a summary judgment requiring it to provide liability cover age pursuant to Wis. Stat. § 632.32(6)(a), for an officer of Wilber's Truck World who was involved in an automobile accident. Heritage argues that the policy is not subject to § 632.32(6)(a) because it is a general liability policy, not an automobile liability policy. We disagree and affirm the judgment.

BACKGROUND

¶ 2. Douglas Wilber, vice-president of Wilber's Truck World, Inc., drove a vehicle owned by Rose Marie and Orville Otradovec to a restaurant for a meeting. The vehicle had been at Wilber's Truck World for repairs. When Wilber left the restaurant after the meeting, he was involved in an automobile accident with Charles Thiel.

¶ 3. Wilber's Truck World carries a general liability insurance policy that Heritage had issued. The policy excludes coverage for liability arising from the use of an automobile. However, an endorsement to the policy provides non-owned auto liability coverage.

¶ 4. The endorsement provides that to qualify as an insured for non-owned auto liability coverage, employees or officers of Wilber's Truck World have to be using a non-owned vehicle in the course of "auto business operations." Non-owned vehicles are defined by the endorsement as automobiles that are not owned by Wilber's Truck World and that are used in connection with "auto business operations." "Auto business operations" is defined by the policy as "the business of selling, repairing, servicing, storing or parking autos."

¶ 5. After the accident, Heritage filed a declaratory judgment action seeking a coverage determination with respect to the general liability policy. Thiel filed a motion for summary judgment arguing that pursuant to Wis. Stat. § 632.32(6)(a), the policy provided coverage for Wilber as a matter of law.

¶ 6. The circuit court granted summary judgment. The court reasoned that: (1) Wilber's Truck World was a motor vehicle handler; (2) Wilber was an officer; (3) the Otradovecs were customers; (4) and Wilber was using the Otradovecs' vehicle at the time of the accident. Therefore, the elements of Wis. Stat. § 632.32(6)(a) had been met. Heritage was required to provide Wilber coverage. This appeal followed.

STANDARD OF REVIEW

¶ 7. We review a grant or denial of summary judgment independently, using the same methodology as the circuit court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). We need not repeat the entire methodology here, except to note that "if a genuine dispute of material fact exists or if the evidence presented is subject to conflicting inferences or factual interpretations, then summary judgment must be denied." Hanson v. Prudential Prop. & Cas. Ins. Co., 224 Wis. 2d 356, 362, 591 N.W.2d 619 (Ct. App. 1999).

¶ 8. This appeal also requires us to interpret Wis. Stat. § 632.32(6)(a). The interpretation of a statute is a question of law we review independently. Roehl v. American Family Mut. Ins. Co., 222 Wis. 2d 136, 142, 585 N.W.2d 893 (Ct. App. 1998). "The purpose of statutory construction is to give effect to the legislative intent." Id. When determining legislative intent, we first examine the language of the statute itself, and if the language is unambiguous, we give the language of the statute its ordinary meaning. Id.

DISCUSSION

¶ 9. Wisconsin Stat. § 632.32 is the omnibus motor vehicle coverage statute. Miller v. Amundson, 117 Wis. 2d 425, 429, 345 N.W.2d 494 (Ct. App. 1984). Wisconsin Stat. § 632.32(1) provides that the statute applies "to every policy of insurance issued or delivered in [Wisconsin] against the insured's liability for loss or damage resulting from accident caused by any motor vehicle. . . ."

¶ 10. Wisconsin Stat. § 632.32(6)(a) contains a list of prohibited exclusions and provides thát "[n]o policy issued to a motor vehicle handler may exclude coverage upon any of its officers, agents or employees when any of them are using motor vehicles owned by customers doing business with the motor vehicle handler." "Using" is defined as "driving, operating, manipulating, riding in and any other use." Wis. Stat. § 632.32(2)(c).

¶ 11. Heritage argues that the statute does not cover the policy because it is a general liability policy that excludes coverage for liability arising from the use of an automobile. While the policy does contain an endorsement for non-owned auto liability coverage, absent the endorsement the policy would not cover liability arising from the use of an automobile. According to Heritage, the endorsement is in excess of the minimum coverage required by law. As excess coverage, the endorsement limits the definition of an insured and limits non-owned auto coverage to situations where "use" is in the course of auto business operations. Therefore, Heritage contends that because the coverage under the endorsement exceeds that required by law and does not exclude coverage, Wis. Stat. § 632.32(6)(a) does not apply. Simply put, Heritage argues that an insurer may limit coverage if the coverage is optional under the policy.

