author: BROWN, J.

text:
    In re the Marriage of: Arlene Arnold, Petitioner-Respondent, v. David Arnold, Respondent-Appellant.

    Court of Appeals

      No. 03-1547.

      Submitted on briefs January 22, 2004.

    Decided February 4, 2004.

    2004 WI App 62
    (Also reported in 679 N.W.2d 296.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of David Arnold, pro se.
    On behalf of the petitioner-respondent, the cause was submitted on the brief oí Andrew C. Ladd of Ladd, Milaeger & Rebholz, LLP of Waukesha.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 4-20-04.

   BROWN, J.

¶ 1. David Arnold appeals from a custody and placement order. He was awarded placement of the children 102 days per year, not the 182.5 equal placement per year as he had requested. He wants equal placement and argues that Wis. Stat. § 767.24(4)(a) (2001-02) requires it, that recent case law saying otherwise is wrong or did not take into account a parent's constitutional right to equal participation in the raising of children, and that, on the facts here, there was no compelling reason to deny equal placement. We reject his arguments and affirm.

¶ 2. David acknowledges that the court in Keller v. Keller, 2002 WI App 161, ¶¶ 1-2, 10, 256 Wis. 2d 401, 647 N.W.2d 426, reversed a trial court's determination construing Wis. Stat. § 767.24(4)(a) to give equal placement to both parents unless the best interests of the child indicated otherwise. We held that while there is a statutory presumption of legal custody, there is no provision establishing a presumption of joint placement. Keller, 256 Wis. 2d 401, ¶¶ 12-13. We construed § 767.24(4)(a) to say that while the family court must provide placement to be regularly recurring and meaningful, this is not tantamount to a presumption of equal placement. Keller, 256 Wis. 2d 401, ¶ 12.

¶ 3. David asserts that Keller is wrong. He notes that Wis. Stat. § 767.24(4)(a)2 says that the court shall set a placement schedule which maximizes the amount of time the child may spend with each parent taking into account geographic separation and accommodations for different households. He looks to a dictionary definition of "maximize," which defines the word as "greatest quantity or degree." He claims that the statute is a legislative determination that the best interests of the child will be presumed to have been met when there is equal placement. He argues that Keller vetoes the statute.

¶ 4. The Wisconsin Court of Appeals is not at liberty to overrule its own published decisions. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). We are therefore bound by Keller.

¶ 5. Possibly in anticipation that we are bound by Keller as far as it relates to statutory interpretation, David argues that the Keller court did not consider the constitutional ramifications of its decision and implicitly argues that we are free to reconsider the issue in light of constitutional claims. We agree that we may do so since it was not an issue addressed in Keller.

¶ 6. The gist of David's argument is that, assuming Keller correctly interpreted the statute, the statute is unconstitutional because it violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. He claims that the physical placement statutes violate due process because they deprive him of a fundamental liberty interest in equally participating in the raising of his children. According to David, this violates substantive due process.

¶ 7. Substantive due process protects fundamental rights and "bars, among other things, certain arbitrary government actions, regardless of the fairness of the procedures used to implement them." State v. Radke, 2002 WI App 146, ¶ 6, 256 Wis. 2d 448, 647 N.W. 2d 873, aff'd, 2003 WI 7, 259 Wis. 2d 13, 657 N.W 2d 66. A statute that does not infringe a fundamental right will generally be constitutional if it is rationally related to a legitimate government interest. Id., ¶ 7.

¶ 8. David relies upon Troxel v. Granville, 530 U.S. 57 (2000), to argue that he has this fundamental right to equal placement periods with his children. Troxel involved a statute providing paternal grandparents a right to child visitation that the United States Supreme Court held violated the mother's rights to raise her children. Id. at 68-75. In doing so, the Court reaffirmed that the liberties protected by the due process clause include "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66.

¶ 9. David asks us to declare that the Wisconsin physical placement statutes are unconstitutional under this broad principal. David has a heavy burden ahead of him. Pursuant to State v. Lindsey, 203 Wis. 2d 423, 432, 554 N.W.2d 215 (Ct. App. 1996), our standard of review is as such:

A statute is presumed to be constitutional and will be held unconstitutional only if it appears so beyond a reasonable doubt. The burden of establishing the unconstitutionality of a statute is on the person attacking it, who must overcome the strong presumption in favor of its validity. (Citations omitted.)

¶ 10. With our standard of review in place, we hold that David has not met his heavy burden. First, the facts of this case are distinguishable from those in Troxel. A dispute between a parent and grandparents represents a far different dynamic than the dispute between two natural parents with equal rights after a divorce. The grandparents in Troxel simply did not have a fundamental right to the care and custody of the children as do the parents here. So, when the Troxel court was speaking of fundamental rights in the raising of children, it was speaking to the existing disparity between natural parents and grandparents.

¶ 11. Second, insofar as disputes between natural parents are concerned, while parents do have a natural right to care and custody of their children, this does not mean that parents have a "fundamental right" to "equal placement periods" after divorce. David has not demonstrated why, following a divorce between parents, the state does not have the right to arbitrate any dispute those parents may have over what happens to their children. See LeClair v. LeClair, 624 A.2d 1350, 1357 (N.H. 1993) ("The legislature contemplated the need to have . . . heightened judicial control over divorced families because of unique problems that exist in a home that is split by divorce."). We conclude that David has not met his heavy burden to show why the state should be foreclosed from allowing its courts to set placement schedules commensurate with the best interests of the children even if it means less than equal placement. His substantive due process argument fails.

¶ 12. The substantive due process discussion provides us with a nice transition to David's final argument on appeal that the family court misused its discretion when it did not give him the equal placement he demanded. We must remember that Wisconsin has given its courts the responsibility to arbitrate disputes involving custody and arrive at a solution which, in the courts exercise of discretion, is in the children's best interests. This is exactly what the family court did in this instance. The family court began its decision by acknowledging: "I see two parents who are absolutely, totally in love with their children, as it should be, and absolutely want to do the best that they can for those children." But the court noted the "hate" the parties had for each other and opined that the underlying animosity "totally clouds their decision-making process in regards to their children." The court said it was laden with the responsibility of determining the "fitness of each of the parents ... in terms of placement." While the court wished it could fashion a schedule that would avoid the parents from interacting with each other and from exposing the "hate, the animosity and the anger apparent, which is just going to .. . sour . . . [or] rub off on the children," it was wishful thinking. The court said the possibility of the parents working together just was not going to happen.

¶ 13. Then, the court pointed out specific situations where the parents' animosity toward each other poisoned the atmosphere. The court noted that the children attend private religious schools. The court was truly pained by the idea that it had to limit one parent's involvement in these religious-academic activities, but found that Arlene Arnold was better able to put aside that hate and work in the children's best interests than David. The court specifically found that David's inability to put it aside affected his parental decision-making skills. The court likened David's problem in this regard to "extreme emotional baggage." The court therefore concluded that under the circumstances, one parent had to make these decisions. The court found that David's "difficulty in dealing with the educational persons, the daycare people [and] the school people," led to the conclusion that the one person chosen to make the key decisions be Arlene. The family court thus fashioned a parental placement schedule that would benefit Arlene's decision-making duties. Fittingly, because these duties began with and ended with the school year, the court did order equal placement during the non-school summer months.

