author: ROGGENSACK, J. DYKMAN, J.

text:
    Richard Thielman, Plaintiff-Respondent, v. Joseph Leean, Laura Flood, Byran Bartow, James Doyle, State of Wisconsin and Wisconsin Resource Center, Defendants, Wisconsin Department of Health and Family Services, Defendant-Appellant.
    Court of Appeals

      No. 02-0888.

      Submitted on briefs September 10, 2002.
    Decided January 23, 2003.

    2003 WI App 33
    (Also reported in 659 N.W.2d 73.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Joely Urdan, assistant attorney general.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mary E. Kennelly of Fox & Fox, S.C. of Madison.
    Before Dykman, Roggensack and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. The Department of Health and Family Services (DHFS) appeals the circuit court's order enjoining DHFS from transporting Richard Thielman and similarly committed Wis. Stat. ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport. The circuit court determined that DHFS's transportation policy for ch. 980 patients violated Wis. Stat. § 51.61(l)(i) (1999-2000). Because we conclude that § 51.61(l)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons and because there is nothing in the language of the statute that requires treatment facilities to exercise that discretion for each individual patient, rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made, we reverse the circuit court's order.

BACKGROUND

¶ 2. In May 1998, Richard Thielman was adjudicated a sexually violent person and committed to DHFS for control, care and treatment until such time as he is no longer sexually violent. Wis. Stat. § 980.06(1). This finding of being sexually violent was supported by proof beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a). He was assigned to WRC.

¶ 3. Thielman has numerous health problems that require transporting him for medical treatment outside WRC on a regular basis. In accordance with WRC policy, Thielman was temporarily placed in full restraints during the transports.

¶ 4. In October 2000, Thielman sued DHFS for alleged violations of Wis. Stat. § 51.61, on his own behalf and on behalf of all similarly situated patients committed under ch. 980. Thielman alleged that WRC's policy of transporting ch. 980 patients in full restraints violated his right to be free from physical restraints under § 51.61(l)(i) and his right to the least restrictive conditions necessary to achieve the purposes of commitment under § 51.61(l)(e). Both DHFS and Thielman moved for summary judgment. The circuit court granted judgment in Thielman's favor and permanently enjoined DHFS from transporting ch. 980 patients in full restraints, without first making individualized determinations that restraints are needed.

¶ 5. During the course of the proceedings, the legislature amended Wis. Stat. § 51.61(l)(i) to provide that patients detained or committed under ch. 980 may be restrained during transport for security reasons. Accordingly, DHFS moved for reconsideration of the permanent injunction on the grounds that the recent amendment clearly authorized WRC's restraint of ch. 980 patients during transport. The circuit court affirmed, but it amended its order to conclude that § 51.61(1)(i) provided the exclusive basis for the relief granted. DHFS appeals only the circuit court's order preventing future transports of ch. 980 patients in full restraints without prior individual determinations that restraints of the level used are necessary for the transport.

DISCUSSION

Standard of Review.

¶ 6. We review questions of statutory interpretation de novo. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496. Additionally, whether a statute is ambiguous is a question of law that we review without deference to the circuit court. Awve v. Physicians Ins. Co. of Wis., Inc. 181 Wis. 2d 815, 822, 512 N.W.2d 216, 218 (Ct. App. 1994).

Wisconsin Stat. § 51.61(l)(i).

¶ 7. Convicted sex offenders involuntarily detained or committed under ch. 980 are subject to certain provisions under both ch. 980 and ch. 51. State v. Anthony D.B., 2000 WI 94, ¶ 11, 237 Wis. 2d 1, 614 N.W.2d 435. Additionally, they are entitled to patients' rights set forth in ch 51. Id. at ¶ 15. Wisconsin Stat. § 51.61(l)(i) governs the use of restraints on mental health patients, including ch. 980 patients during transportation to and from treating facilities. The current statute provides in relevant part:

Patients who have a recent history of physical aggression may be restrained during transport to or from the facility... . Patients who are committed or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975, or who are detained or committed under ch. 980, may be restrained for security reasons during transport to or from the facility. (2001-02) (italics added).