¶ 12. We have not addressed this distinction between coverage exclusions and limitations in the context of Wis. Stat. § 632.32(6) (a). However, in Bindrim v. B. & J. Ins. Agency, 190 Wis. 2d 525, 534, 527 N.W.2d 320 (1995), this distinction was considered and rejected by our supreme court in the context of § 632.32(6)(b)1 (1991-92). Under those facts, Bindrim was injured when a motor vehicle owned by Hommeland and operated by Degano hit his motorcycle. Bindrim, 190 Wis. 2d at 531. Colonial Insurance Company insured Degano's husband. His policy was a named insurance policy and did not afford coverage to anyone other than the named insured. Id. Colonial denied coverage to Degano because Degano's husband was the named insured. Id. at 532. The trial court granted summary judgment in favor of Bindrim.

¶ 13. On appeal, Colonial argued that Klatt v. Zera, 11 Wis. 2d 415, 105 N.W.2d 776 (1960), allowed an insurance company to write a non-owners policy that only covered the named insured. In Klatt, the court held that when a policy contains no express exclusion clause that discriminates against any person related to the insured by blood or marriage, the policy may provide greater coverage for the insured. Klatt, 11 Wis. 2d at 425.

¶ 14. The Bindrim court distinguished Klatt. In Bindrim, the endorsement drafted for Degano's husband contained a clause that excluded Degano from all coverage. Because Degano would have had no coverage under Colonial's interpretation, the court held that Colonial could not rely on the Klatt rule that a policy may provide extended coverage for only the named insured. Bindrim, 190 Wis. 2d at 538.

¶ 15. The Bindrim court further held that the plain language of the provision in Wis. Stat. § 632.32 requires that it apply to all policies falling within the scope of the omnibus coverage statute. Bindrim, 190 Wis. 2d at 534-36. As the court explained:

The terms of the Omnibus Coverage Statute are clear. "No policy" may exclude a person related by blood or marriage to the insured. Section 632.32(6)(b)1, Stats. No policy means no policy. It does not mean "no policy except named operators coverage for non-owned vehicles policies." Nor does it mean "no policy except policies that comply with the Financial Responsibility Statutes."

Id. at 534-35. The court held that when a policy falls within the scope of Wis. Stat. § 632.32, any exclusion or limitation prohibited by § 632.32(6)(b)1 is void. Bindrim, 190 Wis. 2d at 538.

¶ 16. We conclude that the' language of Wis. Stat. § 632.32(6)(a) is plain and clear and that the elements required for coverage have been met. If a statute's terms have a plain meaning, we may not resort to judicial rules of interpretation and construction. Bindrim, 190 Wis. 2d at 534. Under the statute, Wilber's Truck World is a motor vehicle handler as defined in § 632.32(2)(b), and Wilber is an officer of Wilber's Truck World. The Otradovecs were customers doing business with Wilber's Truck World. At the time of the accident, Wilber was driving the Otradovecs' vehicle. Thus, under the statute, the Heritage policy was required to insure Wilber.

¶ 17. Using the same reasoning as Bindrim, we conclude that even though the Heritage policy is a general liability policy, Wis. Stat. § 632.32(6)(a) applies. While not required by law to offer automobile liability coverage, Heritage did provide coverage with the endorsement for non-owned auto liability. The policy covered Wilber's Truck World's liability resulting from an accident caused by a non-owned motor vehicle. The scope of § 632.32 applies to "every policy of insurance issued. . . against the insured's liability for loss or damage resulting from accident caused by any motor vehicle...." Wis. Stat. § 632.32(1). Therefore, the policy was required to comply with § 632.32(6)(a).

¶ 18. Under Heritage's interpretation of the endorsement, Wilber is not covered. The endorsement contains a clause that narrows the scope of the statute and excludes Wilber from coverage. Despite labeling the endorsement as a limitation rather than an exclusion, the end result is an endorsement that operates to exclude coverage where coverage would otherwise be available under the statute's plain terms. Because Wis. Stat. § 632.32(6)(a) applies and because the requirements for coverage have been met, Wilber is covered as a matter of law.