¶ 14. The decision of the family court represents a properly reasoned exercise of discretion based on the facts of record. David's arguments to the contrary are not availing.

By the Court. — Order affirmed.

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

       The day before we released this opinion, another court of appeals panel released Lofthus v. Lofthus, 2004 WI App 65, 270 Wis. 2d 515, 678 N.W.2d 393. Lofthus addresses similar issues and reaches a similar result. Both opinions are ordered published because while the appellants in the two cases challenge the same statute, they do so on different theories. We address only the arguments Arnold raises, while the Lofthus court addressed only those arguments raised by the parties in that case.

        See Barstad v. Frazier, 118 Wis. 2d 549, 556-57, 348 N.W.2d 479 (1984).


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    Herbert M. Schauer and Sandra S. Schauer, Plaintiffs-Respondents, v. Matthew S. Baker, Defendant-Appellant.
    Court of Appeals

      No. 02-1674.

      Submitted on briefs April 10, 2003.

    Decided February 5, 2004.

    2004 WI App 41
    (Also reported in 678 N.W.2d 258.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas A. Lorenson of Kubasta, Rathjen, Bickford, & Lorenson, Wautoma.
    On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of John F. Koenig of Sorenson Koenig Law Office, Ripon.
    Before Deininger, PJ., Vergeront and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. This is a prescriptive easement case involving a road that crosses Baker's property and is used by the Schauers for access to their property. The circuit court granted summary judgment to the Schauers which, in turn, grants to the Schauers a prescriptive easement to the road on Baker's property. Because we conclude that the "owner-in-possession" exception, Wis. Stat. § 893.33(5) (2001-02), does not extend to persons who hold a prescriptive easement, we reverse. Further, because there are no disputed issues of fact, we resolve this legal issue in favor of Baker and remand with directions that summary judgment be entered in favor of Baker.

Background

¶ 2. The Schauers brought an action for a prescriptive easement, pursuant to Wis. Stat. § 893.28(1), with respect to a road located on property owned by Baker. The Schauers moved for summary judgment, arguing that the undisputed facts showed that they and their predecessors had used the road on the Baker property to access their property continuously for 139 years. They contended this use satisfied the requirements of a prescriptive easement. Baker did not and does not challenge the Schauers' factual allegations. Rather, Baker moved for summary judgment on the ground that the Schauers' claim was barred by Wis. Stat. § 893.33(2).

¶ 3. The circuit court initially refused to grant summary judgment in favor of either party because, in the court's view, there were material disputed facts. Subsequently, the parties entered into a stipulation in which they agreed that the facts were undisputed and that summary judgment should be entered in favor of the Schauers, but specifying that Baker was reserving his right to challenge the judgment on appeal. Accordingly, the circuit court entered summary judgment in favor of the Schauers granting them a prescriptive easement to the road on the Baker property. Baker appeals.

Discussion

¶ 4. This is an appeal from a grant of summary judgment. We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

¶ 5. In this case, the Schauers and Baker agree on the size and location of the alleged easement. They further agree that the use necessary to satisfy the statutory requirements of a prescriptive easement had been continuously in place for more than fifty years at the time the Schauers filed their claim for a prescriptive easement in 1989. The only disputes here involve questions of law. First, there is a dispute regarding when the thirty-year time limit found in Wis. Stat. § 893.33(2) commenced. Second, the parties dispute whether a holder of a prescriptive easement is an "owner" in "possession" as those terms are used in § 893.33(5). We resolve each of these disputes in favor of Baker.

Commencement of the Thirty-Year Time Period in Wis. Stat. § 893.33(2)

¶ 6. The Schauers argue that the circuit court correctly interpreted Wis. Stat. § 893.33(2) when it held that the Schauers may prevail in this action if they can show that any twenty-year period of continuous adverse use — sufficient to satisfy Wis. Stat. § 893.28(1), the prescriptive easement statute — intersected with the most recent thirty-year time period prior to 1989 when the Schauers filed their claim. Since the parties now agree that the nature and duration of the use is uncontested, the Schauers contend they are entitled to summary judgment. However, we disagree with this interpretation of the statute.

¶ 7. The circuit court's reasoning seems to be that each additional day of adverse use of another's property moves forward in time the "event" triggering the thirty-year time limit in Wis. Stat. § 893.33(2), which reads, in pertinent part:

[N]o action affecting the possession or title of any real estate may be commenced... which is founded upon any .. . event occurring more than 30 years prior to the date of commencement of the action, unless . .. within 30 years after the date of the. . ■. event there is [an instrument or notice of claim recorded with the register of deeds].

(Emphasis added.) Such an interpretation is foreclosed by prior decisions of the supreme court. In Herzog v. Bujniewicz, 32 Wis. 2d 26, 145 N.W.2d 124 (1966), the court stated:

The transaction or event referred to in sub. (1) [now denominated subsection (2)] as applied to adverse possession means adverse possession for the period of time necessary under the circumstances to obtain title. Upon the expiration of such period of time the thirty-year period commences to run.

Id. at 31. See also O'Neill v. Reemer, 2003 WI 13, ¶ 10, 259 Wis. 2d 544, 657 N.W.2d 403; Leimert v. McCann, 79 Wis. 2d 289, 298, 255 N.W.2d 526 (1977). Thus, the supreme court has explained that the starting date for the thirty-year time period in Wis. Stat. § 893.33(2) commences when the requirements for the asserted interest have been met.

The Holder of a Prescriptive Easement is Not an Owner in Possession for Purposes of Wis. Stat. § 893.33(5)

¶ 8. The parties next dispute whether a holder of a prescriptive easement is an "owner" in "possession" within the meaning of Wis. Stat. § 893.33(5). Our holding on this issue is simple: the owner-in-possession exception found in § 893.33(5) does not apply to holders of a prescriptive easement because such holders are not "owners." Accordingly, once the right to a prescriptive easement has accrued — by virtue of compliance with Wis. Stat. § 893.28(1) for the requisite twenty-year time period — the holder of the prescriptive easement must comply with the recording requirements within thirty years, as required by § 893.33(2), or lose his or her right to continued use. Applied here, our legal conclusion means that because the Schauers' right to a prescriptive easement with respect to the road on Baker's property accrued sometime before 1968, the thirty-year time limit in § 893.33(2) applies to bar the Schauers' 1998 prescriptive easement claim. While our holding is simple to state and apply to the undisputed facts in this case, the reasons we believe the statutes and the case law compel this result are not so simple.

¶ 9. We are called on to interpret the owner-in-possession exception, contained in Wis. Stat. § 893.33(5), to the thirty-year recording requirement contained in § 893.33(2). The actual statutory language is this: "person who is in possession of the real estate involved as owner." But we, like other courts, use the shorthand phrase: "owner-in-possession."

¶ 10. We must interpret the owner-in-possession exception and apply it to undisputed facts. Questions of statutory construction or the application of a statute to undisputed facts are questions of law on which we do not defer to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). When we interpret and apply statutes, our aim is to discern the intent of the legislature, and we look first to the language of the statute. McEvoy v. Group Health Coop., 213 Wis. 2d 507, 528, 570 N.W.2d 397. (1997). If the language clearly and unambiguously sets forth the legislative intent, we apply that language to the facts at hand. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). Only when statutory language is ambiguous may we examine other construction aids, such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986).