¶ 8. DHFS argues that Wis. Stat. § 51.61(l)(i) permits the department's use of a blanket policy for transporting all ch. 980 patients in full restraints for security reasons. DHFS explains that it formulated its policy for ch. 980 patients based on prior individual determinations of dangerousness that courts have made in each case and its experience transporting ch. 980 patients that has shown the need to protect the public from danger during transports. We agree that § 51.61(l)(i) gives DHFS the authority to decide whether to use full restraints during transport and that it does not prohibit exercising this authority through a policy that covers all ch. 980 patients within its care.

¶ 9. The resolution of the scope of DHFS's authority during transport turns on the policies that underlie a ch. 980 commitment which policies inform our construction of the word "may" in Wis. Stat. § 51.61(l)(i). When we construe a statute, our aim is to determine the intent of the legislature. We do so by first examining the language of the statute itself. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). As an initial matter, we must determine whether the statute is clear and unambiguous on its face or whether its language is capable of being understood by reasonably well informed persons in two or more ways. Id. When a statute is clear, generally we will not look beyond the language chosen by the legislature to determine legislative intent. Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 352, 575 N.W.2d 734, 736 (Ct. App. 1998). In so doing, we will interpret the statute based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145, 149 (1986). The underlying purpose of ch. 980 is to "treat the individual's mental illness and protect him and society from his potential dangerousness." State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115, 124 (1995) (citation omitted).

¶ 10. The parties focus on the meaning of the words "may be restrained for security reasons" in Wis. Stat. § 51.61(l)(i). The word "may" is generally construed as permissive or directory. See State v. Sprosty, 227 Wis. 2d 316, 325, 595 N.W.2d 692, 696 (1999); City of Wauwatosa v. County of Milwaukee, 22 Wis. 2d 184, 191, 125 N.W.2d 386, 389 (1963). The use of permissive language connotes a grant of discretionary power by the legislature to an authorized decision-maker. Swatek v. County of Dane, 192 Wis. 2d 47, 59, 531 N.W.2d 45, 50 (1995) ("[T]he use of the word 'may' implies a discretionary element."); see also Miller v. Smith, 100 Wis. 2d 609, 616, 302 N.W.2d 468, 471 (1981). Neither party disputes this basic principle. Where the parties diverge is in how the legislature intended DHFS to exercise its discretion.

¶ 11. Thielman first contends that the word "may" requires DHFS to exercise its discretion by deciding in each individual case how much restraint is needed for security reasons during each individual transport. Under Thielman's construction, each patient would have to be evaluated prior to being transported to determine whether he has significant, little or no propensity for escape or injury to a staff member during the transport. Only then, according to Thielman, could DHFS lawfully exercise the discretionary authority granted by the legislature under Wis. Stat. § 51.61(l)(i). However, he cites no legal authority to support his contention that the word "may" does not permit discretionary security decisions to be based on prior individualized determinations of dangerousness for a class of patients and DHFS's own past experience with ch. 980 patients, as DHFS has done here. Furthermore, Thielman's argument is premised on the assumption that a ch. 980 patient has the right to be transported to and from a treatment facility free from restraints. However, there is nothing in the plain language of the statute that grants Thielman that right and the United States Court of Appeals for the Seventh Circuit has concluded Thielman has no such right. Thielman v. Leean, 282 F.3d 478, 484 (7th Cir. 2002). Rather, § 51.61(l)(i) granted DHFS permission to transport ch. 980 patients in restraints for safety reasons. Therefore, we conclude that § 51.61(l)(i) is not internally ambiguous with regard to transporting ch. 980 patients based solely on the words within the statute itself.

¶ 12. Thielman's second argument is rooted in his reading of the interplay between Wis. Stat. § 51.61(l)(e) and § 51.61(1) (i) that he concludes requires the result ordered by the circuit court. It is true that a statute that appears unambiguous on its face, may be rendered ambiguous by its interaction with and relation to other statutes. State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346, 348 (1980). Thielman begins by contending that under § 51.61(1)(e), ch. 980 patients have a right to the least restrictive conditions no matter whether they are in an institution or being transported. DHFS contends that § 51.61 (l)(e) does not apply to transportations because there is a more specific statute on the topic, and the circuit court ultimately came to the same conclusion.

¶ 13. We begin our analysis of this argument by examining the provisions of Wis. Stat. § 51.61(l)(e), which state in relevant part:

[Patients] have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or protective placement, under programs, services and resources that the county board of supervisors is reasonably able to provide ....