By the Court. — Judgment affirmed.

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

       Wilber's Truck World, Inc., is a business that repairs and services motor vehicles.

       The case was tried to a jury on other issues. However, because of the circuit court's grant of summary judgment, the issue whether Wilber's use of the automobile was in the course of auto business operations was not presented to the jury.

       Wisconsin Stat. § 632.32(6)(b)1 reads as follows: "No policy may exclude from the coverage afforded or benefits provided: 1. Persons related by blood, marriage or adoption to the insured."


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Andre D. Crockett, Defendant-Appellant.

    Court of Appeals

      No. 00-3053.

      Submitted on briefs May 4, 2001.

    Decided September 6, 2001.

    2001 WI App 235
    (Also reported in 635 N.W.2d 673.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook, Monroe.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 11-27-01.

   DYKMAN, J.

¶ 1. Andre D. Crockett appeals from an order denying his motion for postconviction relief under Wis. Stat. § 974.06 (1997-98), or in the alternative, for resentencing or sentence modification under the court's inherent authority. Although Crockett provides no sufficient reason for failing to assert the due process claim in one of his previous postconviction motions, he contends that the claim is not waived because the State failed to argue waiver in the trial court. We conclude that the State's failure to argue waiver does not prohibit this court from considering it on appeal and that State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), precludes Crockett's claim under § 974.06. We further conclude that Crockett's request for resentencing because his sentence was unduly harsh has already been adjudicated and that there are no new factors which justify modifying Crockett's sentence. We therefore affirm.

I. Background

¶ 2. In October 1993, Crockett was involved in a car chase in which Crockett and several others riding in the vehicle with him took turns shooting at a pick up truck as they were pursuing it. Crockett and four others in the car were arrested and charged. Pursuant to a plea agreement, Crockett pleaded guilty to six counts of being party to reckless endangerment while armed, contrary to Wis. Stat. §§ 941.30(1) and 939.63(1)(a)(3) (1991-92), and to one count of bail jumping, contrary to Wis. Stat. § 946.49(1)(b) (1991-92). The trial court sentenced Crockett to twenty-six years in prison.

¶ 3. Crockett then filed a motion and an amended motion for postconviction relief. In his amended motion, Crockett asserted four claims. Among these claims, Crockett argued that: (1) he was entitled to resentencing because the trial court gave him an excessively harsh sentence as compared to his codefendants and also because it improperly considered his gang affiliation in sentencing; and (2) the uneven sentences were a "new factor" that justified a sentence modification because he had been sentenced before his codefen-dants. The motion was denied and Crockett appealed two issues: (1) whether the uneven sentences were new factors that justified resentencing; and (2) whether the trial court properly considered Crockett's gang affiliation in sentencing. We affirmed. State v. Crockett, Nos. 95-2477-CR, 95-2940-CR, unpublished slip op. at 2 (Wis. Ct. App. Nov. 14, 1996).

¶ 4. In November 1997, Crockett filed a second motion in the trial court, this time alleging that the trial court lacked jurisdiction to sentence him because the State failed to file an information as required by Wis. Stat. § 971.01(2) (1991-92). The trial court denied this motion. Rather than appeal, Crockett filed a third motion in the trial court under Wis. Stat. §§ 974.06 and 973.13. Crockett argued that the trial court should allow him to withdraw his plea, order resentencing, or modify his sentence because he received ineffective assistance of counsel. In addition, he claimed that his plea was not made knowingly, intelligently, and voluntarily. The record does not indicate whether the trial court ever ruled on this motion.

¶ 5. Crockett filed a fourth motion in the trial court in August 2000. He requested that the trial court resentence him pursuant to Wis. Stat. § 974.06 because he had been denied his due process right to be sentenced based on accurate information. In the alternative, he requested that the trial court modify his sentence under its inherent power because the sentence was unduly harsh and because there was a new factor that justified a sentence modification. Specifically, Crockett contended that the trial court was unaware during his sentencing that: (1) there was no consensus among the defendants that Crockett did most of the shooting; (2) Crockett's codefendant, Jon J. Martin, was the only person claiming that Crockett had pressured Martin to reload the pistol; and (3) the State's recommendation for prison time for Crockett would be as much as twenty-six times greater than his codefen-dants. The trial court denied Crockett's motion and he appeals.

