author: CURLEY, J.

text:
    David Pliss and Lorene Phelps, Plaintiffs-Respondents, v. Peppertree Resort Villas, Inc. and Peppertree Resorts, Ltd., Defendants-Appellants, Patti Stevens, Defendant, James Wiley, Defendant-Appellant.
    Court of Appeals

      No. 02-1808.

      Submitted on briefs March 4, 2003.

    Decided April 22, 2003.

    2003 WI App 102
    (Also reported in 663 N.W.2d 851.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs oí Ian A. J. Pitz, oí Michael Best & Friedrich LLP, of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of De Vonna Joy of Consumer Justice Law Center, of Big Bend, Mary Catherine Fons of Fons Law Office, of Stoughton, and Judy Tomczak of Tomczak Law Office, LLC, of Madison.
    An amicus curiae brief in support of the plaintiffs-respondents was filed by Stephen E. Meili and Marsha Mansfield of Madison, for Center for Publication Representation, Inc., Consumer Law Litigation Clinic.
    An amicus curiae brief was filed by James E. Doyle, attorney general, and David J. Gilíes, assistant attorney general, of Madison, for the Department of Justice.
    An amicus curiae brief was filed by Jeffery R. Myer, for Legal Action of Wisconsin, Inc.

      Before Wedemeyer, EJ., Schudson and Curley, JJ.
   CURLEY, J.

¶ 1. Peppertree Resort Villas, Inc., Peppertree Resorts, Ltd., and James Wiley, a Pepper-tree employee (collectively, Peppertree), appeal from the trial court's judgment granting default judgment to David Pliss and Lorene Phelps and awarding them double damages pursuant to Wis. Admin. Code ch. ATCP 121 (1968) and Wis. Stat. § 100.20(5) (2001-02), in this suit stemming from Pliss and Phelps' purchase of a time share. Peppertree contends: (1) because the complaint did not contain sufficient allegations to establish a violation of ch. ATCP 121 prohibiting a referral selling plan, the trial court improperly awarded double damages; and (2) because the trial court granted a rescission of the timeshare contract, no "sale" resulted as required for a cause of action under ch. ATCP 121. We affirm.

I. Background.

¶ 2. Peppertree Resort Villas, Inc. sells time-share estates in condominiums in Sauk County near the Wisconsin Dells, and Peppertree Resorts, Ltd. manages and operates the resort properties. In the spring of 1995, Pliss and Phelps received a telephone solicitation from Peppertree inviting them to visit its resort. Pep-pertree told them that they would receive a free weekend at the resort if they would attend a ninety-minute sales presentation. They agreed and visited Peppertree on May 20, 1995.

¶ 3. During their visit, Pliss and Phelps attended the sales presentation as agreed. During this presentation, the Peppertree sales representative, Patti Stevens, used a referral selling plan in an attempt to induce Pliss and Phelps to buy a time-share interest in Peppertree. Stevens informed them that they could receive either a $50 check, a reduction of their maintenance fees, or a bonus week, for each person referred to Peppertree. However, in order to obtain the benefit, the referred individual was required to attend the same presentation Pliss and Phelps attended at the resort.

¶ 4. As a result of the presentation and incentives, Pliss and Phelps purchased a time-share for $6,823.84. The two claimed that James Wiley, another Peppertree employee, rushed them through the document signing process without reviewing or explaining the documents.

¶ 5. On May 17, 2001, Pliss and Phelps sued Peppertree, Stevens and Wiley, alleging one count of intentional misrepresentation, seven counts of violations of the time-share ownership statute, Wis. Stat. ch. 707, and one count of violating Wis. Admin. Code ch. ATCP 121, which prohibits certain referral selling plans. Pliss and Phelps sought various remedies, including double damages pursuant to Wis. Stat. § 100.20(5).

¶ 6. Peppertree was properly served with copies of the summons and complaint, but failed to answer within forty-five days. After concluding that the delay was not the result of excusable neglect, the trial court granted Pliss and Phelps' default judgment with respect to all counts, and the trial court held a hearing on damages on March 28, 2002. Despite Peppertree's objection to the award of double damages, the trial court entered judgment for double damages, costs and attorney's fees of $28,311.13 against Peppertree, and $21,487.29 against Wiley.

II. Analysis.

¶ 7. The trial court's entry of a default judgment is not in dispute. Peppertree was required to file an answer within forty-five days of service of the complaint. See Wis. Stat. § 802.06(1). Because it failed to meet that deadline, the trial court properly granted a default judgment. See Wis. Stat. § 806.02. Peppertree does, however, challenge that part of the trial court's default judgment on the plaintiffs' Wis. Admin. Code ch. ATCP 121 claim awarding double damages pursuant to Wis. Stat. § 100.20(5).

¶ 8. We review any part of a trial court's decision regarding default judgment subject to the erroneous exercise of discretion standard. See Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11, 386 N.W.2d 53 (1986). We will affirm the trial court's ruling if it considered the pertinent facts, applied the correct law, and reached a reasonable conclusion. See id. at 11-12.

¶ 9. In unfair trade practices or unfair competition actions, the plaintiff has the burden of establishing a statutory violation to a reasonable certainty by clear, satisfactory and convincing evidence. See State v. Fonk's Mobile Home Park and Sales, Inc., 133 Wis. 2d 287, 301, 395 N.W.2d 786 (Ct. App. 1986). In such cases, we first turn to the administrative regulation for guidance. See Jackson v. DeWitt, 224 Wis. 2d 877, 887, 592 N.W.2d 262 (Ct. App. 1999).

The interpretation of a regulation is a question of law that we review de novo. We are to give effect to the intent of the regulation. In determining the intent, we look first to the plain meaning of the regulation. If it clearly and unambiguously sets forth the intent, it is our duty to merely apply that intent to the facts and circumstances of the question presented.

Id. (citations omitted).

¶ 10. Therefore, with respect to Pliss and Phelps' claims, we must first examine Wis. Admin. Code ch. ATCP 121 in conjunction with Wis. Stat. § 100.20(5). Then we must compare this language to the complaint:

Chapter ATCP 121
REFERRAL SELLING PLANS
.... A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys' fees.
ATCP 121.01 Definitions. (1) "Compensation" means anything of value, including commissions, fees, money, credits, discounts, rebates, premiums, goods, or any other kind of property and services.
(2) "Consumer sale" means a sale or lease of goods, services, or an interest in land primarily for personal, family, or household use.
(3) "Referral selling plan" means any method of sale where the seller or lessor, as an inducement for a consumer sale, offers compensation to a prospective buyer or lessee either for a) names of other prospective buyers or lessees, or b) otherwise aiding the seller or lessor in making consumer sales.
(4) "Seller" or "lessor" means individuals, corporations, partnerships, or any other organization ....
ATCP 121.02 Prohibition. No seller or lessor shall use any referral selling plan unless the compensation is given or paid prior to the sale.

(Emphasis and footnote added.)

¶ 11. Wisconsin Stat. § 100.20 states:
100.20 Methods of competition and trade practices.
(5) Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

(Emphasis added.)

¶ 12. Therefore, in the instant case, in order to recover double damages under Wis. Admin. Code ch. ATCP 121 and Wis. Stat. § 100.20(5), Pliss and Phelps were required to allege: (1) that Peppertree used a method of sale wherein, as an inducement for Pliss and Phelps to purchase a time share, it offered compensation for either names of other prospective buyers or for other aid in making subsequent consumer sales, see §ATCP 121.01(3); (2) that Pliss and Phelps did not receive the promised compensation before the sale was completed, see § ATCP 121.02; and (3) that Pliss and Phelps suffered a pecuniary loss because of the referral selling plan, see Wis. Stat. § 100.20(5).

¶ 13. If a default judgment is entered, a trial court may not grant relief beyond that demanded in the complaint. Klaus v. Vander Heyden, 106 Wis. 2d 353, 359, 316 N.W.2d 664 (1982). In Davis v. City of Elkhorn, 132 Wis. 2d 394, 393 N.W.2d 95 (Ct. App. 1986), we stated:

Just because a party fails to answer within a prescribed time does not automatically entitle the complainant to judgment absent excusable neglect. The complainant must make two preliminary showings. First, the moving party must show that the complaint was served and filed in the manner and within the time prescribed by statute. See generally sec. 806.02, Stats. Second, the complaint must contain allegations sufficient in law to state a claim for relief against a defendant.

Id. at 398-99 (emphasis added).

¶ 14. Based on our holding in Davis, Peppertree contends that the complaint did not allege sufficient facts to establish a claim for double damages under Wis. Admin. Code ch. ATCP 121. We disagree and conclude that the trial court properly exercised its discretion, because the complaint supported a prima facie claim of a violation of Wis. Admin. Code ch. ATCP 121.

¶ 15. The complaint states, in relevant part:

FACTS
19. Defendant Stevens utilized a referral scheme as an incentive to induce Plaintiffs to purchase the timeshare interest before Pliss and Phelps agreed to enter into a purchase. Defendant Stevens solicited from Plaintiffs the names of friends or relatives by promising to pay Plaintiffs the sum of fifty dollars ($50.00) for each referral that subsequently attended a Peppertree presentation. Defendant Stevens explained the "Passkey Program" where Plaintiffs could receive $50 by check or reduction of the maintenance fee or a bonus week through referrals.
21. Plaintiffs, in reliance upon the representations made by Peppertree and by their agents or employees, and based upon the incentives offered only if they purchased a time-share on the day of the sales presentation, coupled with high pressure sales tactics utilized by Defendants' agents or employees, agreed to purchase a time-share interest in Peppertree.
SIXTH CAUSE OF ACTION
VIOLATION OF WISCONSIN ADMIN. CODE CH. ATCP 121
REFERRAL TRANSACTION PROHIBITED
58. The allegations set forth in all the paragraphs above are incorporated by reference herein as if set forth in their entirety.
59. The referral-selling program described above violates Wis. Admin. Code Ch. ATCP 121.
60. As a result of Defendants' violation of Ch. ATCP 121, Plaintiffs are entitled to recover double their pecuniary loss as well as costs and reasonable attorney fees pursuant to Wis. Stats. § 100.20(5).