¶ 11. The statutes at issue create a thirty-year recording requirement and an owner-in-possession exception to that requirement. The Schauers and Baker agree that, apart from the owner-in-possession exception, the thirty-year time limit in Wis. Stat. § 893.33(2) applies to both adverse possession and prescriptive easement claims. The thirty-year recording requirement in § 893.33(2) provides, in pertinent part:

[N]o action affecting the possession or title of any real estate may be commenced... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless ... within 30 years after the date of the. . . event there is [an instrument or notice of claim recorded with the register of deeds].

The owner-in-possession exception to this thirty-year recording requirement, contained in § 893.33(5), provides:

[The thirty-year recording requirement] does not apply to any action commenced ... by any person who is in possession of the real estate involved as owner at the time the action is commenced.

¶ 12. In O'Neill, the supreme court held that this owner-in-possession exception in Wis. Stat. § 893.33(5) applies to parties that have gained ownership by virtue of adverse possession. O'Neill, 259 Wis. 2d 544, ¶ 28. The question here is whether the owner-in-possession exception applies to holders of a prescriptive easement. More specifically, the question is whether a person who meets the requirements of a prescriptive easement user is an "owner" in "possession" within the meaning of § 893.33(5).

¶ 13. The Schauers argue that the distinction between adverse possession and prescriptive easement "is in the possession . . . and not in the ownership." The Schauers assert: "While [holders] of a prescriptive easement may not fit the strictest definition of an owner, they nevertheless do own a right to continue their adverse use of the easement." The Schauers rely on the following language from a law review article quoted in O'Neill-.

"[The owner-in-possession exception] exempts from the operation of the act owners in possession. The term 'owner' as therein used means simply the person who, either himself or in privity with others, has had possession or dominion over the property during the last ten or twenty years."

O'Neill, 259 Wis. 2d 544, ¶ 28 (quoting Roy G. Tulane and Ralph E. Axley, Title to Real Property — Thirty Year Limitation Statute, 1942 Wis. L. Rev. 258, 264). The Schauers do not assert that they are "owners" in any commonly used sense of the word. Rather, they contend they exercised "dominion over a portion of [the Baker] property and therefore have the right to continue [] that use." The Schauers also seem to assert they were "owners" of a "right of access" and therefore "owners" within the meaning of the exception.

¶ 14. The Schauers attempt to explain why their interpretation of the owner-in-possession exception is consistent with the intent and policy discussion in O'Neill. Effectively, the Schauers argue that it makes just as much sense to apply the owner-in-possession exception to prescriptive easement "owners" as it does to apply the exception to adverse possession owners.

¶ 15. Baker contends that the Schauers were never "owners" because they neither possessed nor owned the road on Baker's property. Baker further notes that it is undisputed that the Schauers and their predecessors knew that Baker and his predecessors were the owners of the driveway. Baker points out that, in O'Neill, the supreme court explained that at the end of a twenty-year period of adverse possession, the adverse possessor is the owner by operation of law and, therefore, an owner-in-possession within the meaning of Wis. Stat. § 893.33(5):

In adverse possession cases, it is the record title to the property that has lain dormant and stale. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished.

O'Neill, 259 Wis. 2d 544, ¶ 30. In contrast, Baker argues, the right obtained by prescriptive easement is only the right of continued use. In Baker's view, the Schauers are asking this court to rewrite § 893.33(5) so it reads: "any person who has a prescriptive right in real estate owned and possessed by another."

¶ 16. We agree with the assessment of both parties that the supreme court in O'Neill did not resolve whether the owner-in-possession exception applies to holders of prescriptive easements. Indeed, the O'Neill court explained that Leimert — the only supreme court case discussing the application of the thirty-year time limit in Wis. Stat. § 893.33(2) to prescriptive easements —did not have occasion to address whether the owner-in-possession exception applies to prescriptive easements. O'Neill, 259 Wis. 2d 544, ¶ 23.

¶ 17. The Schauers do not and could not plausibly argue that the holder of any interest in real property constitutes ownership for purposes of Wis. Stat. § 893.33(5) because such a reading is contrary to the plain language of the statute. Section 893.33(5) reads, in part: "This section [including subsection (2)] bars all claims to an interest in real property . ..." (Emphasis added.) Thus, by its own language, the thirty-year time limit in § 893.33(2) is intended to cover interests in property establishing some right to the property in question. If any interest in property qualified as ownership, the exception would swallow the rule.

¶ 18. Accordingly, we focus our attention on the term "easement" so that we may determine whether the holder of an easement is an owner-in-possession. While we must give words their common meaning when interpreting a statute, "[i]t is also 'well established that technical words or phrases with a peculiar meaning in the law must be construed according to such meaning.'" Bruno v. Milwaukee County, 2003 WI 28, ¶ 8, 260 Wis. 2d 633, 660 N.W.2d 656 (quoting Weber v. Town of Saukville, 209 Wis. 2d 214, 224, 562 N.W.2d 412 (1997)). Black's Law Dictionary defines easement as:

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).

Black's Law Dictionary 527 (7th ed. 1999). This definition expressly states that the land in question is owned by another.

¶ 19. As commonly used, a prescriptive easement does not denote ownership. See, e.g., Shearer v. Congdon, 25 Wis. 2d 663, 670, 131 N.W.2d 377 (1964) ("Respondents neither claim ownership of the road nor that appellants trespassed, but merely seek a prescriptive easement."); see also Urban v. Grasser, 2001 WI 63, ¶ 18, 243 Wis. 2d 673, 627 N.W.2d 511 (an easement interest in property is "only a right to use the land not inconsistent with the general property of the servient owner"); Shellow v. Hagen, 9 Wis. 2d 506, 511-12, 101 N.W.2d 694 (1960) (though "[t]he method by which a prescriptive easement is acquired is analogous to the method by which title is obtained by adverse possession," the analogy must nonetheless "tak[e] into account the difference in the physical nature of the acts of possession and use").

¶ 20. Thus, the Schauers are not owners of the property subject to the prescriptive easement under any common definition of "owner" that we have uncovered. Still, the Schauers argue they were owners-in-possession because they exercised "dominion" over the access road. They rely on that part of the definition of "owner" in the 1942 Wisconsin Law Review article stating " 'owner'... means simply the person who ... has .. . dominion over the property." See O'Neill, 259 Wis. 2d 544, ¶ 28 (quoting Roy G. Tulane and Ralph E. Axley, Title to Real Property — Thirty Year Limitation Statute, 1942 Wis. L. Rev. 258, 264 (citation omitted)).