II. Analysis

A. Relief Under Wis. Stat. § 974.06

¶ 6. Wisconsin Stat. § 974.06(1) authorizes a court to vacate, set aside or correct a sentence when, among other things, it "was imposed in violation of the U.S. constitution or the constitution or laws of this state." Crockett claims that he is entitled to resentencing under § 974.06 because he was denied his due process right to be sentenced only upon materially accurate information. See State v. Lechner, 217 Wis. 2d 392, 419, 576 N.W.2d 912 (1998). Relying on State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), the State responds that Crockett waived this argument when he failed to raise it in his first postconviction motion.

¶ 7. Escalona-Naranjo held that Wis. Stat. § 974.06(4) bars defendants from bringing claims, including constitutional claims, under § 974.06 if they could have raised them in a previous postconviction motion or on direct appeal — unless they have a "sufficient reason" for failing to do so. Id. at 181, 184. Crockett does not claim to have a sufficient reason that would justify his failure to raise the due process issue in one of his three previous motions. Instead, he argues that the State has waived the right to assert a waiver defense because it failed to do so in the trial court. In support, Crockett relies on State v. Avery, 213 Wis. 2d 228, 570 N.W.2d 573 (Ct. App. 1997), in which we declined to invoke waiver under Escalona-Naranjo against a defendant when the State had failed to make the argument in the trial court. Id. at 248.

¶ 8. We disagree with Crockett's assertion that Avery precludes this court from considering whether he has waived his claims under Wis. Stat. § 974.06. Avery did not hold that we cannot or even that we should not impose the requirements of § 974.06 and Escalona-Naranjo when the State has failed to assert them at some stage in the litigation. Rather, we decided only that, in that case, we would exercise our discretion and decide the defendant's case on the merits rather than apply the waiver doctrine. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (holding that waiver is a rule of judicial administration, not jurisdiction, and that courts have discretion to make exceptions).

¶ 9. Although there may be situations such as Avery in which it is appropriate not to apply the waiver doctrine to a defendant when the State failed to assert it in the trial court, deciding not to apply it as a general rule would contradict the purposes of Wis. Stat. § 974.06 and Escalona-Naranjo. The supreme court stated that the primary purpose of the requirement that defendants consolidate all their postconviction claims in the first motion or appeal was to provide finality to criminal litigation. Escalona-Naranjo, 185 Wis. 2d at 178, 185. This purpose does not change in importance depending on whether the State makes a waiver argument in the trial court. Either way, the purpose is frustrated if defendants without a sufficient reason are allowed to raise claims that could have been asserted before. It makes little sense to make the application of the requirements of § 974.06 contingent on the State's litigation strategy when it is defendants, not the State, to which the requirements are directed. Furthermore, as we noted in State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84 (Ct. App. 1998), the policy against successive petitions is primarily concerned with wasting judicial resources. These resources will be wasted when successive motions are allowed regardless whether or not the State chooses to press the waiver issue.

¶ 10. Crockett has presented no reason why we should exercise our discretion and address his claim on the merits even though he could have raised it earlier. Unlike the defendant in Avery, Crockett has filed three previous motions requesting postconviction relief, the earliest dating back to 1994, and he could have asserted a due process claim in any of them. At some point, litigation must end. Furthermore, the claim that Avery failed to raise on appeal was based on the sheriffs department's hiding of evidence implicating another suspect, thus suggesting his possible innocence. Avery, 213 Wis. 2d at 246. There is no such evidence of a possible miscarriage of justice here. Therefore, we conclude that Escalona-Naranjo bars Crockett from asserting yet another constitutional claim.

B. Relief Under the Court's Inherent Power

¶ 11. Alternatively, Crockett argues that we should reverse the trial court's decision that his sentence was not unduly harsh as an erroneous exercise of discretion. Crockett further asserts that the trial court erred when it determined that there were no new factors justifying a modification of his sentence.

1. Claim That Sentence Was Unduly Harsh

¶ 12. Upon concluding that a sentence is unduly harsh or unconscionable, a trial court has the inherent authority to modify its original sentence. State v. Wuensch, 69 Wis. 2d 467, 480, 230 N.W.2d 665 (1975). Crockett claims that his sentence was unduly harsh as compared to his codefendants and that the trial court erred by failing to specifically address this claim in its order. That the trial court failed to state its reasons for denying this claim, however, makes no difference because this claim too is barred. Crockett raised this claim in his initial postconviction motion, but the motion was denied and Crockett failed to appeal the issue. Therefore, Crockett may not assert it again here. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).