¶ 16. First, Peppertree argues that because: (a) Pliss and Phelps did not allege that they provided Peppertree with the names of any friends or relatives; and (b) Pliss and Phelps did not allege that they were due any compensation under the referral selling plan, either at the time of the sale or subsequently, they failed to satisfy Wis. Admin. Code ch. ATCP 121.

¶ 17. However, Wis. Admin. Code ch. ATCP 121 is silent as to whether, in order to establish a violation of § ATCP 121.02, consumers must allege that they actually provided names of referrals or that the consumers were actually due any consideration. We conclude that this silence renders the regulation ambiguous. Cf. Baierl v. McTaggert, 2001 WI 107, ¶ 24, 245 Wis. 2d 632, 629 N.W.2d 277. Accordingly, we turn to the subject matter, history, and object of the regulation to further ascertain its intent. See id.

¶ 18. As previously noted, Wis. Admin. Code § ATCP 121.02 was amended in September 2001. Although the amended language is inapplicable to the current dispute, during the amendment process, the Department of Agriculture, Trade and Consumer Protection issued an order clarifying the purpose of § ATCP 121.02:

A referral selling plan operates like a pyramid scheme or lottery. Each buyer purchases in reliance upon promised future payments that may result if the buyer refers other sales prospects who purchase in turn. But the payments may never occur, and the "chain" of prospects inevitably breaks. In 1968, the department prohibited referral selling plans unless the seller compensates the buyer before making any sale to that buyer (thus eliminating the element of "Chance"). This rule clarifies but does not change the current prohibition.

Wisconsin Admin. Reg. No. 543, at 17 (emphasis in original.)

¶ 19. Thus, for a referral selling plan to withstand Wis. Admin. Code §§ ATCP 121.01 and 121.02, any contingences on the benefit conferred must be eliminated - thus, eliminating any element of chance. Conversely, a prima facie violation of §§ ATCP 121.01 and 121.02 is established where a seller or lessor offers the benefits of a referral selling plan as an inducement to complete a sale where the benefits of the referral selling plan, by its very nature, may not be conferred prior to completion of the sale. Therefore, Pliss and Phelps were not required to establish that they provided names or were due any compensation at the time of the consumer sale. Rather, because they alleged that Peppertree induced the sale through the use of a referral selling plan that promised future benefits that may or may not have come to fruition, they satisfied §§ATCP 121.01 and 121.02.

¶ 20. Second, Peppertree claims that Pliss and Phelps did not allege that they suffered any pecuniary loss as required by Wis. Stat. § 100.20(5). Specifically, Peppertree alleges that because "the purpose of the prohibition is to protect referring buyers from losing out on referral payments .. . [t]he 'monetary loss' that would trigger the private cause of action, therefore, is the difference between the referral compensation earned and the referral compensation paid." Thus, Peppertree concludes that because Pliss and Phelps failed to allege that they earned any referral compensation, their claim for double damages is not cognizable under § 100.20(5).

¶ 21. Peppertree's argument on this point is a red herring. The purpose of the prohibition against referral selling plans in Wis. Admin. Code ch. ATCP 121 is not "to protect referring buyers from losing out on referral payments." Rather, the prohibition is designed to protect buyers from being induced into a consumer sale by a referral selling plan by promising future payments that may never occur. Therefore, the pecuniary loss is not any lost referral compensation, but rather, the money paid for the product that the consumer was improperly induced into buying due, in part or in whole, to the referral selling plan. Accordingly, since the un-contradicted complaint alleged that they were induced into buying a time share because of the referral selling plan, the trial court properly ruled that Pliss and Phelps suffered a loss in the amount they actually paid for the time-share.

¶ 22. Third, and finally, Peppertree contends that the trial court's rescission of the time-share contract pursuant to Wis. Stat. § 707.57 defeated Pliss and Phelps' other claims because the rescission negated any "sale," which is required for a claim under Wis. Admin. Code ch. ATCP 121. We disagree. Peppertree's argument flies in the face of the explicit language of § 707.57, which states in relevant part:

707.57 Remedies and penalties. (1) PRivate Remedies. (a) If a developer or any other person subject to this chapter fails to comply with this chapter or the time-share instrument, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief, including but not limited to damages, injunctive or declaratory relief, specific performance and rescission.

(Emphasis added.) Under Wis. Stat. § 707.57, the remedy of rescission is available in addition to other remedies. Thus, the trial court properly awarded appropriate relief including both damages and rescission.

¶ 23. Based on the foregoing reasons, the trial court is affirmed.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Administrative Code are to the 1968 version unless otherwise noted. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Peppertree does not appeal that part of the judgment granting default judgment on the Wis. Stat. ch. 707 claims or the intentional misrepresentation claim.

       Wisconsin Admin. Code § ATCP 121.02 was amended in. September 2001, effective October 1, 2001, to read:
      ATCP 121.02 Prohibition. No seller or lessor may use any referral selling plan to make a consumer sale unless the seller or lessor first gives the buyer or lessee the full amount of potential compensation offered to that buyer or lessee under that plan.

       This does not amount to a complete ban on referral selling plans, as suggested by Peppertree. Referral selling plans may be used if the compensation benefits are conferred prior to completion of the consumer transaction. The referral selling plans prohibited are those that induce a sale through the promise of future benefits, i.e., post-sale benefits.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

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

    Court of Appeals

      No. 02-2352-CR.

      Oral argument March 24, 2003.

    Decided April 22, 2003.

    2003 WI App 105
    (Also reported in 663 N.W.2d 390.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Steven L. Miller of Miller & Miller of River Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Edwin J. Hughes, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Edwin J. Hughes.

    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 7-9-03.

   CANE, C.J.

¶ 1. David Raster appeals a judgment entered on a jury verdict convicting him of two counts of sexual assault of a student by school staff and one count each of fourth-degree sexual assault and disorderly conduct. He also appeals an order denying his motion for postconviction relief. Kaster only challenges one of his convictions for sexual assault of a student, contending he was not "school staff' at the time of the assault. Specifically, he argues the trial court erred when it failed to give his proposed jury instruction interpreting "school staff' and that the evidence was insufficient to convict him based on this interpretation. We disagree and affirm the judgment and order.

Background

¶ 2. Raster was the boys' and girls' swimming coach at Ashwaubenon High School during the 1998-99 school year and had been involved with the swim teams at the school since 1983. He was not a teacher nor did he hold any other position at the school. He held separate contracts for the boys' and girls' teams. Raster and the school district entered into new contracts every year, and the 1998-99 school year contracts were specifically for that term. In that school year, the girls' swimming season ended on November 14,1998, and the boys' ended on February 20, 1999. In February 2001, Raster was charged with several crimes stemming from allegations that he had sexual contact with four members of the girls' team. One of the incidents was alleged to have occurred on March 14, 1999.

¶ 3. Among the charges against Raster were four counts of sexual assault of a student by a school instructional staff person under Wis. Stat. § 948.095. One of these charges was for the March 14 incident. Raster submitted jury instructions for § 948.095. His proposed instructions first defined the "providing services" portion of "school staff' to mean "the jury must find that the defendant was providing services under a contract to be the high school swimming coach." The instructions also read, " 'under contract' means the person has an ongoing legally enforceable obligation to provide services as specified under the terms and conditions of a valid contract." Raster requested the jury be instructed regarding contract ambiguity and construction; specifically, that a contract is ambiguous if it is susceptible to two different meanings and ambiguous contracts must be construed against the drafter. Finally, Raster proposed the jury be instructed that § 948.095 did not apply to volunteers.

¶ 4. Raster argued that his only connection to Ashwaubenon High School was his coaching contracts and that he could be guilty only if he was under contract at the time of the assault. He maintained "school staff' had to be narrowly construed to include only school employees, contract personnel, or a similarly situated paid service provider of ascertainable duration. Because his only relationship with the school was through his contract, Raster contended the jury should have been instructed he needed to be under contract to be found guilty. He alternatively claimed that any services he may have been providing to the school at the time of the assault were voluntary and not covered by Wis. Stat. § 948.095. Raster based this argument on the statute's legislative history, pointing to an earlier draft that had specifically included volunteers, but that had been removed before the law's enactment.

¶ 5. During his trial, Raster elicited testimony from various school officials and staff members to support his defense theory. Gary Wendorf, the school's past athletic director, testified coaching contracts covered the entire year, but also said coaches finish their duties at the end of the athletic season. He said Raster was "probably not" required to perform any services outside the season. Jack Rlabesadel, the current athletic director and director during the 1998-99 school year, testified the only requirement for coaches outside the seasons was to attend an awards banquet and also said Raster was "not under contract according to our district office after the swim season and his evaluation" were complete. Rlabesadel added that he would have no financial control over a coach after the season ended. During the 1998-99 school year, however, Rlabesadel said he contacted Raster after the end of the season regarding the swim teams' budgets and scheduling, as well as Raster's evaluations and to plan fundraising. In addition, Rlabesadel said Raster conducted "open swims" at the school's pool. Both Wendorf and Rlabe-sadel testified coaches might engage in some out-of-season activities such as fundraising or planning, but that such activities would be voluntary.