¶ 21. This argument, however, simply begs the question: What does "dominion" mean in the context of an easement? Once more turning to Black's, we find that dominion is defined as "[c]ontrol" and "possession." Black's Law Dictionary 502 (7th ed. 1999). In case law, dominion typically appears in conjunction with the word "control." See, e.g., Nischke v. Farmers & Merchs. Bank & Trust, 187 Wis. 2d 96, 111, 522 N.W.2d 542 (Ct. App. 1994). In at least one case, the supreme court seemingly assumed that a non-exclusive right of way does not constitute "dominion." See Lintner v. Office Supply Co., 196 Wis. 36, 50, 219 N.W. 420 (1928) (the "owner of a right of way, unless expressly made exclusive, does not acquire dominion over the property affected, but is entitled 'only to a reasonable and usual enjoyment thereof " (citation omitted)). None of these sources suggest that the holder of an easement has "dominion" over the property, owned by another, that they use. The Schauers say only that they have "used" the driveway; they do not explain why that use constitutes "dominion."

¶ 22. We conclude, therefore, that the owner-in-possession exception in Wis. Stat. § 893.33(5) unambiguously excludes from its coverage holders of a prescriptive easement. Applied here, our legal conclusion means that because the Schauers' right to a prescriptive easement with respect to the road on Baker's property accrued sometime before 1968, the thirty-year time limit in § 893.33(2) applies to bar the Schauers' 1998 prescriptive easement claim.

¶ 23. Furthermore, even if we concluded that the owner-in-possession exception language in Wis. Stat. § 893.33(5) were ambiguous, we would not resolve that ambiguity in favor of the Schauers. Application of the thirty-year recording requirement to holders of prescriptive easements, as contrasted with owners by adverse possession, furthers the purpose of the statute because holders of prescriptive easements are, as here, typically on notice that they are using the property of another. In contrast, adverse possession claims often involve possessors operating under the mistaken belief that they are owners with no need to record title. See O'Neill, 259 Wis. 2d 544, ¶ 31.

¶ 24. Finally, we observe that the supreme court in O'Neill suggests, but does not hold, that there is a distinction between adverse possession and prescriptive easement matters for purposes of the owner-in-possession exception. While critiquing this court's reliance on Leimert in Shelton v. Dolan, 224 Wis. 2d 334, 591 N.W.2d 894 (Ct. App. 1998), the supreme court noted: "Further, Leimert is a prescriptive easement case, and [the court of appeals in Shelton] acknowledged that one could argue that a person who has a prescriptive easement does [not] have sufficient ownership rights to qualify as an owner-in-possession." O'Neill, 259 Wis. 2d 544, ¶ 23. The obvious suggestion contained in this critique is that the argument — that a person who has a prescriptive easement does not qualify as an owner-in-possession — has validity.

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

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

       We have added a "not" to this text from O'Neill because we conclude this is what the supreme court must have meant to include. At this point in O'Neill, the supreme court is referring to the following passage from Shelton: "We agree that, based on the language of the owner-in-possession exception, one could argue that a person who establishes title by adverse possession is an owner of the property, and therefore exempt from § 893.33, Stats., altogether, whereas a person who establishes a prescriptive easement is not an owner in possession and therefore not exempt." Shelton v. Dolan, 224 Wis. 2d 334, 343, 591 N.W.2d 894 (Ct. App. 1998) (emphasis added).


author: DYKMAN, J. VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard A. Moeck, Defendant-Appellant.
    Court of Appeals

      No. 03-0002-CR.

      Submitted on briefs November 7, 2003.

      Decided February 5, 2004.

    2004 WI App 47
    (Also reported in 677 N.W.2d 648.)

      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 Daniel J. O'Brien, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Vergeront and Higginbotham, JJ.

       Petition to review granted 5-12-04.

   DYKMAN, J.

¶ 1. Richard A. Moeck appeals from a judgment of conviction and an order denying postcon-viction relief. He asserts that his fourth trial constituted double jeopardy because there was no manifest necessity to order a mistrial in his third trial. We agree that the fourth trial violated Moeck's constitutional protection against double jeopardy and reverse.

BACKGROUND

¶ 2. This case has an extensive history. Moeck was tried four times on charges including two counts of sexual assault, false imprisonment, intimidating a victim, and robbery. We omit the details of these charges because they are not probative of the issues on appeal. We focus on the third trial, where the pertinent facts concern Moeck's opening statement and the trial court's deliberation regarding the mistrial. Moeck's third trial was held before Judge Dennis Montabon.

¶ 3. Moeck's opening statement provided an alternate theory for what happened during the alleged assault. His counsel told the jury that the alleged victim arrived at Moeck's home in the middle of the night under the influence of drugs and asked for a place to sleep, but no sexual acts occurred between him and the alleged victim. Moeck never presented any evidence at trial, however, to support this alternate theory. After the State rested its case, Moeck decided not to testify. His counsel asserted that he did not know Moeck would not testify until after the State presented its case.

¶ 4. At the close of the trial, the State requested that the trial court instruct the jury to disregard the unsupported theory Moeck proffered in the opening statement. Moeck asserted that the court could resolve the problem with a jury instruction.

¶ 5. The trial court considered Moeck's opening statement improper, reasoning that a defendant cannot tell a jury what the evidence will show and then not show it. It maintained that Moeck should have reserved his opening statement until after the State's case if he was considering not testifying. The trial court believed that the State was "in a bind in argument because they can't directly comment on the defendant not testifying" because of the right not to incriminate oneself. The trial court then proposed a jury instruction to resolve the impropriety, which read: "Remarks of the attorneys are not evidence. If the remarks implied the existence of certain facts not in evidence, disregard any such implication and draw no inference from the remarks." However, it gave the State the option of choosing between the jury instruction and a mistrial:

THE COURT: Do you want to go ahead or not? I mean, I told [the State], it's on the record, I'm not gonna take it back, I think under — the State under the circumstances now would be entitled to a mistrial if they wanted one. My logic for that is that scenario is in the jury's mind without subject, as we do in trials, to cross-examination.
[THE STATE]: I think I'm gonna ask for a mistrial, Judge. I'm not gonna be able to erase those facts. I can't argue them on — in my oral argument because I didn't have a chance to cross-examine him about it. It's not even out there before the jury.

The trial court declared a mistrial.

¶ 6. Prior to his fourth trial, Moeck moved to dismiss the complaint on double jeopardy grounds. The trial court denied the motion in a written opinion. Moeck petitioned this court for leave to appeal. We granted the petition and summarily affirmed, reasoning that the trial court's written opinion "applie[d] the proper legal standard to the relevant facts and reache[d] the correct conclusion." However, we failed to review the transcript showing the trial court's reasoning when it granted the State's request for a mistrial.

¶ 7. At the hearing on Moeck's motion to dismiss, Moeck told Judge Montabon that he wanted a speedy trial, and complained that he had been subjected to prosecution for over three years. Because the trial court's calendar was filled, the case was assigned to Judge Michael Kirchman. At Moeck's fourth trial, the jury convicted him of all charges. In motions after verdict, Moeck asserted that the fourth trial constituted double jeopardy. Judge Kirchman denied the motion in a written opinion.