2. Claim That Disparate Sentences Constitute a New Factor

¶ 13. Finally, Crockett contends that there are new factors justifying sentence modification. A court may modify a defendant's sentence if the defendant can show, by clear and convincing evidence, both that a new factor has arisen since sentencing, and that this new factor justifies modification of the sentence. State v. Michels, 150 Wis. 2d 94, 96-97, 441 N.W.2d 278 (Ct. App. 1989). The term "new factor" refers to a fact or set of facts highly relevant to the imposition of sentence but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997). Whether a set of facts constitutes a new factor is a question of law. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶ 14. We agree with the State that this claim fails because Crockett has failed to show that there are any new factors. Both the lack of consensus among codefen-dants that Crockett was the primary shooter and the lack of corroboration with Martin's claim that Crockett pressured Martin to reload the pistol were facts in existence at the time of sentencing. Although the trial court may have "unknowingly overlooked" these facts, Crockett does not claim that he was unaware of them as well. Therefore, these facts are not new factors. See Kluck, 210 Wis. 2d at 7 (holding that a fact in existence at the time of sentencing is "new" only if "unknowingly overlooked by all of the parties") (emphasis added).

¶ 15. Crockett's third asserted new factor is that both he and the trial court were unaware that the State's recommendation for prison time would be much greater for Crockett than for his codefendants, who were sentenced after Crockett. This argument is only a slight variation of the one that we previously rejected on Crockett's first appeal. The only difference is that, this time, Crockett emphasizes the State's recommendation for disparate sentences rather than the disparate sentences themselves. We do not view this as a relevant distinction. Rephrasing the same issue in slightly different terms does not create a new issue. Witkowski, 163 Wis. 2d at 990. Therefore, because this claim was litigated previously, it cannot be asserted again here. Id.

¶ 16. The State argues that this claim is also barred by Escalona-Naranjo because Crockett either already has or could have raised these arguments before. Because we have already affirmed the trial court's order denying Crockett's motion for postconviction relief on other grounds, we need not address this argument.

¶ 17. In sum, we conclude that each of Crockett's claims fails as a matter of law, and we therefore affirm the order of the trial court.

By the Court. — Order Affirmed.

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

       Each count was enhanced under Wis. Stat. § 939.62(1) (1991-92), the habitual criminality statute.

       Crockett also relies on McCleskey v. Zant, 499 U.S. 467 (1991), in which the Supreme Court held that the federal government has the burden in federal habeas cases to argue

        "abuse of the writ." Id. at 494. Some federal appellate courts have interpreted this rule as precluding the United States from asserting that the defendant has abused the writ when it failed to make the argument in district court. See, e.g., Aldridge v. Dugger, 925 F.2d 1320, 1325 (11th Cir. 1991).
      Of course, we are not bound by the Supreme Court's or federal appellate courts' holdings regarding federal habeas corpus law when we apply Wis. Stat. § 974.06. Moreover, there are important differences between the federal and state statutes that would suggest a different standard. The federal standard comes from Rule 9(b) of the Rules Governing § 2254 Cases, which states that a judge may dismiss a successive petition when "new and different grounds are alleged, [if] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."
      The difference, then, between the two statutes is clear. The federal statute assumes a successive petition raising a new claim is permissible unless the judge finds that the petitioner has abused the writ. In contrast, Wis. Stat. § 974.06 assumes that a successive petition is barred unless the defendant can provide a "sufficient reason" for failing to assert the claim earlier. These different assumptions suggest that while the burden is on the government to plead abuse of the writ under 28 U.S.C. § 2254, it is on the defendant to show a sufficient reason under Wis. Stat. § 974.06.


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Isaac Hughes, Defendant-Appellant.

    Court of Appeals

      No. 00-3176-CR.

      Submitted on briefs August 7, 2001.

    Decided September 11, 2001.

    2001 WI App 239
    (Also reported in 635 N.W.2d 661.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James Rebholz and Ann Auberry of Rebholz, Auberry & Malone, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 11-27-01.

   FINE, J.