¶ 6. At the instruction conference, the court refused Raster's instructions and opted to give the standard instruction, Wis JI — Criminal 2139. The court reasoned that the purpose of Wis. Stat. § 948.095 was to protect students from people who provide services to students on a regular basis and also determined this should apply to persons such as coaches, whether or not they were volunteers. Noting the statute's breadth, the court reasoned it was not intended to cover "someone who delivers soda to the school... or reseals the gym floor." However, the court added that Raster's narrow interpretation would exclude a volunteer coach, a person § 948.095 was plainly intended to cover. In addition, the court determined § 948.095 applied regardless of the existence of a contract and added, "the state can argue to the jury that services provided makes Mr. Raster subject to the application of the statute irrespective of whether a contract exists." Subsequently, Raster also requested the "volunteer" portion of his instruction, which the court again denied.

¶ 7. The jury convicted Raster of two counts of sexual assault of a student, including the March 14 incident, one count of fourth-degree sexual assault and one count of disorderly conduct. He now appeals the sexual assault of a student conviction stemming from the March 14 incident.

Discussion

¶ 8. Kaster argues that the trial court denied him a defense because it failed to give his proposed jury-instruction. Whether a jury instruction is appropriate given the facts of a case is a legal issue subject to independent review. See State v. Pettit, 171 Wis. 2d 627, 637-38, 492 N.W.2d 633 (Ct. App. 1992). Raster's proposed instruction is based on an interpretation of Wis. Stat. § 948.095. The interpretation of a statute is also a question of law we review independently. Agnes T. v. Milwaukee County, 189 Wis. 2d 520, 525, 525 N.W.2d 268 (1995). We first look to the statutory language and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). If the legislative intent can be determined from the clear and unambiguous language of the statute itself, the statute's terms will be applied in accordance with the statute's plain language. In re J.A.L., 162 Wis. 2d 940, 962, 471 N.W.2d 493 (1991).

¶ 9. Only if there is ambiguity do we resort to rules of construction and extrinsic materials, such as legislative history, in an effort to determine legislative intent. See id. A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248. "When construing statutes we are to give them their common-sense meaning to avoid unreasonable and absurd results." Janssen v. State Farm Mut. Auto. Ins. Co., 2002 WI App 72, ¶ 16, 251 Wis. 2d 660, 643 N.W.2d 857. Further, we must give meaning to each word of a statute. Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981).

¶ 10. Raster argues his proposed instruction that the jury must find him to be "providing services under a contract" was appropriate because the definition of "school staff' in Wis. Stat. § 948.095 must be limited to "school employees, contract personnel, or similarly situated paid service providers of ascertainable duration." In making this argument, he relies on a rule of construction, ejusdem generis, which limits the meaning of general words to specific words associated with the general words. See Quesenberry v. Milwaukee County, 106 Wis. 2d 685, 693, 317 N.W.2d 468 (1982). Raster contends the phrase "any person who provides services" is limited by the more specific "employe" and "under contract," both of which suggest a "paid position of ascertainable duration."

¶ 11. Raster argues Wis. Stat. § 948.095 is ambiguous because an interpretation of "school staff' that would apply to "literally anyone who provides services to a school" would create an absurd result and be unconstitutional for failing to give notice to persons subject to the statute. He maintains that such a broad interpretation renders "employe" and "under contract" superfluous and that the legislature could not have intended to include such a large group of people within the statute. Raster also argues § 948.095 must be construed to exclude volunteer services because an earlier draft expressly included volunteers. He contends the legislature's removal of the phrase shows its intent not to include persons providing volunteer services to a school.

¶ 12. We are not persuaded. We agree the phrase "provides services" is very broad, but this does not necessarily make the statute unconstitutional or ambiguous. While statutes must have a reasonable degree of clarity, exacting precision is not required unless the statute affects constitutionally protected interests. Dog Federation v. City of South Milwaukee, 178 Wis. 2d 353, 359-60, 504 N.W.2d 375 (Ct. App. 1993). If a statute or ordinance does not directly affect constitutionally protected interests, we may not hold it facially invalid for vagueness even though doubts as to the applicability of the challenged language in marginal fact situations may be conceived. Id. Wisconsin Stat. § 948.095 does not implicate any constitutionally protected interests. Instead, it prohibits sexual assault of students by persons providing services to the schools the students attend. While its application would perhaps be questionable in certain situations, such as those noted by the trial court, we may not invalidate the statute based on these hypothetical situations. See Dog Federation, 178 Wis. 2d at 359-60.

¶ 13. We also reject Raster's claim that his interpretation is necessary to avoid making "employe" and "under contract" superfluous. He contends that interpreting "providing services" broadly makes "employe" and "under contract" wholly unnecessary because they would be included within "providing services." Raster's interpretation, however, also leaves "employe" and "under contract" superfluous. A "paid position of ascertainable duration" ostensibly includes an "employe" and persons "under contract."

¶ 14. Instead, the appropriate interpretation of Wis. Stat. § 948.095 would be to view an "employe" and persons "under contract" as examples of persons included within the group of people that provide services to a school or school board. This interpretation is supported by the statute's language that "a person who provides services" includes an "employe" and persons "under contract." These phrases are illustrative, and nothing in the statute's language suggests they were meant to limit the definition of "a person who provides services." We agree this group is broad and, while we share Kaster's and the trial court's concerns that interpreting this phrase to include delivery persons or ushers at sporting events might not be precisely what the legislature intended by creating Wis. Stat. § 948.095, this problem is for the legislature, not us, to remedy.

¶ 15. Similarly, we reject Kaster's argument that Wis. Stat. § 948.095 does not apply to volunteers. A volunteer "provides services" to a school or school board. That the two examples in § 948.095 involve persons with paid positions does not change the broad definition of "school staff." While Kaster argues the legislature's removal of volunteers from the statute's final draft shows its intent not to include them, we cannot look to legislative history when interpreting an unambiguous statute. See J.A.L., 162 Wis. 2d at 962. Instead, we must look to the statute's language, as enacted, and we conclude that volunteers are included within the statute's definition of "school staff."

¶ 16. Based on the foregoing, we conclude the trial court did not deny Kaster a defense by giving the standard jury instruction. Kaster maintains the only way he could have been liable under Wis. Stat. § 948.095 was if he was "under contract" on March 14, 1999, and the jury should have been so instructed. We reject Kaster's narrow reading of the statute and conclude he would be liable if he provided services to a school or school board on March 14. The standard jury instruction's definition of "school staff' essentially matches § 948.095's definition and provides no further explanations. If the instructions given adequately cover the law applicable to the facts, we will not find error by the trial court. State v. Lenarchick, 74 Wis. 2d 425, 455, 247 N.W.2d 80 (1976). Wisconsin JI — Criminal 2139 adequately instructs the jury on § 948.095.

¶ 17. Finally, we conclude that the evidence at trial was sufficient to allow the jury to conclude that Raster was providing services to the school or school board when he committed the March 14 assault. Raster's contract with the school district was for the 1998-99 school year. While Raster argues that his coaching duties were done at the end of the boys' season on February 20, Rlabesadel testified he had out-of-season contact with Raster for planning, scheduling, budgeting and evaluation purposes. Rlabesadel also testified that he and the school's swimming pool director coordinated open swims with Raster. These open swims were outside of the swim teams' seasons and were open to all students, not just swim team members. Although Wisconsin Interscholastic Athletic Association rules prevented Raster from coaching at these events, he was allowed to supervise his athletes if they decided to attend. Finally, Rlabesadel testified he contacted Raster during the summer of 1999 regarding fundraising for the upcoming girls' season. This evidence is sufficient to allow the jury to conclude that Raster was providing services to Ashwaubenon's High School or school board on March 14, 1999.

¶ 18. Finally, Raster argues we should exercise our discretionary reversal authority under Wis. Stat. § 752.35 (2001-02) because the real controversy was not fully tried due to the trial court's failure to instruct the jury as he requested. Because we have concluded the trial court did not err, we reject this argument.

By the Court. — Judgment and order affirmed.

       Kaster's contract for the 1998-99 girls' coaching position stated in relevant part: "It is specifically understood and agreed that.. . this appointment is for the 1998-99 school year only."
      Only the contract for 1998-99 was submitted into evidence. It is undisputed the boys' contract contained identical language.

       Wisconsin Stat. § 948.095 provides:
      Sexual assault of a student by a school instructional staff person. (1) In this section:
      (a) "School" means a public or private elementary or secondary school.

        (b) "School staff means any person who provides services to a school or a school board, including an employe of a school or a school board and a person who provides services to a school or a school board under a contract.
      (2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class D felony if all of the following apply:
      (a) The child is enrolled as a student in a school or a school district.
      (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The court gave the following instruction regarding the definition of school staff:
      The fourth element requires that the defendant was a member of the school staff of the school or school district in which that person named in that Count was enrolled as a student.
      "School staff' means any person who provides services to a school or school board, including an employe of a school or school board and a person who provides services to a school or a school board under a contract.


author: NETTESHEIM, P.J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Juan M. Orta, Defendant-Respondent.
    Court of Appeals

      No. 02-1008-CR.

      Oral argument February 19, 2003.

    Decided April 23, 2003.

    2003 WI App 93
    (Also reported in 663 N.W.2d 358.)

      On behalf of the Plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, assistant attorney general, and Kathleen M. Ptacek, assistant attorney general, and oral argument by Kathleen M. Ptacek.

    On behalf of the defendant-respondent, the cause was submitted on the brief and oral argument of Glenn L. Cushing, of Madison.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, P.J.

¶ 1. The State appeals from a trial court order granting Juan M. Orta's motion to suppress evidence of drug possession. The court ruled that Orta had a legitimate expectation of privacy in the public rest room stall where he engaged in a drug transaction with another individual and therefore Orta had standing to challenge the search.

¶ 2. We reverse the trial court's order. We conclude that an individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.

FACTS

¶ 3. At the hearing on Orta's motion to suppress, Officer Terrance Jones of the Racine police department testified to the following facts. On August 11, 2001, Jones was working as a private security guard at a dance at Memorial Hall in the city of Racine. At some point during the evening, Jones entered the men's restroom and observed two individuals in the farthest of four restroom stalls. Jones could see the top of their heads and their feet and determined that the individuals were adults. Although Jones could detect a whispered conversation, he could not hear what the individuals were saying.