STANDARD OF REVIEW

¶ 8. This appeal requires us to review whether the trial court erred when it determined there was a manifest necessity to terminate the third trial. We must first determine which trial court decision we review. Moeck's notice of appeal shows that he is appealing from the judgment of conviction, sentence, and order denying postconviction relief, which are all Judge Kirchman's decisions. Ordinarily, we would review those decisions. But State v. Seefeldt, 2003 WI 47, ¶ 13, 261 Wis. 2d 383, 661 N.W.2d 822 (citation omitted), holds otherwise:

A circuit court's exercise of discretion in ordering a mistrial is accorded a level of deference that varies depending on the particular facts of the case. Regardless of the level of deference to be applied, an appellate court must, at a minimum, satisfy itself that the circuit court exercised sound discretion in ordering a mistrial.

This language from Seefeldt leaves no alternative to reviewing the transcript of Judge Montabon's decision when he granted the State's request for a mistrial, despite the fact that we are reviewing a judgment of conviction and an order rendered by Judge Kirchman.

¶ 9. We adhere to the following guidelines when reviewing the trial court's discretion:

Sound discretion means acting in a rational and responsible manner. Sound discretion includes, without limitation, acting in a deliberate manner taking sufficient time in responding to a prosecutor's request for a mistrial. It requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel. Sound discretion is not exercised when the circuit court fails to consider the facts of record under the relevant law, bases its conclusion on an error of law or does not reason its way to a rational conclusion.

Id., ¶ 36. The Wisconsin Supreme Court applied these guidelines in Seefeldt, 261 Wis. 2d 383. The court did not specify exactly what level of deference it gave the trial court's decision "because, regardless of the level of deference, [it] determine [d] that the circuit court did not exercise sound discretion in ordering the mistrial." Id., ¶ 34. It clarified, though, that cases where the prosecutor requests a mistrial do not always require strict scrutiny. Id., ¶ 33. It declared such a rule too broad; rather, the level of deference depends on the facts of the case. Id.

¶ 10. For the reasons discussed below, we conclude that the trial court erroneously exercised its discretion; even great deference would not alter our conclusion.

DISCUSSION

¶ 11. Moeck asserts that the fourth trial violated his right against double jeopardy because there was no manifest necessity to terminate the third trial. He offers several reasons for why the opening statement was lawful. Primarily he argues that his attorney made his opening statement with the reasonable expectation that Moeck would testify. He notes that he had testified in two of his other trials. He also argues that a curative instruction would have adequately dispelled any prejudice resulting from the opening statement. He claims the trial judge did not make a reasoned determination that a mistrial was necessary, as opposed to a curative instruction.

¶ 12. We turn to Seefeldt for guidance on this issue. In that case, the State moved for a mistrial because the defendant violated a pretrial order by mentioning other acts evidence in his opening statement. The trial court granted the State’s motion because it determined a curative instruction could not remove the prejudicial impact of the statement. Id., ¶ 9. The supreme court concluded that the trial judge did not exercise sound discretion because the defendant's controversial statements "would likely have been admissible during trial and the record does not reflect that the judge considered whether the evidence would ultimately be admissible." Id., ¶ 38. Additionally, it found the trial court's deliberation to be inadequate:

[T]he trial judge did not provide sufficient opportunity for the parties to present, and for the judge to consider, arguments regarding whether a mistrial should be ordered and the possible alternatives to a mistrial.

Id. The brief hearing the trial court held did not allow the parties "a full opportunity to explain their positions on the propriety of a mistrial." Id., ¶ 42. It also considered the trial court's reaction to the violation of the pretrial order to be severe:

We recognize that it appears that defense counsel violated a pretrial order when he made the statements .... However, this is not a basis for a mistrial unless the violation creates that high degree of necessity required by the double jeopardy clause ....
Further, although the trial judge expressed his belief that no cautionary instruction could cure the improper comment, this belief seems to be unfounded because the evidence was likely admissible .... [Tjhe record does not reflect that the trial judge explored alternatives to granting a mistrial, such as imposing sanctions on defense counsel.

Id., ¶¶ 40-41.

¶ 13. Applying Seefeldt, we conclude the trial court erred by not exercising its discretion. The record shows that the trial court allowed the State to determine whether there was manifest necessity to terminate the third trial. Such discretion resides only with the judiciary. Further, the record does not support a determination that there was a high degree of necessity for a mistrial. The trial court did not consider the alternative of imposing sanctions on counsel, if a sanction was warranted. The record also shows that the trial court would have considered its proposed jury instruction a proper cure, if the State wished to pursue that alternative.

¶ 14. The State asserts that a jury instruction would not have cured the opening statement because it would have reminded the jury that Moeck did not testify. The State provides no authority for this argument. Moeck contends Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420 (1969) controls this issue. In that case, the prosecutor failed to produce evidence he forecasted in his opening statement because a witness invoked his privilege against self-incrimination. Id. at 733. The Supreme Court reasoned that a curative instruction may suffice when the error was "no more than an objective summary of evidence which the prosecutor reasonably expected to produce." Id. at 736. It considered persuasive the fact that the jury was told the opening statement was not evidence. Id. at 735. The Wisconsin Supreme Court has likewise reasoned that "improper remarks by a prosecutor are not necessarily prejudicial where objections are promptly made and sustained and where curative instructions and admonitions are given by the court." Hoppe v. State, 74 Wis. 2d 107, 120, 246 N.W.2d 122 (1976). We consider these principles applicable here, where defense counsel has made assertions in an opening statement which were not borne out by the evidence. In light of the constitutional safeguards against prosecutorial misconduct, it is illogical that a prosecutor, but not defense counsel, may cure such a statement with a jury instruction.

¶ 15. Accordingly, we conclude a proper jury instruction would have resolved the issue. We also disagree with the State's contention that it was unable to address the unsupported assertions in its closing statement. The State could have quoted the proposed jury instruction to stress that opening statements are not evidence the jury could use in deliberations. This comment would not have violated Moeck's privilege against self-incrimination as the State suggests. An attorney's failure to produce promised evidence is not lost on a jury. The result can be devastating.

¶ 16. The State also argues that the trial court gave the parties ample opportunity to discuss the impact of the improper argument. It distinguishes Seefeldt, where the trial court declared a mistrial immediately following the offending argument, because the trial court here waited until the close of Moeck's evidence to declare a mistrial. We do not consider this distinction persuasive. Here, the trial court held a brief hearing immediately at the close of evidence, which is the first time the trial court knew that no evidence supported Moeck's statements. It declared the mistrial that same day, as in Seefeldt. And it let the State decide whether the court should grant a mistrial.

¶ 17. Seefeldt recognized the importance of fair deliberation on the issue of manifest , necessity. Here, there was little deliberation because the trial court left the mistrial decision up to the State. The hearing in this case falls short of allowing the parties a full opportunity to argue the propriety of a mistrial.

¶ 18. The State also argues that the parties were able to fully present their positions at the hearing in front of Judge Montabon regarding Moeck's motion to dismiss. However, the purpose of giving the parties an adequate, pre-mistrial opportunity to argue their positions is to make sure that the court considers all aspects in exercising its discretion. An opportunity to argue after that decision has been made and the jury dismissed does not serve that purpose. Even though Moeck and the State were able to argue their positions later, that does not change the fact that the trial court delegated the mistrial decision to the State after initially concluding that a curative instruction would have sufficed.