Subsection (e) is focused on accomplishing the specific purpose for which each individual patient was committed. Here, the purpose of Thielman's commitment is to treat his mental defect that causes him to be sexually dangerous. However, this must be accomplished while protecting him and others from his dangerousness. Anthony, 2000 WI 94 at ¶ 12. DHFS is required to work toward correcting Thielman's sexual dangerousness by the least restrictive means. Section 51.61(l)(e) is a general statement of the terms and conditions of confinement as they bear on the purpose of the commitment. Accordingly, it is not aimed at the specific, temporary task of transporting a patient to or from an institution.

¶ 14. On the other hand, Wis. Stat. § 51.61(l)(i) does address transports. It is the more specific statutory provision bearing on the use of physical restraints when transporting a patient for medical care, the focus of Thielman's complaint. When two statutes could be interpreted to apply to the same area of concern, the more specific provision controls. State v. Smith, 106 Wis. 2d 151, 159, 316 N.W.2d 124, 128 (Ct. App. 1982). Furthermore, there is nothing in § 51.61(l)(e) that directs its application during transports. It applies to conditions used in accomplishing the "purpose" for which the commitment was made, and nothing in the language chosen by the legislature for § 51.61(l)(e) causes § 51.61(l)(i) to become ambiguous. The two subsections simply apply on different occasions.

¶ 15. Furthermore, Wis. Stat. § 51.61(l)(i) has long provided that if a patient committed for any reason has a "recent history of physical aggression" restraints could he used during transport. Therefore, if the only occasion on which a ch. 980 patient could be restrained during transport were when he/she had recently exhibited overt physical aggression, there would have been no need to add the provision to § 51.61(l)(i) stating that patients "who are detained or committed under ch. 980," may also be restrained for security during transport. Accordingly, we conclude that the legislature unambiguously permitted DHFS to exercise its discretion by a reasonable method of its choice.

DHFS's Discretion.

¶ 16. We next review whether DHFS erroneously exercised its discretion. An agency exercises its discre tion appropriately when it considers the relevant facts, applies the proper standard of law and, using a rational process, reaches a conclusion that is reasonable. See Rodak v. Rodak, 150 Wis. 2d 624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989). Here, Mario Canziani, WRC's security director, averred that the WRC's policy was based in part on specific instances of aggression by ch. 980 patients, including battery to the staff and other patients. He related that there have been at least six cases of battery by ch. 980 patients that have been referred for prosecution since 1998, and in one instance, a patient escaped during transport and abducted a child. Canziani also averred that the transportation policy was based on the nature of ch. 980 commitments where patients have been individually adjudicated sexually violent and dangerous. Furthermore, he opined that since their commitment may last the entirety of their lives, they are more prone to attempt escape than the average prisoner. See Wis. Stat. § 980.06. Canziani also averred that the WRC policy permits security staff to depart from the written policy and apply fewer restraints during transport if the situation warrants. Patients may also request that plastic or alternative restraints be used if he/she has an adverse reaction to metal restraints.

¶ 17. Accordingly, we conclude that DHFS did not erroneously exercise its discretion in permitting the transportation of ch. 980 patients to and from treating institutions in full restraints. Therefore, we reverse the circuit court's order prohibiting WRC from transporting Thielman, and similarly situated patients, in full restraints absent individual determinations that such restraints are the least restrictive mode of transporting each individual patient.

CONCLUSION

¶ 18. Because we conclude that Wis. Stat. § 51.61(l)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport Wis. Stat. ch. 980 patients in restraints for security reasons and because there is nothing in the language of the statute that requires treatment facilities to exercise that discretion for each individual patient, rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made, we reverse the circuit court's order.

By the Court. — Order reversed.

DYKMAN, J.

¶ 19. (dissenting). This is a case about stereotypes. It involves a group of patients civilly committed under Wis. Stat. ch. 980 (1999-2000). The question is whether the Department of Health and Family Services can place all patients in restraints when transporting them, or whether DHFS must consider individual circumstances before placing a patient in restraints for transport.

¶ 20. The question is one of statutory interpretation. It involves a statute, Wis. Stat. § 51.61 entitled "Patients rights." The statute begins: "[E]ach patient shall." What follows is a comprehensive list of requirements that DHFS must follow. Getting closer to the issue at hand, § 51.61(1)(i)l begins: "... have a right to be free from physical restraint and isolation except for emergency situations or when isolation or restraint is a part of a treatment program." Then comes a comprehensive list of requirements for DHFS to follow when using isolation or restraints.