¶ 4. Jones approached the stall and, from the positioning of the feet, determined that the individuals were facing each other with their feet perpendicular to the toilet. The door to the stall was cracked open and not locked, although Jones could not see into the stall. Jones knocked on the door and slowly pushed it open. The individuals moved back and Jones asked them what was going on. The man in the stall with Orta immediately took a clear baggie containing white powder that was in his hand and threw it in the toilet. Jones immediately ordered the individuals out of the stall, placed them in handcuffs and requested their permission to search them. After receiving consent, Jones searched Orta and discovered a baggie containing what was later determined to be cocaine.

¶ 5. At the conclusion of the hearing on Orta's motion to suppress, the trial court ruled that Orta had a legitimate expectation of privacy in the restroom stall and therefore had standing to challenge the search. Since Jones did not have probable cause or reasonable suspicion to believe that a crime had been or was being committed when he opened the door of the stall, the trial court suppressed the evidence. The State appeals.

DISCUSSION

1. Scope of the Reviewable Evidence

¶ 6. Before we address the merits of the issue, we set out the scope of the evidence we are permitted to consider on the question. It is self-evident that in a conventional motion to suppress setting where standing is not at issue, a court is not permitted to consider the fruits of the search to justify the intrusion. However, the law is otherwise where standing is at issue. In Minnesota v. Carter, 525 U.S. 83 (1998), the respondents gave cocaine to the owner of an apartment in exchange for the use of the apartment as a site for bagging cocaine. Id. at 85-86. In determining whether the respondents had standing to challenge a search of the apartment, the United States Supreme Court referred to the "commercial nature of the transaction," id. at 91, and further stated:

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with [the apartment resident], or that there was any other purpose to their visit.... While the apartment was a dwelling place for [its resident], it was for these respondents simply a place to do business.

Id. at 90 (footnote omitted).

¶ 7. We followed this same approach in State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555, review denied, 2001 WI 117, 247 Wis. 2d 1033, 635 N.W.2d 782 (Wis. Sept. 19, 2001) (No. 00-1081-CR). In assessing whether the defendants had established a reasonable expectation of privacy, we noted that the defendants had "rented the attic space ... for the principal purpose of conducting their criminal enterprise." Id., ¶ 42 (emphasis added). It is thus evident that a court may look to facts discovered after the intrusion to determine if a defendant has a reasonable expectation of privacy to confer standing to challenge a search.

¶ 8. Orta argues that the consideration of after-discovered facts concerning the defendant's actual use of the facilities would render it impossible for any criminal defendant to have a legitimate expectation of privacy "because every criminal defendant ever caught by police, prosecuted by the state, and litigating a suppression motion was, by definition, not using the stall for its intended purpose." However, our decision in Trecroci squarely refutes this argument. There, although acknowledging the criminal enterprise of the defendants, we nonetheless concluded that they had succeeded in establishing a legitimate expectation of privacy. Id., ¶¶ 42-43.

¶ 9. Therefore, in assessing Orta's standing claim, we are entitled to consider the observations and discoveries made by Jones when he entered the restroom stall.

2. Standard of Review

¶ 10. When reviewing a trial court's ruling on a motion to suppress evidence on Fourth Amendment grounds, we will uphold the trial court's factual findings unless clearly erroneous. State v. Eskridge, 2002 WI App 158, ¶ 9, 256 Wis. 2d 314, 647 N.W.2d 434, review denied, 2002 WI 121, 257 Wis. 2d 120, 653 N.W.2d 891 (Wis. Sept. 26, 2002) (No. 01-2720-CR). Whether a defendant has standing to raise a Fourth Amendment claim also presents a question of law. Id.

3. Standing/Reasonable Expectation of Privacy

¶ 11. When assessing a defendant's standing to challenge a search under the Fourth Amendment, the critical inquiry is "whether the person . . . has a legitimate expectation of privacy in the invaded place." Trecroci, 246 Wis. 2d 261, ¶ 26 (citation omitted). A defendant bears the burden of establishing his or her reasonable expectation of privacy by a preponderance of the evidence. State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991). Whether a person has a reasonable expectation of privacy depends on (1) whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized; and (2) whether society is willing to recognize such an expectation of privacy as reasonable. Trecroci, 246 Wis. 2d 261, ¶ 35.

¶ 12. With respect to the first prong, we must determine whether the defendant's evidence "stack[s] up to proof by a preponderance of the evidence that he had a subjective expectation of privacy." See Eskridge, 256 Wis. 2d 314, ¶ 13. Trecroci provides guidance. There, we concluded that the defendants exhibited a subjective expectation of privacy in the attic area of their apartment dwelling because the defendants so testified they had equipped the doorway leading to the entrance to the stairway with a deadbolt lock, and there was no suggestion that third parties had unfettered access to the stairway. Trecroci, 246 Wis. 2d 261, ¶ 35.

¶ 13. Here, although Orta did not testify, we will assume that he subjectively expected privacy while he and his companion were in the restroom stall. But the law requires more than simple expectation of privacy. In addition, the law requires that such expectation be exhibited in some fashion. Id. The evidence in this case does not demonstrate that Orta exhibited an expectation of privacy. Orta conducted his criminal activity in the restroom stall of a public building. Although a public restroom stall carries notions of privacy, the fact remains that any member of the public might try to enter the stall. In addition, Orta failed to latch or lock the door of the stall and also failed to assure that the door was fully closed. Finally, Orta and his companion positioned themselves in the stall in such a manner that an observer such as Jones would conclude that the stall was not being used as intended — a matter confirmed by Jones' later observations when he entered the stall. Under these circumstances, we conclude that Orta did not demonstrate a subjective expectation of privacy by a preponderance of the evidence. See Eskridge, 256 Wis. 2d 314, ¶ 13.

¶ 14. Although unnecessary, we choose to also address the objective prong of a standing analysis. See Trecroci, 246 Wis. 2d 261, ¶ 36. On this element of the test, we look to the following factors:

1. Whether the person had a property interest in the premises;
2. Whether the person was legitimately on the premises;
3. Whether the person had complete dominion and control and the right to exclude others;
4. Whether the person took precautions customarily taken by those seeking privacy;
5. Whether the person put the property to some private use; and
6. Whether the claim of privacy is consistent with historical notions of privacy.

Id. This list of factors is neither controlling nor exclusive; rather, the totality of the circumstances is the controlling standard. State v. Thompson, 222 Wis. 2d 179, 186-87, 585 N.W.2d 905 (Ct. App. 1998). A determination as to the reasonableness of a person's expectation of privacy depends on the particular facts of a case. Trecroci, 246 Wis. 2d 261, ¶ 33.

¶ 15. As to the first and second prongs, it is undisputed that although Orta was legitimately on the premises, he did not have a property interest in the restroom stall in the public facilities at Memorial Hall. However, Orta's lack of property interest is not disposi-tive. "Capacity to claim the protection of the fourth amendment" does not depend "upon a property right in the invaded place." Whitrock, 161 Wis. 2d at 973 (citation omitted). What a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967). Moreover, while there is no Wisconsin case directly on point, courts in other jurisdictions routinely apply the protections of the Fourth Amendment to the privacy expectations of an occupant of a partially or wholly enclosed stall in a public restroom. See State v. Tanner, 537 N.E.2d 702, 705 (Ohio Ct. App. 1988); People v. Mercado, 446 N.Y.S.2d 980, 983 (N.Y. Sup. Ct. 1982); State v. Biggar, 716 P.2d 493, 495 (Haw. 1986). These two factors favor Orta.

¶ 16. Under the third factor, we consider whether Orta had complete dominion and control of the restroom stall and the right to exclude others. As our previous discussion regarding Orta's subjective expectation of privacy reveals, Orta could have taken the usual and customary steps to assure privacy in the restroom stall by locking or latching the stall door or, at a minimum, assuring that the door was fully closed. However, he did not. Therefore, while Orta arguably had the right to exclude others, he did not take the necessary, common and available steps to achieve complete dominion and control over the stall in order to exercise that privacy right. This factor favors the State.

¶ 17. Next we examine the fourth and sixth prongs: whether Orta took precautions customarily taken by those seeking privacy and whether his claim of privacy is consistent with historical notions of privacy. Orta cites to Biggar, 716 P.2d 493; Brown v. State, 238 A.2d 147 (Md. Ct. Spec. App. 1968); and Ward v. State, 636 So. 2d 68 (Fla. Dist. Ct. App. 1994), for the proposition that despite his failure to latch the door, he still took precautions for privacy and that his claim for privacy is one that society would recognize as reasonable. However, all three cases differ factually from this one. The defendants in these three cases were each the sole occupants of a restroom stall and, therefore, the cases provide little guidance on whether, and under what circumstances, multiple occupancy of a public restroom stall erodes the reasonable expectation of privacy otherwise afforded. The double occupancy of the stall in this case played a large part in determining Jones' actions. We therefore turn to cases concerning multiple occupancy, the majority of which limit the expectation of privacy in a restroom stall occupied by more than one person. See, e.g, State v. Mudloff, 36 P.3d 326 (Kan. Ct. App. 2001); People v. Mercado, 446 N.Y.S.2d 980 (N.Y. Sup. Ct. 1982); State v. Tanner, 537 N.E.2d 702 (Ohio Ct. App. 1988).