¶ 19. Finally, the State urges us to apply the law of the case doctrine. It argues that we have already rejected Moeck's double jeopardy challenges in his interlocutory appeal and postconviction habeas corpus action and that Moeck has not offered anything new to warrant a different result in this action. Moeck contends that we should not bind him to the law of the case because the Wisconsin Supreme Court decided Seefeldt after our prior rulings. He also notes that our prior rulings were summary dispositions that did not have the benefit of full briefing.

¶ 20. The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989) (citation omitted). We are not bound to follow the doctrine, however. Id. at 38-39 (clarifying the doctrine is not "a rule to be inexorably followed in every case"). We may disregard it in the interest of justice or "in certain circumstances when 'cogent, substantial, and proper reasons exist.'" Id. at 39 (citation omitted).

¶ 21. Those circumstances are present here. When we reviewed Moeck's petition for review, we examined Judge Montahon's written order and not his oral decision on the State's motion for a mistrial. Though the two are similar in some respects, the oral decision makes clear that the trial court left the mistrial decision up to the State. The trial court would have given a curative instruction had the State requested that instead of a mistrial. And the court reasoned that defense counsel's failure to produce evidence promised in opening statement necessitated a mistrial. Had we reviewed the transcript, we would have observed this.

¶ 22. In sum, we conclude that the record does not support a determination that there was manifest necessity to terminate the third trial. There was no such necessity: a curative instruction would have sufficed and the State could have reminded the jury that the trial court would instruct them that defense counsel's statements were not evidence. The State could have embellished and commented upon this instruction at length without infringing on or even mentioning Moeck's right not to incriminate himself.

¶ 23. We do not reach the underlying issue of whether a defendant's attorney may mention facts in an opening statement and then fail to support those facts at trial because the defendant fails to testify. The State does not address this issue on appeal, though defendant's decision not to testify was the reason the State gave at trial for desiring a mistrial. Thus, we have no guidance on how the defendant's ultimate decision whether to testify squares with his attorney's pretrial decision to make an opening statement before the State presents its case. See State v. Albright, 96 Wis. 2d 122, 133 n.8, 291 N.W.2d 487 (1980) ("The defendant should be given the ultimate decision on waiving the right to testify."). Forcing a defendant to choose between testifying and a mistrial because counsel has made an opening statement forecasting the defendant's testimony raises a question the parties have not briefed. Nor have the parties fully briefed whether defense attorneys must forego opening statements because they are not positive that their clients will testify. Instead, we con-elude that the trial court erroneously exercised its discretion because, like the trial court in Seefeldt, it did not exercise its discretion when it allowed the State to chose between a curative instruction and a mistrial, and by failing to explore alternatives to a mistrial.

By the Court. — Judgment and order reversed.

VERGERONT, J.

¶ 24 {concurring). I write separately to comment on an issue referred to in ¶ 23— whether counsel acted improperly, as the trial court stated, in giving Moeck's version of events in opening argument and then not presenting evidence of that version. Although Moeck argues that the trial court erred in concluding this was improper, the State does not develop an argument in support of the trial court's conclusion. That is one reason we should not address the issue. However, the more important reason in my view — one that the majority opinion does not mention — is that under State v. Seefeldt, 2003 WI 47, ¶¶ 40-41, 261 Wis. 2d 383, 661 N.W.2d 822, even if a defense counsel's conduct is improper, that is not a basis for a mistrial unless that conduct creates the high degree of necessity required by the double jeopardy clause. In Seefeldt the court held that defense counsel's statements in violation of a pretrial court order were not a basis for a mistrial unless the violation created that high degree of necessity required by the double jeopardy clause. Id., ¶ 40. Thus, whether or not defense counsel here should have done something other than what he did — and I am not suggesting that he should have — the trial court still had an obligation to exercise its discretion by exploring alternatives to a mistrial. See id., ¶ 41. I agree with the majority opinion that the trial court here did not do that.

¶ 25. As for the reference in ¶ 23 to a defendant's right not to testify, neither the trial court nor the State has suggested that Moeck did not have the right not to testify. I therefore see no reason to mention this issue.

¶ 26. For these reasons, I respectfully concur.

       Moeck also argues: (1) the State's thirty-three month delay in testing evidence violated his rights to due process, to present a defense, against self-incrimination, and to compulsory process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and art. I, secs. 7 and 8 of the Wisconsin Constitution; (2) the State's closing argument violated these same rights; and (3) his counsel was ineffective. He also brings to our attention State v. Zimmerman, 2003 WI App 196, 266 Wis. 2d 1005, 669 N.W.2d 762, review denied, 2004 WI 20, 269 Wis. 2d 199, 675 N.W.2d 805, decided after briefing was completed. Because the double jeopardy issue is dispositive, we need not address these arguments or consider Zimmerman.

       The trial court asked the State: "Is that your final answer, Ms. Matousek?" When the State's attorney answered, "yes," the court declared a mistrial.

       "The Supreme Court refined its definition of 'manifest necessity'... [and] held that while the word need not be interpreted literally, a 'high degree' of necessity must be found 'before concluding that a mistrial is appropriate.'" State v. Barthels, 174 Wis. 2d 173, 183, 495 N.W.2d 341 (1993) (quoting Arizona v. Washington, 434 U.S. 497, 506, 98 S. Ct. 824 (1987)).

       We find it curious that the State complains of harm to the defendant though the defendant would have been satisfied with the instruction.


author: WEDEMEYER, EJ.

text:
    State of Wisconsin ex rel. Raymond Booker, Petitioner-Appellant, v. David Schwarz, Respondent-Respondent.
    Court of Appeals

      No. 03-0217.

      Oral argument December 17, 2003.

    Decided February 10, 2004.

    2004 WI App 50
    (Also reported in 678 N.W.2d 361.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of John A. Pray, Mary Prosser and Byron Lichstein of the Frank J. Remington Center, University of Wisconsin Law School, Madison. There was oral argument by Byron Lichstein.

    On behalf of the respondent-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager,
      attorney general and Christopher G. Wren, assistant attorney general. There was oral argument by Christopher G. Wren.

    Before Wedemeyer, EJ., Fine and Schudson, JJ.
   WEDEMEYER, EJ.

¶ 1. Raymond Booker appeals from a circuit court order denying his petition for writ of certiorari, wherein he requested reversal of the refusal of the Division of Hearings and Appeals to reopen his revocation proceedings based on newly discovered evidence. Booker claims the Division acted unreasonably and outside the law in denying his motion, which requested either a new probation revocation hearing or an evidentiary hearing to determine whether newly discovered evidence entitled him to a new revocation hearing. He asks this court to reverse the Division's order and remand for an evidentiary hearing on his motion to address his claim that newly discovered evidence justifies re-opening the revocation proceedings. Because Booker's post-revocation motion contained sufficient facts to entitle him to an evidentiary hearing on his newly discovered evidence claim, we reverse the order and remand this matter to the Division for such evidentiary hearing.

I. BACKGROUND

¶ 2. On July 14, 1993, Booker was convicted of burglary and sentenced to a ten-year prison term, which was stayed. Booker was placed on six years' probation. After three years on probation, the Division recommended that Booker's probation be revoked. The revocation recommendation was based on an incident which occurred on August 12, 1996. Booker was walking on a sidewalk near his house when a vehicle being driven by Dennis Adams approached. Adams stopped the vehicle near Booker and Booker recognized a passenger, Myles Marshall. Marshall exited the vehicle and Booker and Marshall walked along the sidewalk talking. They discussed a 1989 incident, wherein Marshall pointed an air gun in Booker's face and pumped it twice. Booker believed the gun was real and Marshall told Booker the only reason Booker was alive was because the gun jammed.