¶ 21. One cannot help but notice the emphasis the legislature has put on the limited situations when restraints can be used: "Isolation or restraint may be used only when less restrictive measures are ineffective or not feasible and shall be used for the shortest time possible." Id.. And "Isolation or restraint may be used for emergency situations only when it is likely that the patient may physically harm himself or herself or others." Id. Other parts of the statute speak to the required use of physicians or psychologists to order the use of restraints.

¶ 22. The statute then continues with exceptions to its policy limiting the use of restraints. There are really only two sentences that specifically speak to the case we decide today. One sentence reads: "Patients who have a recent history of physical aggression may be restrained during transport to or from the facility." Id. The only reasonable interpretation of this sentence is that DHFS is permitted to use restraints if a patient has a recent history of physical aggression. The second sentence reads: "Patients who are committed or transferred under s.51.35(3) or 51.37 or under ch. 971 or 975, or who are detained or committed under ch. 980, may be restrained for security reasons during transport to or from the facility."

¶ 23. Both sentences concern themselves with the use of restraints during transport. If we look at the first sentence alone, it seems obvious that DHFS must make an individual inquiry as to each ch. 980 patient it intends to transport to determine whether the patient has a recent history of physical aggression. The second sentence permits a patient to be restrained for security reasons during transport.

¶ 24. The majority's method of dealing with these two sentences is to ignore the first sentence because the second sentence doesn't require DHFS to consider individual reasons for restraints during transport. The majority holds that by doing this, it can conclude that Wis. Stat. § 51.61(l)(i)l unambiguously permits DHFS to transport all patients in restraints without an inquiry into whether the restraints are needed.

¶ 25. Initially, one might ask: "Why not ignore the second sentence? It isn't any better or any worse than the first one." But ignoring any part of a statute is judicially frowned upon. "Moreover, in interpreting a statute, courts must attempt to give effect to every word of a statute, so as not to render any portion of the statute superfluous." Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893. So, I would start with an intent to give meaning to both sentences. When confronted with a statutory inconsistency, a court's duty is to construe two statutes on the same subject matter in a manner as to harmonize these provisions in order to give each full force and effect. Ahrens v. Town of Fulton, 2002 WI 29, ¶ 28,251 Wis. 2d 135, 641 N.W.2d 423 (citation omitted).

¶ 26. First, of course, I must determine whether the two sentences, and therefore the statute, is ambiguous. A statute is ambiguous if it is capable of being understood in more than one way or in more than one sense by reasonably well-informed persons. State ex rel. Kaminski v. Schwarz, 2001 WI 94, ¶ 29, 245 Wis. 2d 310, 630 N.W.2d 164. The majority concludes that the two sentences, and therefore the statute, are not ambiguous. But the way the majority does this is to ignore the first sentence.

¶ 27. I don't think it's that easy. A sentence in a statute permitting restraint during transport only if a patient has a recent history of physical aggression is difficult for me to ignore when the question is whether DHFS can uniformly use restraints on all ch. 980 patients during transport. Initially, therefore, I conclude that Wis. Stat. § 51.61(l)(i)l is ambiguous because reasonably well-informed persons could interpret the statute in two ways, depending upon which of the two sentences the reasonably well-informed person focused on. At least, the statute is unclear.

¶ 28. It is also well understood what courts are to do when confronted with an ambiguous statute. If a statute is unclear or ambiguous, courts use extrinsic aids for guidance. Kaminski, 2001 WI 94 at ¶ 29. When reasonable minds could differ as to the meaning of a statute, the court examines the scope, history, context, subject matter and purpose of the statute in question. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶ 17, 245 Wis. 2d 396, 629 N.W.2d 662.

¶ 29. Any ambiguity disappears when considering the scope, subject matter and purpose of Wis. Stat. § 51.61 as a whole. This is a statute which, in lengthy detail, outlines "Patients rights." That is its title. Reading this lengthy statute, one cannot help but note that the Wisconsin legislature has gone to great lengths to protect civilly committed patients. The first sentence I have considered, which the majority concludes it can ignore, is very much consistent with the remaining parts of this lengthy statute, and consistent with the purpose of the statute — to grant real and extensive rights to individual patients confined in a hospital against their will. I cannot ignore a statute which permits restraint during transport only if the patient has a history of recent physical aggression.