¶ 18. The most recent case addressing this issue is Mudloff. There the defendant occupied a stall with another individual and had an audible conversation with that person indicating to a passerby there was activity occurring not in accordance with the stall's intended use. Mudloff, 36 P.3d at 327. The officer knocked on the stall door and then pushed it open to discover the defendant in possession of illegal drugs. Id. The Mudloff court reversed the trial court's determination that the defendant had a reasonable expectation of privacy in the rest room stall. Id. at 328. The court adopted the reasoning of Mercado and Tanner that "an individual can assert a subjective expectation of privacy in a public bathroom stall, but society will not recognize that expectation as reasonable if the stall's occupant is engaged in activity other than the stall's intended use." Mudloff, 36 P.3d at 328.

¶ 19. In Mercado, an officer observed one pair of feet pointed toward the commode with the legs at an angle towards the door. Mercado, 446 N.Y.S.2d at 981. He heard two low, male voices coming from it and upon looking through the space between the door and the doorframe saw the defendant sitting on the flushing unit of the commode with his feet resting on the bowl. Id. at 981. The officer entered the adjoining stall and looked over the partition. Id. When the other occupant of the stall observed the officer, he threw an envelope containing white powder into the toilet. Id. The officer ordered the men out of the stall and placed them under arrest. Id..

¶ 20. The court concluded that

[t]he two defendants herein, who occupied one stall in a public rest room and who were engaged in audible conversation, had no reasonable expectation of privacy there .... A public rest room stall affords only limited and easily penetrated privacy. The right to privacy is breached when the stall is used for a purpose or in a manner contrary to its intended use.

Id. at 984.

¶ 21. Relying in part on Mercado, the Tanner court likewise concluded that

an individual's subjective expectation of privacy is limited when two people are in a stall designed for use by one person. The two people in the stall cannot reasonably expect to be free from intrusion when the outward appearance they give is that they are using the single stall for a purpose other than for what it was intended.

Tanner, 537 N.E.2d at 705. The concurring opinion emphasized the circumstances of the case which underpinned the court's holding: (1) that anyone entering the restroom could view the defendant's and his companion's feet and legs; (2) that the top of the door was as low as six feet from the floor; (3) anyone entering the restroom could hear the sniffing sound emanating from the stall; and (4) "the men did not evince an expectation of privacy since they left the stall door unlocked." Id. at 705 (Whiteside, J., concurring).

¶ 22. Here, Jones entered the restroom and noted two pairs of feet in one restroom stall. The positioning of the feet was inconsistent with any use of the commode. There was no evidence of either person in the stall needing assistance from the other. Jones heard whispered conversation and noted that the stall door was cracked open and not locked. As noted earlier, Orta failed to take precautions customarily performed by those seeking privacy. These factors favor the State.

¶ 23.Finally, we examine the fifth prong: whether Orta put the restroom stall to private use. We conclude he did not. Although the area is typically intended for private use, Orta was not using it for its intended purpose; rather, he was using it to conduct a drug transaction. In such a situation, we have rejected any argument that the defendant put the area to private use. See State v. McCray, 220 Wis. 2d 705, 713, 583 N.W.2d 668 (Ct. App. 1998) (although hiding drugs in the rafters of the basement could be considered a private use of the premises, defendant's use of the premises was not to seek privacy, but rather to access the drug-buying public). This factor also favors the State.

¶ 24. Based on our application of the Trecroci factors, we conclude that society is not willing to recognize Orta's claim for an expectation of privacy under these facts as reasonable.

CONCLUSION

¶ 25. Orta failed to demonstrate a subjective expectation of privacy and also has failed to objectively demonstrate that society is willing to recognize his claim for an expectation of privacy as reasonable. As a result, he did not have standing to challenge Jones' entry into the stall and to seek suppression of the evidence on Fourth Amendment grounds. See United States v. Salvucci, 448 U.S. 83 (1980). We reverse the trial court order suppressing the evidence.

By the Court. — Order reversed and cause remanded.

       Pursuant to Wis. Stat. § 971.31(10) (2001-02), the State is entitled to appeal the trial court's order as a matter of right even though the order is nonfinal. All references to the Wisconsin Statutes are to the 2001-02 version.

       We acknowledge Orta's argument that there is no evidence that the door in fact had a lock. However, it was Orta's burden to demonstrate that it did not. See State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991). Regardless, Jones testified that the door was not fully closed, it was "cracked, it wasn't closed all the way."

       In State v. Biggar, 716 P.2d 493, 494 (Haw. 1986), the defendant indicated to the officer that he was entering the stall to use it for its intended purpose. He then entered the stall and shut the door, which "did not close completely." Id. The officer went into an adjacent stall and looked over the partition into the defendant's stall. Id. The officer observed the defendant withdrawing his hand from the disposable seat cover dispenser and subsequently found cocaine hidden there. Id. In reversing the defendant's conviction, the court stated, "[W]e think it is beyond dispute that an expectation of privacy in a closed toilet stall is one that society would recognize as objectively reasonable." Id. at 495.

        Brown v. State, 238 A.2d 147 (Md. Ct. Spec. App. 1968), also involved a single individual in a stall. There, the court concluded:
      [A] person who enters an enclosed stall in a public toilet, with the door closed behind him, is entitled, at least, to the modicum of privacy its design affords, certainly to the extent that he will not he joined by an uninvited guest or spied upon by probing eyes in a head physically intruding into the area. No less than a person in a business office, in a friend's apartment, or in a taxicab, a person in an enclosed stall in a public toilet may rely upon the protection of the Fourth Amendment. The nature of the place, the type of criminal activities that can and do occur in it, the ready availability therein of a receptacle for disposing of incriminating evidence and the right of the public to expect that police will put a stop to its use as a resort to crime are not sufficient to permit the search under the circumstances here present.
      Id. at 149-50 (citations omitted).
      Finally, in Ward v. State, 636 So. 2d 68 (Fla. Dist. Ct. App. 1994), an officer observed the defendant in a restroom stall through a hole in the wall between the stalls and through a crack between the door of the stall and its frame. Id. at 69, 70 n.5. Although there was no latch on the rest room door, the circuit court found that the "design of the toilet stalls was sufficient to provide the occupant, after closing the doors, with a degree of privacy" and that the "privacy was invaded by [the officer] looking through the crack in the door in a 'peeping Tom fashion.'" Id. at 70.

        See also Wylie v. State, 296 S.E.2d 743, 743-44 (Ga. Ct. App. 1982) (the defendant did not have a reasonable expectation of privacy when he occupied a single commode stall with another individual with their feet facing each other; when two individuals enter the stall, neither of whom appears to be an invalid or handicapped as to require assistance, the immediate surveillance of the stall, without the delay incident to a warrant, appears to pass constitutional muster); Barron v. State, 823 P.2d 17, 20 (Alaska Ct. App. 1992) ("[T]he cases suggest that when one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one's behavior is subject to the observation of others who are in the public area. When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate.").

       We reject Orta's reliance on Buchanan v. State, 471 S.W.2d 401, 404 (Tex. Crim. App. 1971), in which the court held that two individuals in a public restroom stall had a reasonable expectation of privacy. In that case, the defendant was subject to clandestine surveillance conducted by police officers from concealed positions above the men's restroom in a department store. Id. The court held that "[t]he men's restroom at the Sears store had commode stalls with doors which locked from the inside. A person inside such a stall with the door locked could be said to have some reasonable expectation of privacy." Id. (emphasis added).


author: SNYDER, J.

text:
    Ruzdi Useni, Plaintiff-Appellant-Cross-Respondent, v. Steve Boudron and Fairview Family Restaurant, Inc., Defendants-Respondents-Cross-Appellants, Hobart Corporation, Defendant.
    Court of Appeals

      No. 02-1475.

      Submitted on briefs March 26, 2003.

    Decided April 23, 2003.

    2003 WI App 98
    (Also reported in 662 N.W.2d 672.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Alexander S. Kammer of Atterbury & Riley, S.C., Madison.
    On behalf of the defendant-respondent-cross-appellant Steve Boudron, the cause was submitted on the briefs of Thomas J. Basting, Sr and Margery Mebane Tibbetts of Brennan, Steil, Basting & MacDou-gall, S.C., Janesville.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Ruzdi Useni appeals from an order of the circuit court vacating a default judgment against Steve Boudron, finding excusable neglect for Boudron's failure to file an answer within the proper time. Useni argues that the circuit court's decision to vacate the default judgment against Boudron was in error and in contravention of well-accepted principles governing excusable neglect. In addition, Useni argues that Boudron waived his defense of lack of personal jurisdiction. Boudron cross-appeals, arguing that the service of process upon him was insufficient and the circuit court lacked personal jurisdiction over him. We agree with Boudron that service was improper and the circuit court lacked personal jurisdiction over him. We therefore dismiss the appeal and grant the cross-appeal. Consequently, Useni's personal cause of action against Boudron is dismissed.

FACTS

¶ 2. On July 26, 1999, Useni commenced this personal injury action to recover damages for injuries he allegedly sustained while operating a band saw manufactured by Hobart Corporation and which had been sold to him by Fairview Family Restaurant, Inc. (Fairview). Useni originally commenced this action against Boudron, individually, and Hobart, claiming that Boudron had sold the band saw to him and that it was unreasonably dangerous at the time of the sale. Personal service was obtained over Boudron on August 9, 1999.

¶ 3. On August 30, 1999, Useni filed an amended summons and complaint naming only Fairview and Hobart as defendants; Boudron was not named as a defendant. Service was obtained over Fairview on September 9, 1999. A second amended summons and complaint was filed on January 26, 2000, naming Boudron, Fairview and Hobart all as defendants. The affidavit of the process server indicates that he served the business of "Fairview Family Restaurant, Inc." by serving "Steven M. Boudron owner/agent" at the business. The manner of service indicates that it was corporate service and only one copy of the authenticated summons and complaint was served.