¶ 3. The two men returned to the Adams vehicle. As Marshall reached for the door handle, Booker hit him. The exact nature of the hit was disputed. Booker claimed he pushed him because he thought Marshall was reaching for a shotgun to kill him. Marshall stated that Booker punched him three times, once in the chest, once in the stomach and once to his wrist, breaking it in three places. Marshall denied that he was reaching for a gun; he maintained that he asked Adams to "hand me that thing," referring to a bar that locks the steering wheel.

¶ 4. At the revocation hearing, Booker and Marshall testified as to their own version of events. Booker stated he was acting solely in self-defense. Marshall described Booker as the aggressor. The administrative law judge (ALJ) found Marshall to be credible and found that Booker's claim of self-defense was not credible. On November 12, 1996, Booker's probation was revoked for violating rule #1 of his probation, and he began serving the ten-year burglary sentence. Booker appealed to the Division, which affirmed the ALJ's revocation decision.

¶ 5. On April 23, 2002, Booker filed a motion with the Division seeking to vacate the revocation or, in the alternative, an evidentiary hearing to determine whether newly discovered evidence entitled him to a new revocation hearing. The newly discovered evidence related to the substantial battery charge, which had been filed against him as a result of the physical encounter with Marshall. Booker had been convicted of substantial battery as a result of Marshall's injuries; however, in postconviction proceedings, the conviction was vacated as a result of newly discovered evidence. The evidence consisted of the medical opinion from orthopedic surgeon Dr. Sean Keane, who stated in a March 5, 1998 letter:

In summary, Mr. Myles Marshall testified that his fracture at the left wrist was caused by a karate chop administered by Mr. Raymond Booker. He also testified that his fracture at the right fifth knuckle was caused by a blow from Mr. Booker's elbow.
Mr. Marshall's left wrist fracture has been described by the examining radiologist, Dr. C. Locher. He describes a comminuted Colles-type fracture at the left wrist. This fracture, in my opinion, could not have been caused by a karate chop. It would most likely have been caused by a fall on the outstretched left hand.
Mr. Marshall's fracture in the right hand, by the description in the evidence, appears to have been a fracture of the neck of the right fifth metacarpal. This, in my opinion, could not possibly be caused by a blow from an assailant's elbow. Almost invariably, such a fracture is caused by the patient hitting an opponent, or a firm object such as a wall, with the clenched fi[s]t. Indeed, this fracture is usually referred to as a "boxer's fracture".
It is my opinion, to a reasonable degree of medical certainty, that Mr. Marshall sustained these fractures after he had left the scene of the confrontation with Mr. Booker. It is further my opinion that neither of these fractures could have been sustained by his diving through a car window and landing on the front seat of a car, nor would the patient have been able to land on the front seat of a car, bracing himself with a fractured wrist of this type.
Additionally, I have reviewed the initial x-rays of Mr. Marshall's left wrist and confirm that the fracture is as described by Dr. Locher and could not have been caused by a karate chop.

¶ 6. The second piece of newly discovered evidence was Marshall's testimony, at the criminal battery trial in January 1997, that when he asked Adams to "hand me that thing," Marshall was referring to a pistol. During the revocation proceedings in October 1996, Marshall denied referring to a gun, but rather, indicated he was describing a bar for locking the steering wheel.

¶ 7. Thus, based on these two items of newly discovered evidence, Booker requested a new revocation hearing or, alternately, an evidentiary hearing. Booker did not provide any reason for the four-year delay between discovering the new evidence and filing of his motion. The Division denied the motion, citing three reasons:

(1) There is no provision in the Wisconsin Administrative Code or other legal authority for reopening revocation hearings.
(2) The administrator was "not convinced" that the proffered evidence would likely result in a "different outcome" insofar as Booker's self-defense claim was "fully considered" at the revocation hearing and Booker started the confrontation by punching Marshall in the abdomen.
(3) The proffered medical evidence is not "newly discovered" since Booker "could have raised this issue years ago."

¶ 8. Booker appealed the Division's order by way of certiorari review to the circuit court. In his appeal, Booker offered an explanation for the time delay — that his criminal attorney (who defended the battery charge) failed to file the motion challenging the revocation proceedings and that his subsequent attorney was delayed because of constraints related to transferring records from the criminal attorney to the legal assistance program that was handling his case. The circuit court denied Booker's petition in a written decision, ruling that the motion was not timely filed. The circuit court found that Booker was negligent in failing to discover the medical evidence earlier or in failing to bring the motion earlier. Booker now appeals from that order.

II. DISCUSSION

¶ 9. Booker asks this court to reverse the Division's May 17, 2002 decision refusing to conduct an evidentiary hearing to consider whether newly discovered evidence entitled him to a new revocation hearing.

¶ 10. We review the decision of the agency, not that of the circuit court. State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997), aff'd, 219 Wis. 2d 615, 579 N.W.2d 698 (1998). Our review is limited to determining whether: (1) the Division stayed within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) the evidence was such that it might reasonably make the decision that it did. State ex rel. Tate v. Schwarz, 2002 WI 127, ¶ 15, 257 Wis. 2d 40, 654 N.W.2d 438.

¶ 11. The issue of whether a probationer has a right to re-open a revocation hearing based on newly discovered evidence is one of first impression. It is undisputed that there are no administrative code provisions providing for such a right. Booker, however, argues by analogy to criminal proceedings, based on State v. Bembenek, 140 Wis. 2d 248, 409 N.W.2d 432 (Ct. App. 1987), that due process requires that such a process be permitted.

¶ 12. In Bembenek, this court held that due process may require granting a new trial on the basis of newly discovered evidence even after the statutory time period for bringing post-verdict motions has passed. Id. at 252. Our ruling, however, was based on Wis. Stat. § 974.06, which provides a criminal defendant the statutory vehicle to proceed with such a claim. Booker acknowledges that there is no code provision equivalent to § 974.06 upon which to base his newly discovered evidence claim in the revocation arena. He argues, nonetheless, that the constitutional right to due process survives independent of any other legal authority. Schwarz, as representative of the Division, points out significant differences between a criminal defendant's rights in this regard and a probationer's rights at a revocation hearing, which is a civil matter governed by administrative rules. Further, he argues that even if we assume that the Bembenek due-process considerations for granting a new trial based on newly discovered evidence also apply to the decision whether to grant a new probation-revocation hearing, Booker failed to satisfy the five-prong test set forth in Bembenek. The five-prong test provides the requirements a defendant must satisfy in order to be granted a new trial on the basis of newly discovered evidence:

(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.

Bembenek, 140 Wis. 2d at 252. Schwarz argues that while Booker's evidence satisfies the first and fourth criteria, it fails to satisfy the second, third and fifth. Booker replies that there is sufficient evidence in the record to establish that he can satisfy each of the Bembenek factors.