¶ 30. But I must, if I can, harmonize the first sentence, and the balance of the statute with the last sentence in Wis. Stat. § 51.61(l)(i)l. I find this possible. The last sentence of the statute tells DHFS that it can restrain a patient during transport only for security reasons. This is an exception to the rights given patients earlier in the statute. Exceptions are to be narrowly construed. Fox v. Bock, 149 Wis. 2d 403, 411, 438 N.W.2d 589 (1989). It makes common sense in a statute granting patients' rights that restraints during transport are limited to what is an overriding concern —the safety and security of the patient and the persons transporting the patient. It seems irrational to me to recognize that restraints during transport would serve no rational purpose in an individual case, but to still require the restraints.

¶ 31. The first sentence tells us how DHFS is to determine when security requires transport restraints. The answer is clear: Only when the patient has shown a recent history of physical aggression. This too makes common sense. A docile patient whose history in the institution is one of compliance and flexibility is unlikely to threaten his security or that of his transporters.

¶ 32. DHFS has interpreted Wis. Stat. § 51.61 to require an individual assessment of a patient before placing him or her in restraints for transport. DHFS Policy No. 3-1-8-P provides: "In accordance with Wis. Stat. 51.61(l)(i), Patients may be restrained during transport to or from the facility. The least restrictive restraint necessary to protect the patient and others ° should be used."

¶ 33. The majority discounts this policy order by noting that Policy No. 3-1-8-P was promulgated before a recent amendment to Wis. Stat. § 51.61(l)(i)l. The statutory amendment, however, only added ch. 980 patients to a list of patients to whom the policy applied. DHFS did not repeal the policy after the statutory amendment. I conclude that DHFS's policy reflects the agency's interpretation of the statute, and that the majority should have deferred to this reasonable interpretation. Hillhaven Corp. v. DHFS, 2000 WI App 20, ¶ 12 n.6, 232 Wis. 2d 400, 606 N.W.2d 572.

¶ 34. The requirement of individual assessment of patients to determine whether they are transport risks fits perfectly with this harmonization of the two sentences in Wis. Stat. § 51.61(l)(i)l. The second sentence I have considered tells its readers that patients may be restrained for security reasons during transport. The first sentence explains what those security reasons are: A history of recent physical aggression. While the two sentences could have been written to more succinctly convey this meaning, that is not the test. In my view, it is not possible to read these two sentences as giving DHFS carie blanche to place transported patients in restraints for any reason or no reason.

¶ 35. It is always easier to stereotype individuals and ascribe perceived traits of the group to all the individuals in the group. "Irish need not apply" and "Women belong in the home" are stereotypes that once existed, permitting what we now see as irrational classifications. Government is prone to stereotyping because it is easy, it sets out a rule that all must follow, and it limits the discretion of individual decision makers. "Everyone is treated alike" is an easily defended policy. Transporting a comatose patient in full restraints is therefore defensible.

¶ 36. But as with more pernicious stereotypes, individuals can fit the stereotype but not exhibit the behavior ascribed to the group. It is only by examining the individual that one can determine his or her individual qualities or detriments. So, when a statute focused on protecting patients' rights extending over five pages in the Wisconsin Statutes must be interpreted, I do so in favor of an interpretation comporting with the intent of the statute as a whole, and not one which flies in the face of that intent by permitting DHFS to stereotype patients. That is the easy way out, but not the right one. That is why I respectfully dissent.

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

       The WRC policy provides that all ch. 980 patients are transported out of the institution in full restraints, which means handcuffs, waist belt, and leg irons.

       The original suit also named Joseph Leean, Laura Flood, Bryan Barrow, James Doyle, State of Wisconsin and WRC as defendants. The circuit court dismissed those parties with prejudice, but without any preclusive effect on Thielman's ability to pursue his claims against DHFS. Therefore, DHFS is the named party in this appeal.

       We note that this case presents solely as a question of statutory interpretation, not as a constitutional challenge to the way in which the statute was applied. Thielman has already received an adverse decision concluding that he has no constitutional due process right involved in the mode of restraint used in transporting him because he has no liberty interest in an individualized determination as to whether he poses a safety or escape risk. Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002).