¶ 4. On July 6, 2000, Useni filed a motion for default judgment against Boudron and Fairview, alleging neither defendant had filed any responsive pleading within the required time. On July 14, 2000, the circuit court entered default judgment against Boudron and Fairview. On November 28, 2000, Useni filed a motion for a hearing on damages. On January 12, 2001, Boudron filed a pro se motion to vacate the default judgment; the motion did not address the propriety of service of process. That same day, a hearing was held on the issue of damages and the circuit court awarded Useni $2,131,718 in damages against Boudron.

¶ 5. On January 25, 2001, Boudron filed another pro se motion to vacate the default judgment but again did not raise the issue of service of process. On February 6, 2001, the circuit court entered an order denying Boudron's motion to vacate. On February 12, 2001, Boudron filed an amended supplemental motion to vacate the default judgment; as grounds for this motion, he alleged that he was never properly personally served.

¶ 6. On June 13, 2001, a hearing was held on this motion. The circuit court ruled that Boudron was properly served but his failure to file an answer constituted excusable neglect and thus the circuit court vacated the default judgment. An order was entered accordingly. Useni appeals the vacation of the default judgment and Boudron cross-appeals the finding that he was properly served.

DISCUSSION

¶ 7. Useni argues that the circuit court's decision to vacate the default judgment against Boudron was in error and in contravention of well-accepted principles governing excusable neglect. He also argues that

Boudron waived his defense of lack of personal jurisdiction. Boudron argues that the service of process upon him was insufficient and the circuit court lacked personal jurisdiction over him. We agree with Boudron that service was improper. Because we conclude that the circuit court lacked personal jurisdiction over Boudron, we need not address Useni's remaining arguments. See Sweet v. Berge; 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

¶ 8. Whether service of a summons is sufficient to obtain personal jurisdiction over a defendant involves the interpretation and application of a statute to undisputed facts and is reviewed as a question of law. Dungan v. County of Pierce, 170 Wis. 2d 89, 93, 486 N.W.2d 579 (Ct. App. 1992). The procedural requirements of commencing an action are specified in Wis. Stat. § 801.02, which provides, in relevant part:

(1) A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.

The purpose of the summons is twofold: it gives notice to the defendant that an action has been commenced against such defendant and it confers jurisdiction on the court over the person served. Am. Family Mut. Ins. Co. v. Royal Ins. Co. of Am., 167 Wis. 2d 524, 530, 481 N.W.2d 629 (1992). Wisconsin Stat. § 801.11 addresses personal jurisdiction and the manner of serving a summons and states, in relevant part:

A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
(1) Natural PERSON. Except as provided in sub. (2) upon a natural person:
(a) By personally serving the summons upon the defendant either within or without this state.
(b) If with reasonable diligence the defendant cannot be served under par. (a), then by leaving a copy of the summons at the defendant's usual place of abode:
1. In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof;
lm. In the presence of a competent adult, currently residing in the abode of the defendant, who shall be informed of the contents of the summons; or
2. Pursuant to the law for the substituted service of summons or like process upon defendants in actions brought in courts of general jurisdiction of the state in which service is made.
(c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall he mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence.
(d) In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.

¶ 9. Here, Boudron was properly served with the original summons and complaint; however, an amended summons and complaint was filed wherein Boudron was not named as a defendant, which therefore dismissed Boudron as a party-defendant. The amended summons and complaint effectively nullified the first summons and complaint, insofar as Boudron is concerned. See Holman v. Family Health Plan, 227 Wis. 2d 478, 484, 596 N.W.2d 358 (1999) (an amended complaint supersedes or supplants the prior complaint). A second amended summons and complaint named Fairview, Boudron's business, and renamed Boudron as defendants. Thus, Useni was required once more to obtain personal jurisdiction by individually serving Boudron with the second amended pleadings and complaint in compliance with Wis. Stat. §§ 801.02 and 801.11.

¶ 10. The affidavit of the process server indicates that he served the second amended complaint upon the business of "Fairview Family Restaurant, Inc." by serving "Steven M. Boudron owner/agent" at the business. The manner of service indicates that it was corporate service. One copy of the authenticated summons and complaint was served.

¶ 11. Neither Wis. Stat. § 801.02(1) nor § 801.11 allows a defendant who is being sued in a dual capacity (personally and officially) to be served in only one of those capacities; in fact, the plain language of the statute mandates that each defendant, Boudron and Fairview, be individually served. It is clear from the affidavit of the process server that only Fairview was served, not Boudron. Thus, Boudron was never properly served.

¶ 12. Useni argues that Boudron waived the right to object to lack of personal jurisdiction by filing motions to vacate the default judgment without raising the issue and then by appearing at the hearing on damages, attempting to argue the merits of Useni's claim. Proper service of a summons and complaint is required to confer personal jurisdiction on the court over the person served. See Am. Family, 167 Wis. 2d at 530. Motion papers cannot confer jurisdiction where a summons and complaint are required. Estate of Boyle v. Wickhem, Buell, Meier, Wickhem & Southworth, S.C., 134 Wis. 2d 214, 223, 397 N.W.2d 124 (Ct. App. 1986). Furthermore, appearances in an action do not waive a personal jurisdiction defense. Honeycrest Farms, Inc. v. Brave Harvestore Sys., Inc., 200 Wis. 2d 256, 268, 546 N.W.2d 192 (Ct. App. 1996).

¶ 13. Wisconsin compels strict compliance with the rules of statutory service, even though the consequences may appear to be harsh. Bendimez v. Neidermire, 222 Wis. 2d 356, 361, 588 N.W.2d 55 (Ct. App. 1998). Our supreme court has held that service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, despite actual knowledge by the defendant. Id. Even though failure to comply with the service requirements will result in a dismissal of the action and appear harsh under the circumstances, strict adherence to the procedural provisions is required. Id. at 362. Uniformity, consistency and compliance with procedural rules are important aspects of the administration of justice; if the statutory prescriptions are to be meaningful, they must be unbending. Id.

CONCLUSION

¶ 14. The circuit court did not obtain personal jurisdiction over Boudron because Useni failed to properly serve him with an authenticated copy of the second amended summons and complaint. Consequently, we grant the cross-appeal, reverse the order of the circuit court that Useni obtained personal jurisdiction over Boudron and dismiss the action.

¶ 15. Boudron moves for attorney's fees and costs under Wis. Stat. § 809.25(3). Boudron's motion does not specifically address whether the fees and costs are warranted under subd. (c)l or 2. We decline to find that Useni's appeal was frivolous and deny the motion.

By the Court. — Appeal dismissed; cross-appeal granted; order reversed and action dismissed.

       The caption in this case, and the majority of the references in this case, refer to the defendant as Steve Boudron; however, some references spell the name "Budron." We will utilize the name in the caption, Boudron.

       In his original brief on appeal, Useni did not provide any citations to the record to corroborate the facts set out in his briefs but instead cited to his appendix. Such failure is a violation of Wis. Stat. Rule 809.19(l)(d) and (3) (2001-02) of the rules of appellate procedure, which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      Furthermore, while the record documents in this case are numbered, the record documents do not contain any page numbers and are therefore difficult to utilize for reference. It is the appellant's responsibility to ensure that the record is sufficient to facilitate appellate review. Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997).

       Hobart eventually settled with Useni and is no longer a party to this action.

       Default judgment was entered against Fairview in the amount of $2,131,718 on August 21, 2001. That judgment has not been appealed. In addition, after further litigation in this matter, the action against Boudron was later dismissed by summary judgment on other grounds.


author: VERGERONT, P.J.

text:
    John Q. Kamps and Ruth R. Kamps, Petitioners, v. Wisconsin Department of Revenue, Respondent. Edward C. Wilkinson and Jean E Wilkinson, Petitioners-Appellants, v. Wisconsin Department of Revenue, Respondent-Respondent.
    Court of Appeals

      No. 02-2355.

      Submitted on briefs February 7, 2003.

    Decided April 24, 2003.

    2003 WI App 106
    (Also reported in 663 N.W.2d 306.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of Geri A. Wilkinson, Glendale.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Mary E. Burke, asst, attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.
   VERGERONT, P.J.

¶ 1. The primary issue on this appeal is whether certain of Edward Wilkinson's retirement payments are exempt from taxation under Wis. Stat. § 71.05(l)(a) (2001-02). The Tax Appeals Commission decided they were not. Wilkinson appeals the trial court's decision affirming the commission's ruling and order, contending that: (1) the commission erred in its construction of the statute, (2) the Department of Revenue (DOR) is equitably estopped from taxing the benefits, (3) taxation of these benefits denies his right to equal protection, and (4) the commission's decision is contrary to DOR's policy and practice.

¶ 2. We affirm the circuit court. We conclude that the commission's construction of Wis. Stat. § 71.05(l)(a) is entitled to great weight deference and, because the construction is not contrary to the clear language of the statute, the circuit court correctly upheld it. We also conclude that DOR is not equitably estopped from taxing the retirement payments and doing so does not violate Wilkinson's right to equal protection. Accordingly, the circuit court correctly affirmed the commission's decision on these points as well. Finally, Wilkinson is not entitled to reversal of the commission's decision on the ground that it is contrary to DOR's prior policy and practice.

BACKGROUND

¶ 3. Wilkinson was a teacher in the Milwaukee public schools from 1955 to 1967, becoming a member of the Milwaukee School Teachers' Annuity and Retirement Fund (the Milwaukee Fund) in September 1959. In 1967, Wilkinson took a position with the University of Wisconsin-Milwaukee and the University of Wisconsin Extension. In April of that year, he applied for a refund of his contributions to the Milwaukee Fund, and in June he received a complete refund. The application, which he signed, stated: "As a member of the FUND, I further agree that payments of said accumulation(s) made shall constitute a full and complete discharge and release of all right, interest or claim on my part to state deposit accumulations which accrued while a member of said FUND." Wilkinson's Milwaukee Fund ledger shows that in 1967 all deposited accumulations had been withdrawn, leaving a zero balance.