¶ 13. "[T]he law generally prefers that controversies once decided on their merits remain in repose." State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 393, 260 N.W.2d 727 (1978). Nevertheless, our system of justice would have little meaning if it failed to provide a procedure for individuals who have substantial credible evidence to prove their innocence. Due process is the quintessential foundation upon which fairness and justice rest, not only at the time of trial, but at all stages of proceedings. Bembenek, together with Wis. Stat. § 974.06, provide that avenue in the criminal area, as long as certain requirements are satisfied. We have not been presented with any legitimate reason as to why a similar procedure to ensure due process of law should not also apply to an individual in Booker's situation, considering the personal liberty interest at stake. In fact, Schwarz concedes that "[t]he concepts of due process and fair play apply to parole revocation hearings." State ex rel. Leroy v. DHSS, 110 Wis. 2d 291, 295, 329 N.W.2d 229 (Ct. App. 1982).

¶ 14. Therefore, we hold that the determination of whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases. In so holding, we set forth the following standards and requirements to govern these types of cases.

¶ 15. If a movant wishes to have an evidentiary hearing on a newly discovered evidence claim, he or she may not rely on conclusory allegations. If the claim is conclusory in nature, or if the record conclusively shows that the movant is not entitled to relief, the Division may deny the motion without an evidentiary hearing. See State v. Bentley, 201 Wis. 2d 303, 309-11, 313-18, 548 N.W.2d 50 (1996). To obtain an evidentiary hearing on the newly discovered evidence claim, the movant must allege with specificity the Bembenek factors in the post-revocation motion. See Bentley, 201 Wis. 2d at 313-18. Whether the motion sufficiently alleges facts which, if true, would entitle the movant to relief is a question of law to be reviewed independently by this court. See id. at 310. If the Division refuses to hold a hearing based on its findings that the record as a whole conclusively demonstrates that the movant is not entitled to relief, this court's review is limited to whether the Division erroneously exercised its discretion in making this determination. Id. at 318.

¶ 16. Applying this test to the facts at hand, we conclude that Booker's post-revocation motion satisfied the requisite factors. First, Schwarz concedes that the first and fourth factors of the Bembenek test were satisfied — that is, the evidence presented is new and it is not cumulative. Accordingly, our analysis focuses on the second, third, and fifth factors.

¶ 17. The second factor requires that the moving party must not have been negligent in seeking to discover the new evidence. Booker contends that he was not negligent in discovering the evidence because "proof of Marshall's lies was not in existence at the time of the revocation hearing." In support of his allegation, Booker sets forth in detail Marshall's testimony at the revocation hearing as opposed to the testimony he offered during the criminal battery trial. Booker also presents the report of Dr. Keane, which directly contradicts Marshall's revocation hearing testimony. There was some dispute as to whether Booker was negligent in discovering this information because Marshall's injury existed at the time of the revocation hearing. It was unclear, however, from the record as to whether Marshall's medical records were available for review. Regardless, this dispute does not defeat Booker's entitlement to an evidentiary hearing. Rather, this is the type of information that will be fleshed out and resolved during the evidentiary hearing.

¶ 18. The third factor requires that the evidence must be material to the issue. Booker contends that the newly discovered evidence is material because his revocation was based entirely on Marshall's credibility. He alleges in his post-revocation motion that "[t]his new evidence demonstrates that Marshall's testimony was not true, that Booker did not break Marshall's hand, and that Booker did indeed have good reason to believe Marshall was going for a gun." Booker states that the ALJ found "the testimony of Marshall credible and reliable, and found incredible the self-defense claim asserted by Booker." Therefore, he argues that the newly discovered evidence is material. Schwarz contends that the new evidence is not material because Marshall's wrist fracture was not the heart of the revocation case. Instead, Schwarz maintains, the revocation was based on the sole fact that Booker struck Marshall and therefore violated one of his probation conditions. Again, this is a matter that will be resolved during the evidentiary hearing. The respondent will present facts relative to this issue and Booker will present his. See State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 586, 326 N.W.2d 768 (1982) ("A claim of self-defense is available to all persons in society whether on probation or not.").

¶ 19. The fifth factor requires that it must be reasonably probable that a different result would be reached at a new trial. In support of this factor, Booker alleges that if the ALJ had the newly discovered evidence presented during the revocation hearing, he would not have found Marshall to be credible and would have found Dr. Keane's opinion as substantial corroboration for his (Booker's) claim of self-defense. As a result, Booker argues that with this new evidence, there is a reasonable probability that the ALJ would reach a different conclusion.

¶ 20. Among other things, Booker attached to his post-revocation motion a variety of exhibits, including Dr. Keane's report, excerpts of Marshall's testimony, documents showing the proceeding in the criminal battery trial, including the decision vacating the conviction based on the newly discovered evidence, and the ALJ's decision. Booker's motion, together with the attached exhibits, satisfies the Bentley standards by setting forth, with specificity, facts which, if true, would entitle him to relief. Therefore, we conclude that the Division erred by refusing to grant him an evidentiary hearing. Accordingly, we reverse the order and remand the matter to the Division with directions to conduct an evidentiary hearing on Booker's claim of newly discovered evidence.

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

       Rule #1 of Booker's probation states: "You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation."

       This case also presented an issue as to whether Booker's post-revocation motion was timely or untimely and therefore barred hy the doctrine of laches. We agree with Booker's interpretation that the Bembenek factor addresses solely the amount of time the movant took to discover the evidence. State v. Bembenek, 140 Wis. 2d 248, 252, 409 N.W.2d 432 (Ct. App. 1987). This time period may be considered in determining whether Booker was negligent in seeking to discover the evidence and consequently will factor into the Division's decision as to whether the Bembenek factors are satisfied.
      The Bembenek case, however, does not address the time it took the movant to seek redress after discovering the evidence; i.e., the time between the discovery of the new evidence and the filing of the motion. This time period is relevant to the issue of laches — an equitable doctrine that may bar an action if three requirements are met: (1) Booker unreasonably delayed in filing the motion; (2) Schwarz lacked knowledge that Booker would assert the right; and (3) Schwarz is prejudiced by the delay. Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999). The party asserting that laches applies must prove all three elements. If any of the elements is not proven, the doctrine of laches will not bar the action.
      Here, the pertinent time period involves: the date on which the new evidence was discovered, March 5,1998; the date of Dr. Keane's opinion letter, also March 5, 1998, and the date the post-revocation motion was filed, April 23, 2002.

        Booker offers what may be a reasonable explanation for the delay:
      Booker stated that he sought legal help from the University of Wisconsin's LAIP project on July 3,1998 — several months after he obtained Dr. Keane's letter. LAIP then contacted Booker's attorney who was representing him in postconviction proceedings on his criminal conviction, Cord Klein. Booker claimed that Attorney Klein had told him that he planned on filing a Writ of Habeas Corpus with regard to Booker's revocation, but Klein never did take such action. Booker alleged that he then recontacted LAIIj which experienced great difficulties in getting the relevant records from Attorney Klein. These were finally procured in April, 2001, after which time law students worked on the motion that was finally submitted on April 23, 2002.
      Whether the doctrine of laches defeats Booker's motion may also be considered at the evidentiary hearing.