       2001 Wis. Act. 16 § 1993r, effective Sept. 1, 2001, amended the final sentence of Wis. Stat. § 51.61(l)(i) by adding the italicized words. Because this version of § 51.61(l)(i) is now operative and because only the order permanently enjoining DHFS from using full restraints on ch. 980 patients in the future has been appealed, we will address only the current version of the statute.

       The contention of the dissent is that we have "ignored" the restraints permitted when a patient has a recent history of violence. We have not. Rather, we have relied on the additional authority granted DHFS for security reasons when transporting ch. 980 patients.

       Thielman contends that DHFS promulgated Policy No. 3-1-8-P dealing with the use of restraints during transports of patients and that policy requires the use of the least restrictive means and documentation in the patient's treatment record of the reasons restraints were used. He contends DHFS is not following that policy. DHFS does not respond to this argument. However, we note Policy 3-1-8-P is dated 5/7/96, long before Wis. Stat. § 51.61(l)(i) was amended in regard to the transport of ch. 980 patients, and that DHFS currently employs a transportation policy that states the staffs primary responsibility during transport is public safety.

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

       The majority also finds Wis. Stat. § 51.61(l)(e) inapplicable, because it does not specifically apply to restraints during transportation. While the observation that § 51.61(l)(e) does not specifically apply to transport is of course correct, the majority does not recognize that courts are to consider all parts of a statute when harmonizing ambiguous parts of the statute. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893. Section 51.61(l)(e) is useful in determining the overall intent and scope of the statute. It is evidence that the legislature disfavored the use of restraints except when no other choice existed. In that respect, § 51.61(l)(e) applies to the issue we decide today. It gives ch. 980 patients the right to the least restrictive conditions necessary for their treatment.

       An alternative test leads to the same result. A statute is ambiguous if both parties argue that a "plain reading" of statutes supports their respective positions. Appointment of Interpreter in State v. Le, 184 Wis. 2d 860, 867, 517 N.W.2d 144 (1994). However, assigning different interpretations to the scope and meaning of a statutory exception does not lead to the same result. State ex rel. Girouard v. Jackson Circuit Ct., 155 Wis. 2d 148, 154-55, 454 N.W.2d 792 (1990).

       The administrative interpretation of a statute is of great assistance in interpreting the meaning of a statute. Indeed, we are to defer to an administrative agency's interpretation of a statute unless it is unreasonable. Theuer v. LIRC, 2001 WI 26, ¶ 14, 242 Wis. 2d 29, 624 N.W.2d 110.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Bruce Nash, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Bruce Nash, Respondent.
    Supreme Court

      No. 03-0273-D.

      Decided April 22, 2003.

    2003 WI 25
    (Also reported in 659 N.W.2d 874.)
   IT IS ORDERED that the license of Bruce Nash to practice law in the state of Wisconsin be suspended for one year, effective the date of this order;

IT IS FURTHER ORDERED that this suspension does not affect the existing suspensions for failure to comply with CLE requirements which would also have to be satisfied in order for Attorney Nash's license to practice law in Wisconsin to be reinstated;

IT IS FURTHER ORDERED that Attorney Nash shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.


text:
    Gerald F. Weiland and Carol Ann Weiland, Plaintiffs-Respondents, v. Daniel G. Paulin and Joan E. Paulin, Defendants-Appellants.
    Supreme Court

      No. 02-0826.

      Decided April 24, 2003.

    2003 WI 27
    (Also reported in 659 N.W.2d 875.)
   IT IS ORDERED the petition for review is granted and that part of the court of appeals' decision declaring the appeal to he frivolous is summarily reversed and the cause is remanded to the court of appeals with directions that: (1) the court of appeals shall give Attorney Kroening an opportunity to be heard regarding the frivolous appeal determination, and (2) the court of appeals shall then make specific findings to support any conclusion that the appeal is frivolous under Wis. Stat. § (Rule) 809.25(3)(c)2.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Cara A. Erickson, Defendant-Appellant.

    Court of Appeals

      No. 01-3367-CR.

      Submitted on briefs August 9, 2002.
    Decided January 16, 2003.

    2003 WI App 43
    (Also reported in 659 N.W.2d 407.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen J. Eisenberg of Eisenberg Law Offices, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.

       Petition to review denied 4-22-03.

   LUNDSTEN, J.