¶ 4. As a result of his new employment, Wilkinson became a member of the Wisconsin State Teachers Retirement System (the State System) on or about August 18, 1967. His State System ledger shows that when he began this service, he started out with a zero balance, there being no deposits from either him or the state attributable to his teaching service with the Milwaukee public schools.

¶ 5. In 1974, Wilkinson returned to employment with the Milwaukee public schools until his retirement in 1990. In 1990, he applied to the Wisconsin Retirement System to purchase under Wis. Stat. § 40.25(6) previously forfeited years of service under the Milwaukee Fund. Originally he purchased ten years of forfeited service, leaving 5.07 years of forfeited service uncredited. However, based on the results of litigation by other retirees, he was subsequently granted 7.7 years of his Milwaukee Fund forfeited service at no charge, and his years of forfeited service purchased were accordingly adjusted to 7.37 years, with payment for 2.63 years refunded. For the years at issue in this case, Wilkinson's retirement benefits were based on his non-forfeited years of service, two years of military service, and 7.37 years previously forfeited.

¶ 6. When he retired, Wilkinson received a copy of DOR Publication 108 entitled "How Your Retirement Benefits Are Taxed" dated June 1989, which provided in part:

Some payments received from the Wisconsin Retirement System are exempt for Wisconsin tax purposes (they are not exempt for federal tax purposes):
Payments received from the Wisconsin Retirement System if the payments were paid on the account of a person who was a member of the State Teacher's Retirement System or the Milwaukee Teacher's Retirement System as of December 31, 1963, or was retired from one of those retirement systems as of that date ....

Wilkinson relied upon this publication in preparing his Wisconsin income tax returns for 1991,1992, and 1993. He did not report on those returns the payments he received from the Wisconsin Retirement System for those years, which were: 1991 — $20,330; 1992— $21,343; 1993 — $22,481.

¶ 7. In 1995, DOR issued an income tax assessment against Wilkinson for the years 1991-93 in the amount of $4,834, plus $1,306.41 in interest, asserting, among other grounds, that the Wisconsin Retirement System payments he received in those years were subject to Wisconsin's income tax. Wilkinson petitioned for a redetermination, challenging only that portion of the assessment relating to the Wisconsin Retirement System payments. He contended the payments were exempt from taxation under Wis. Stat. § 71.05(l)(a), which provides:

Income computation. (1) Exempt and excludable income. There shall be exempt from taxation under this subchapter the following:
(a) Retirement systems. All payments received from ... the public employee trust fund as successor to the Milwaukee public school teachers' annuity and retirement fund and to the Wisconsin state teachers retirement system, which are paid on the account of any person who was a member of the paying or predecessor system or fund as of December 31, 1963 ....

DOR denied the petition for redetermination, stating that Wilkinson's withdrawal of his contributions from the Milwaukee Fund had terminated his membership and the purchase of previously forfeited years of service did not reinstate his account as of December 31, 1963.

¶ 8. Wilkinson petitioned for review by the commission and the commission affirmed DOR's decision. The commission concluded that prior commission decisions governed, and under those, because Wilkinson withdrew all his contributions and left nothing in his account, the payments he received in 1991-93 were not "paid on the account of' a person who was a member on December 31, 1963, within the meaning of Wis. Stat. § 71.05(l)(a). The commission rejected Wilkinson's argument that DOR was equitably estopped from assessing the tax because of Publication 108. It also rejected his argument that his right to equal protection was violated because DOR had allowed former members of the State System, who had withdrawn their deposit accumulations prior to December 31, 1963, to be considered members of the State System as of December 31, 1963.

¶ 9. Wilkinson petitioned for judicial review in the circuit court. The circuit court concluded that the commission's construction of Wis. Stat. § 71.05(1) (a) was entitled to great weight deference and, applying that standard of review, it affirmed the commission's construction. The court agreed with the commission that neither equitable estoppel nor the equal protection clause precluded taxation of the retirement payments.

DISCUSSION

¶ 10. We first address Wilkinson's contention that the commission erroneously interpreted Wis. Stat. § 71.05(l)(a). According to Wilkinson, under the plain language of that statute, if one is a member of the Milwaukee Fund on December 31, 1963, then retirement benefits paid on that person's behalf are exempt, and it is irrelevant whether the person subsequently withdrew his contributions after that date.

¶ 11. Construction of a statute and its application to a given set of facts present a question of law, which we review de novo. Harnischfeger Corp. v. LIRC, 196 Wis. 2d. 650, 659, 539 N.W.2d 98 (1995). If the language of a statute is plain, we apply that language to the facts at hand. UFE Inc. v. LIRC, 201 Wis. 2d 274, 281, 548 N.W.2d 57 (1996). However, if a statute is ambiguous, although we are not bound by an agency's construction, we may in certain situations defer to an agency's construction of a statute. Id. at 281-84. We give great weight deference'when:

(1) the agency was charged by the legislature with the duty of administering the statute; (2). . . the interpretation of the agency is one of long-standing; (3). . . the agency employed its expertise or specialized knowledge in forming the interpretation; and (4).. . the agency's interpretation will provide uniformity and consistency in the application of the statute.

Id. at 284. We give a lesser amount of deference — due weight — when the agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute. Id. at 286.

¶ 12. Under the great weight standard, we uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if we conclude another interpretation is more reasonable. Id. at 287. Under the due weight standard, we uphold the agency's reasonable interpretation if it comports with the purpose of the statute and we conclude there is not a more reasonable interpretation. Id. We give no deference to the agency, and review the issue de novo, when the issue before the agency is one of first impression or the agency's position has been so inconsistent as to provide no real guidance. Id. at 285.

¶ 13. We do not agree with Wilkinson's contention that the language of Wis. Stat. § 71.05(l)(a) plainly exempts the retirement payments he received. Statutory language is ambiguous and not plain if it is capable of being understood by a reasonably well-informed person in two or more senses. Reyes v. Greatway Ins. Co., 221 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). Depending on the facts of a case, the same statute may be ambiguous in one setting and unambiguous in another. Id. Wilkinson construes "on the account of' to mean "on behalf of," and then reads "any person who was a member ... as of December 31, 1963" to require membership on that date, regardless of what happened later. That is a reasonable construction. However, "account" in this context could also be reasonably understood as the amount of funds accumulated for the member. Thus, "payments . . . paid on the account of any person who was a member ... as of December 31, 1963" could be reasonably understood to mean payments based on funds in the person's account on that date. Under Wilkinson's construction, the only relevant fact is membership on the statutory date. Under the latter construction, the relationship between the retirement payments and the account on that date is also significant. When, as in this case, none of the retirement payments are based on what was in the account as of that date, a reasonably informed person could understand that those payments are not exempt.

¶ 14. Because we conclude the statute is ambiguous, we must decide the level of deference to give to the commission's construction. There is no dispute that the commission is charged by the legislature with being the final authority for all questions of law involving taxes, Wis. Stat. § 73.01(4), and that in construing Wis. Stat. § 71.05(l)(a) the commission has employed the expertise gained from discharging that duty over the years. However, the parties do dispute whether the commission's construction of § 71.05(l)(a) in prior cases has been consistent. DOR points out that the commission has issued at least four decisions that construe § 71.05(l)(a) as not exempting payments where the employee, although a member of the relevant system on December 31, 1963, subsequently withdrew all the contributions in his or her account. Groschel v. Wisconsin Dep't of Revenue, Wis. Tax Reporter [CCH] ¶ 400-235 (July 19, 1996); Hafner and DeRango v. Wisconsin Dep't of Revenue, Wis. Tax Reporter [CCH] ¶ 400-395 (Nov. 23,1998) (insofar as this case concerns DeRango); Thomas v. Wisconsin Dep't of Revenue, Wis. Tax Reporter [CCH] ¶ 400-564 (Aug. 9, 2001); and Hansis v. Wisconsin Dep't of Revenue, Wis. Tax Reporter [CCH] ¶ 400-548 (June 25, 2001). Wilkinson responds that another commission decision, Connor v. Wisconsin Dep't of Revenue, Wis. Tax Reporter [CCH] ¶ 400-176 (Nov. 14, 1995), as well the commission's decision concerning Hafner in Hafner and DeRango conflict with the cases on which the commission relies.

¶ 15. The commission decisions relied on by Wilkinson concerned employees who, unlike Wilkinson, withdrew the deposited accumulations prior to December 31, 1963. The commission concluded that the subsequent repurchase of the previously forfeited years of service did not make them a member on December 31, 1963, explaining that "membership under section 71.05(l)(a) means membership as a historical fact, not membership that is constructive or purchased at a later date." Hafner and DeRango, Wis. Tax Reporter [CCH] ¶ 400-395 at 31,450, citing Connor. We do not agree that this suggests that membership as a historical fact on December 31, 1963, entitles! one to an exemption under Wis. Stat. § 71.05(l)(a). Rather, the lack of membership as a historical fact meant the commission could stop there in its analysis of the statutory language. However, when the employee is a member on that date as a matter of historical fact, as in the cases on which the commission relies, then it is necessary for the commission to consider the meaning of "payments ... which are paid on the account of any person who was a member .. ." on that date. Section 71.05(l)(a).

¶ 16. For the same reason, we reject Wilkinson's argument that our decision in Hafner v. DOR, 2000 WI App 216, 239 Wis. 2d 218, 619 N.W.2d 300, is inconsistent with the commission's decisions. The commission's decision in Hafner and DeRango was affirmed by the circuit court, and both Eugene and Lorraine Hafner and DeRango appealed to this court. Hafner v. DOR, 239 Wis. 2d 218, ¶ 1. For reasons we cannot explain, the summary of the facts in Hafner v. DOR described all appellants as "employees who had left federal service before the cutoff date, and were reemployed sometime thereafter." Id., ¶ 2. We therefore did not address the issue the commission decided with respect to DeRango, only the issue it decided with respect to Hafner, and we upheld the commission's construction of "member" to require membership as a historical fact, not membership that is constructive or repurchased at a later date to be a reasonable one. Id., ¶¶ 12-13. We did not in Hafner v. DOR address the construction of the statute as applied to a person in Wilkinson's situation.