¶ 1. Isaac Hughes appeals from a judgment convicting him of possession of cocaine with intent to deliver, within 1,000 feet of a school, see Wis. Stat. §§ 961.49(1)(b)6 & 961.49(2)(a)2f, and of resisting a law enforcement officer, see Wis. Stat. § 946.41(1). Hughes's case was tried to a jury. Although phrased in a variety of different ways, his sole claim on appeal is that the trial court erred when it entered judgment on the jury's finding that Hughes possessed cocaine with intent to deliver within 1,000 feet of a school, as was charged in the amended information, and disregarded the jury's verdict also finding that Hughes simply possessed the cocaine. Although he seeks a new trial on both the cocaine and obstruction charges, Hughes asserts no separate claim in connection with the jury's finding that he was also guilty of obstructing an officer. We affirm.

I.

¶ 2. The trial court gave the jury three separate verdict forms in connection with the cocaine charge. The first verdict form had two parts and read:

We, the jury, find the defendant, Isaac Hughes, guilty of Possession With Intent to Deliver Controlled Substance, Cocaine, as charged in the first count of the information.
Yes_No_
If you find the defendant guilty, you must answer the following question: "Did the defendant possess cocaine with intent to deliver while within 1,000 feet of a school?"
Yes_No_

The jury checked the "yes" spaces for each part, and the foreman signed and dated the form. The second verdict form had one part and read:

We, the jury, find the defendant, Isaac Hughes, guilty of Possession of Cocaine, an included offense, in violation of Section 961.41(3g)(c) of the Criminal Code of Wisconsin at the time and place charged in Count 1 of the information.

The foreman signed and dated this form as well. Although it is not in the record on appeal, the trial court also gave the jury a "not guilty" verdict form in connection with the cocaine charge.

¶ 3. The trial court instructed the jury that:

• If it was not satisfied that the State had proven that the defendant possessed cocaine with intent to deliver, it "must not find the defendant guilty of possession with intent to deliver," and "should consider whether the defendant is guilty of possession of cocaine."
• If it was satisfied beyond a reasonable doubt that the defendant knowingly possessed cocaine it "should find the defendant guilty of possession of cocaine."
• The jury was "not, in any event, to find the defendant guilty of more than one of the foregoing offenses," and that if it found the defendant guilty of possessing cocaine with intent to deliver the jury "must not find the defendant guilty of the other lesser included offense."

As noted, the jury found both that Hughes possessed cocaine with intent to deliver and that he possessed cocaine.

¶ 4. When the jury returned its verdicts, the trial court told the jury that it had done too much:

The concern I have deals with the verdict with respect to the lesser included offense, and the instructions in this regard indicates [sic] that if you find the defendant guilty of the charge of count one, possession with intent to deliver controlled substance-cocaine within a thousand feet of a school, then it is not necessary to answer this question of possession of cocaine, which is an included offense.

The trial court then conferred with counsel in an off-the-record sidebar, after which the trial court told the jury that it was going to poll the jurors individually "to make sure that the record is clear and that this was the verdict of the jury."

¶ 5. The trial court polled the jury and each juror affirmed that the verdicts were the verdicts to which he or she agreed. The trial court then discharged the jury, and granted the State's motion for "judgment of conviction on the verdict." Hughes's lawyer asked that the trial court enter a "judgment of not guilty on the verdict notwithstanding." Hughes's lawyer did not, on the record at least, ask that the trial court either: 1) direct that the jury choose between the two verdicts finding Hughes guilty in connection with the cocaine charge; 2) enter judgment on the simple possession verdict; or 3) take some other action. In response to the motion by Hughes's lawyer that the trial court find Hughes not guilty of the cocaine charge "notwithstanding" the verdicts, the trial court noted that it "found the testimony to be reasonable and credible, and found that the jury reached a true and fair verdict." Hughes's lawyer made no further comment or objection in connection with the verdicts; accordingly, it is safe to assume that his motion went to the sufficiency of the evidence to convict rather than the jury's return of two "guilty" verdicts in connection with the cocaine charge.