¶ 17. We conclude that the commission's construction of Wis. Stat. § 71.05(l)(a) is well-established, consistent, and has provided uniformity in its application. We therefore agree with the circuit court that great weight deference is appropriate. Accordingly, we must uphold the commission's construction if it is not contrary to the clear meaning of the statute, even if we consider another construction more reasonable. UFE Inc., 201 Wis. 2d at 283. As we have already concluded, the language of the statute is not plain, and the commission's construction is a reasonable one. Given the general rule that tax exemptions are narrowly construed, Hafner v. DOR, 239 Wis. 2d 218, ¶ 11, it is reasonable for the commission to adopt the narrower construction of the exemption and conclude that the legislature intended to exempt only those retirement payments that are based on balances in members' accounts on the statutory date.

¶ 18. We do not agree with Wilkinson that the commission's construction is contrary to the supreme court's decision in Schmidt v. Wisconsin Employe Trust Funds Board, 153 Wis. 2d 35, 449 N.W.2d 268 (1990). That case addressed the entitlement to years of creditable service when an employee returned to teach in the Wisconsin public school system after having withdrawn all his contributions to the fund, plus interest, and signed a waiver of all right to state deposit accumulations based on his teaching service after the date on which his employment began. Id. at 37-38. The court rejected the board's position that the waiver of a right to the state deposit accumulations expunged the years of teaching from his record and concluded that the years were still creditable service as defined in Wis. Stat. § 42.245(l)(a) (1965), although under § 42.245(l)(c) (1965) the effect of the withdrawal was that the accrued years of creditable service for which the required deposits were withdrawn were reduced by half. Id. at 46-47.

¶ 19. Wilkinson asserts that Schmidt recognizes that a member's "account" is made up of both monetary contributions and years of service. Although he had no money in his account after his withdrawal, he continues, he still had credits based on years of service, and his annuity is being paid based on his creditable years of service, which include the years for which he withdrew the money. While it might be reasonable, based on Schmidt, to construe "on the account of' in Wis. Stat. § 71.05(l)(a) to include creditable years of service, Schmidt does not mandate that construction. Indeed, because of the distinction the court in Schmidt makes between money accumulated in a member's retirement fund and creditable years of service, one could also reasonably argue that "account" in § 71.05(1)(a) refers to the former but not the latter. Schmidt was concerned with the construction of the statutes regarding creditable years of service and the effect of the withdrawal of monetary contributions on the creditable years of service; Schmidt does not resolve the meaning of "on the account of' in § 71.05(l)(a).

¶ 20. We next address Wilkinson's contention that DOR is equitably estopped from taxing the Wisconsin Retirement System payments for the years 1991-93. He argues that because he relied on the DOR's Publication 108 in deciding that the payments were not taxable, it is inequitable for DOR to assess taxes and interest on those payments. Generally, to establish equitable estoppel, a party must demonstrate: (1) action or non-action (2) by the party against whom estoppel is asserted (3) that induces reasonable reliance by the party asserting estoppel (4) to that party's detriment. Sanfe-lippo v. DOR, 170 Wis. 2d 381, 390, 490 N.W.2d 530 (Ct. App. 1992). However, when estoppel is asserted against the government, the party invoking it bears a heavy-burden: the evidence must be so clear and distinct that the contrary result would amount to a fraud. Cohn v. Town of Randall, 2001 WI App. 176, ¶ 19, 247 Wis. 2d 118, 633 N.W.2d 674.

¶ 21. DOR argues that the commission's decision that equitable estoppel does not apply is entitled to great weight deference. Wilkinson does not address our standard of review on this issue. We do not decide the proper standard of review, because, even if we apply a de novo standard, we conclude Wilkinson has not established equitable estoppel. The premise of his argument is that DOR Publication 108 did not accurately instruct him. However, the pamphlet essentially tracks the wording of the statute, and contains the same ambiguity as does the statute. Even if it were reasonable for him to rely on his understanding of this ambiguous language without further inquiry, he has not shown that he suffered a detriment that resulted from DOR's failure to clearly explain that his Wisconsin Retirement System payments were not exempt. Had DOR provided that explanation, Wilkinson would presumably have paid the taxes earlier and would not have had the use of the money he paid in taxes. He is in no worse position by having to pay the taxes at a later time, along with interest on the amount of unpaid tax.

¶ 22. Wilkinson also contends his right to equal protection has been violated because DOR treated him differently than it did members of the State System who withdrew their member deposits prior to 1964. Wisconsin Tax Bulletin 76, issued by DOR in April 1992, and Wisconsin Tax Bulletin 98, issued in July 1996, advised members of the State System who withdrew their member deposits prior to 1964 that they could still qualify for the exemption under Wis. Stat. § 71.05(a)(1). On January 1, 2000, DOR issued Bulletin 118, which revoked this advice but allowed persons drawing State System pensions to rely on this advice for years beginning prior to January 1, 2000.

¶ 23. Both the Fourteenth Amendment of the United States Constitution and article I, section 1 of the Wisconsin Constitution guarantee equal protection of the laws and afford substantially the same protections. Group Health Coop. of Eau Claire v. DOR, 229 Wis. 2d 846, 855, 601 N.W.2d 1 (Ct. App. 1999). Equal protection guarantees that similarly-situated persons are treated similarly. Telemark Dev., Inc. v. DOR, 218 Wis. 2d 809, 826, 581 N.W.2d 585 (Ct. App. 1998). Where, as in this case, no fundamental right or suspect class is involved, the inquiry is whether there is a rational basis for the difference in treatment. The application of a constitutional standard to a given set of facts is a question of law, which we review de novo. National Motorists' Ass'n v. OCI, 2002 WI App 308, ¶ 29, 259 Wis. 2d 240, 655 N.W.2d 179.

¶ 24. We conclude DOR did have a rational basis for treating members of the State System who had withdrawn their member deposits prior to 1964 differently than Wilkinson for purposes of applying Wis. Stat. § 71.05(l)(a) for years beginning prior to January 1, 2000. The advice in both Bulletins 7.6 and 98 was entitled "Eligibility for the Wisconsin Income Tax Exemption for Members of the Wisconsin State Teachers Retirement System [State System]" and the advice in each was based on a specific set of facts. At the relevant time, Wilkinson was not a member of the State System but of the Milwaukee Fund, and he had not withdrawn his member deposit before 1964, as in the factual scenario in both bulletins. He contends that the reasoning of these bulletins applies to him, but that is not the proper inquiry. The proper inquiry is whether it is reasonable for DOR to treat him differently from those persons who were specifically advised by the bulletins that their retirement payments were exempt. It is reasonable to do so because persons whose specific situations were addressed in the bulletins would understandably assume their retirement payments were exempt, whereas others could be reasonably expected to inquire further, particularly in view of the cautionary language in the bulletins.

¶ 25. Finally, Wilkinson contends that the commission's construction of Wis. Stat. § 71.05(l)(a) is inconsistent with DOR's prior policy and practice and must therefore be reversed. DOR disputes this. Since Wilkinson did not raise this before the commission as an issue distinct from equitable estoppel and equal protection, we are not in a position to determine as a factual matter what DOR's prior practice and policy was with respect to persons in Wilkinson's situation. It is not necessary that we do so, however, because the statute Wilkinson relies on does not support his position.

¶ 26. Wilkinson relies on Wis. Stat. § 227.57(8), which provides:

(8) The court shall reverse or remand the case to the agency if it finds that the agency's exercise of discretion... is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency ....

However, the "agency" referred to is the agency whose decision is subject to judicial review under ch. 227, and that is the commission, not DOR. See Wis. Stat. § 73.015(2). Wilkinson does not develop an argument explaining why DOR's policies or practices preclude the commission from construing and applying Wis. Stat. § 71.05(l)(a) as it did in this case, when Wilkinson has not shown grounds for equitable estoppel against DOR and has not shown an equal protection violation. Accordingly, we conclude Wilkinson is not entitled to a reversed of the commission's decision on this ground.

By the Court. — Order affirmed.

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

       Jean Wilkinson is also an appellant, but for simplicity's sake we refer only to Edward, the retired employee. Wilkinson's petition for judicial review of the commission's decision was consolidated in the circuit court with that of John and Ruth Kamps, but they have not appealed the circuit court's decision.

       The relevant facts are not disputed and are taken from the commission's ruling and order.

       We review the decision of the commission, not that of the circuit court. Hafner v. DOR, 2000 WI App 216, ¶ 3, 239 Wis. 2d 218, 619 N.W.2d 300.

       Wisconsin Stat. § 42.245(l)(c) (1965) provided:
      (c) Creditable service for Wisconsin teaching prior to September 11, 1965 shall be reduced by one-half of any period included therein with respect to which the required deposits of a member have been withdrawn, unless repayment of any such withdrawal has been made prior to July 1, 1996, pursuant to any applicable law. Nothing in this paragraph shall be construed to reinstate any rights waived in connection with the payment of a withdrawal or separation benefit.

       We observe that Wis. Stat. § 71.05(1) (a) was enacted by Laws of 1963, ch. 267, § 4 (codified at Wis. Stat. § 71.03(2) (g) (1963)), before the legislature created the formula group and the concept of "creditable years of service" in Laws of 1965, ch. 250, § 5.

       The section on "Tax Releases" in the bulletins contained questions and answers on various topics, which are preceded by this language:
      "Tax Releases" are designed to provide answers to the specific tax questions covered, based on the facts indicated. In situations where the facts vary from those given herein, the answers may not apply.