¶ 6. As we have seen, Hughes claims on appeal that the trial court should not have entered a judgment convicting him of the charge as framed by the information — namely, possession of cocaine with intent to deliver within 1,000 feet of a school. He contends that the verdict was "perverse and hopelessly ambiguous"; that by entering judgment on the verdict finding Hughes guilty of the possession-with-intent-to-deliver charge, the trial court "invaded the province of the jury," denied Hughes his constitutional right to a unanimous jury (despite the fact that when they were polled all of the jurors told the trial court that they agreed with each of the verdicts), and also endangered "the integrity of the jury trial process" by allegedly sanctioning the jury's disregard of the trial court's instructions. Hughes also asserts, in an alternative argument, that under "the rule of lenity" the trial court should have entered judgment on the lesser-included-charge of possession of cocaine. For the reasons we explain below, the trial court did not err.

II.

¶ 7. Although the State argues that Hughes waived his right to complain about the two "guilty" verdicts in connection with the cocaine charge because he did not object either before the trial court discharged the jury or in post-conviction motions, we believe that it is consistent with judicial economy to address Hughes's claims to avoid later ineffective-assistance-of-counsel proceedings. See Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145-146 (1980) (rule of waiver is one of judicial administration and not one of appellate jurisdiction).

¶ 8. Whether Hughes is entitled to either a new trial or entry of a judgment on the verdict form finding him guilty of simple possession of cocaine presents an issue of first impression in. Wisconsin. The issue has arisen in other jurisdictions, however, and no court has held that a trial court violates a defendant's rights by entering a judgment of conviction on a verdict finding the defendant guilty on the greater charge when the jury also finds the defendant guilty of the lesser-included offense.

¶ 9. We start with a common sense analysis of what the jury did. It is not possible for a person to possess cocaine with intent to deliver without also possessing that cocaine. Indeed, in the context of this case, that is the crux of what a lesser-included offense is: an "included crime" encompasses "[a] crime which does not require proof of any fact in addition to those which must be proved for the crime charged." Wis. Stat. § 939.66(1). See also State v. Dowe, 197 Wis. 2d 848, 851, 541 N.W.2d 218, 220 (Ct. App. 1995) ("An offense is a 'lesser-included' offense if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the 'greater' offense."), reversed on other grounds, 207 Wis. 2d 129, 557 N.W.2d 812 (1997). Thus, the jury's unanimous findings (confirmed when the trial court polled the jury) that Hughes possessed cocaine with the intent to deliver it, and that he also possessed that cocaine were not inconsistent. Additionally, Hughes does not explain beyond mere rhetoric how the jury's unanimous findings that Hughes both possessed cocaine and that he possessed that cocaine with intent to deliver it was either "perverse" or "ambiguous," or violated any of his rights — constitutional or otherwise. See State v. Schlise, 86 Wis. 2d 26, 29, 271 N.W.2d 619, 620 (1978) ("To simply label an alleged procedural error as a constitutional want of due process does not make it so."). Indeed, had the jury followed the trial court's instructions, the jury would have stopped after it unanimously found that Hughes possessed cocaine with intent to deliver within 1,000 feet of a school. Thus, the second "guilty" verdict, which affirmed that Hughes possessed that cocaine, was mere surplusage and is precisely the type of harmless error that Wis. Stat. Rule 805.18(2) commands shall not be the basis for a reversal:

No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of... misdirection of the jury ... or for error as to any matter of... procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

Rule 805.18(2) applies to criminal cases as well as civil cases. See Wis. Stat. § 972.11(1) ("Except as provided in subs. (2) to (5), the rules of. . . practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction."); State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222, 234 (1985) (recognizing applicability of Rule 805.18(2) to criminal cases).

¶ 10. As noted, our conclusion that the trial court did not violate any of Hughes's rights when it entered judgment convicting him of possessing cocaine with intent to deliver within 1,000 feet of a school is consistent with decisions from other jurisdictions. Thus, in People v. Robinson, 382 N.E.2d 759 (N.Y. 1978), the defendant was charged in connection with two separate drug transactions of: 1) sale of a controlled substance (which the court did not otherwise identify); 2) possession of that controlled substance with intent to sell; and 3) simple possession of that controlled substance. Id., 382 N.E.2d at 760. The trial court told the jury to return only one verdict in connection with each transaction. Ibid. As here, the jury in Robinson returned verdicts finding the defendant guilty of both possession with intent to deliver and simple possession. Ibid.

¶ 11. The trial court polled the jury, which "confirm[ed] the jury's intention to convict [Robinson] of both possession with intent to sell and simple possession of a controlled substance." Ibid. Robinson's lawyer objected to the two verdicts on each of the counts, and asked the trial court to return the verdicts to the jury and instruct it to reconsider. Ibid. The trial court refused, and, instead, entered judgment of conviction on both counts of possession with intent to sell. Ibid.

¶ 12. In affirming, Robinson held that "the jury's failure to comply with the court's instructions does not, per se, require resubmission of the case to the jury for reconsideration of its verdict" even though a New York statute provided that " '[i]f the jury renders a verdict which in form is not in accordance with the court's instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict.'" Id., 382 N.E.2d at 760-761. Robinson explained:

[I]t is abundantly clear that the jury intended to convict appellant of criminal possession of a controlled substance with intent to sell. Its additional finding that appellant was guilty of possession of a controlled substance was mere surplusage, in no way indicative of an inherent inconsistency. In fact, to a jury unschooled in the doctrine of lesser included offense, a verdict of guilty on those counts of the indictment charging criminal possession with intent to sell as well as those charging criminal possession of a controlled substance must appear quite consistent.

Id., 382 N.E.2d at 761-762 (internal citation omitted). Other courts have reached the same conclusion. See State v. Engram, 831 P.2d 362, 363-365 (Ariz. Ct. App. 1991) (affirming trial court's entry of judgment of conviction on the greater charge (second-degree burglary) when jury returned "guilty" verdicts on both the greater charge and its lesser-included offense (criminal trespass)) (collecting cases) (suggesting that error should have been pointed out to jury, which should have then been permitted to deliberate further); Sanchez v. State, 490 So. 2d 198, 200 (Fla. Dist. Ct. App. 1986) (affirming trial court's entry of judgment of conviction on the greater charge (trafficking in cocaine) when jury returned "guilty" verdicts on both the greater charge and its lesser-included offense (possession of cocaine)); United States v. Howard, 507 F.2d 559, 562, 563 (8th Cir. 1974) (affirming trial court's entry of judgment of conviction on the greater charge when jury returned "guilty" verdicts on both the greater charge (distribution of heroin) and its lesser-included offense (possession of heroin) even though it was instructed not to do so) (suggesting that error should have been pointed out to jury, which should have then been permitted to deliberate further).

¶ 13. Hughes also contends that the trial court erred by not, as phrased by him in his brief on this appeal, "applying the rule of lenity and entering a judgment of conviction on the jury's verdict of guilt of the lesser-included offense of possession of cocaine." (Uppercasing omitted.) Hughes recognizes that the rule of lenity is used in construing criminal statutes that may be ambiguous, State v. Kittilstad, 231 Wis. 2d 245, 267, 603 N.W.2d 732, 742 (1999) (rule or Wisconsin equivalent "does not apply unless a statute is ambiguous"), and contends that the verdicts here are also ambiguous so that the rule, or a newly fashioned equivalent, should be used to reduce the level of his conviction. As we have seen, however, the verdicts are not ambiguous; they reflect clearly the jury's conclusion that the State proved beyond a reasonable doubt that Hughes not only possessed cocaine, but, indeed, that he possessed it with intent to deliver. As the New York Court of Appeals explained in an excerpt that we have already quoted: "to a jury unschooled in the doctrine of lesser included offense, a verdict of guilty on those counts of the indictment charging criminal possession with intent to sell as well as those charging criminal possession of a controlled substance must appear quite consistent." Robinson, 382 N.E.2d at 761-762.

¶ 14. We are satisfied that although a better practice might have been for the trial court to have asked the jury to continue its deliberations and return only one verdict in connection with the cocaine charge (that is: guilty of possession of cocaine with intent to deliver within 1,000 feet of a school; guilty of possession of cocaine; or not guilty), the trial court did not deprive Hughes of any of his rights in proceeding as it did.

By the Court. — Judgment affirmed.

       Off-the-record conferences, such as the one held here, violate SCR 71.01(2) and SCR 71.02(2). We again caution trial judges not to hold off-the-record conferences with counsel. See State v. Mainiero, 189 Wis. 2d 80, 95 n.3, 525 N.W.2d 304, 310 n.3 (Ct. App. 1994).

       Wisconsin Stat. § 972.11(2)-(5) are not applicable here.