¶ 1. Cara Erickson appeals judgments of the circuit court convicting her of homicide by intoxicated use of a vehicle contrary to Wis. Stat. § 940.09(1)(a) (1997-98), and causing injury by intoxicated operation of a vehicle contrary to Wis. Stat. § 346.63(2)(a) 1. Erickson argues that her suppression motion should have been granted because police obtained a blood sample from her in violation of the requirements set forth in State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993). In particular, Erickson complains that the blood draw was invalid because (1) it was drawn without consent and without a warrant before she was arrested, and (2) police did not have probable cause to arrest her for a drunk-driving violation or crime. We affirm the circuit court.

Background

¶ 2. On August 27, 2000, at approximately 5:40 a.m., Erickson crashed her pickup truck into a vehicle, setting the vehicle on fire. One occupant of the struck vehicle was killed and another was seriously injured. Erickson was questioned at the scene and was transported to the hospital for treatment of minor injuries she sustained. After continuing his investigation at the hospital, an officer directed hospital personnel to draw a blood sample from Erickson. At the time of the blood draw, Erickson had not been placed under arrest and the officer had not acquired a warrant. Erickson's blood-alcohol content was 0.103% by weight. After the blood draw, Erickson was arrested and charged with several crimes arising out of the collision.

¶ 3. Erickson moved to suppress evidence obtained from the blood draw, and the circuit court denied the motion. Erickson pled no contest to and was convicted of homicide by intoxicated use of a vehicle and causing injury to another by intoxicated operation of a vehicle.

Standard of Review

¶ 4. The material facts are not disputed. When material facts are undisputed, the constitutional reasonableness of a search presents a question of law, which we review without deference to the circuit court. State v. Swanson, 164 Wis. 2d 437, 449-50, 475 N.W.2d 148 (1991).

Discussion

Whether Probable Cause to Search is a Substitute for a Formal Arrest under Bohling

¶ 5. After the truck Erickson was driving struck a vehicle, killing one occupant and injuring another, the investigating police officer directed medical personnel to take a blood sample from Erickson without a warrant and without Erickson's consent. The parties agree that evidence obtained from the blood sample is admissible if the four prongs of Bohling are satisfied. In Bohling, the supreme court held that evidence resulting from a warrantless nonconsensual blood draw, taken at the direction of a law enforcement officer, is admissible under the following circumstances:

(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Bohling, 173 Wis. 2d at 534 (footnote omitted).

¶ 6. The first dispute in this case centers on the first prong above and on a footnote in Bohling qualifying that prong. The footnote relies on our decision in State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979), and reads: "Probable cause to arrest substitutes for the predicate act of lawful arrest." Bohling, 173 Wis. 2d at 534 n.1. Erickson contends this footnote is both dicta and erroneous. She asserts this footnote is erroneous because Bentley had already been overruled by the supreme court in Swanson by the time Bohling was decided. We disagree and begin our discussion with Bentley.

¶ 7. In Bentley, we addressed whether police may direct a warrantless nonconsensual blood draw based upon both probable cause to search and exigent circumstances. In that case, police had probable cause to believe that Bentley was driving while intoxicated, but Bentley was not arrested prior to the time blood was drawn. Bentley, 92 Wis. 2d at 863-64. As Erickson does here, Bentley argued that an arrest is required prior to a warrantless nonconsensual blood draw and that probable cause to arrest for drunk driving is no substitute for an actual drunk-driving arrest. Id. at 863. We disagreed, stating: "Logic dictates that where there is probable cause for [a drunk-driving] arrest, one need not perform the formalistic rituals of arrest in order to obtain a blood sample and thus preserve possible evidence of a crime." Id. at 864. More importantly, our subsequent analysis in Bentley made clear that the absence of an arrest was not cause for suppression because the seizure of Bentley's blood was supported by both probable cause to find evidence of drunk driving and exigent circumstances.

¶ 8. Typically, probable cause to believe blood contains evidence of & drunk-driving violation and probable cause to arrest for a drunk-driving violation go hand in hand. However, police sometimes come into possession of information supporting an arrest long after the intoxicated operation and at a time when there is no longer reason to think the driver's blood contains alcohol. In Bentley, we sometimes talked in terms of probable cause to arrest, apparently agreeing with the State's contention that "where there is probable cause for arrest, there is probable cause for a search." Id. at 863. But the actual analysis in Bentley more aptly discussed whether, at the time of the blood draw, there was probable cause to believe Bentley's blood would furnish evidence of a crime.

¶ 9. We explained in Bentley that the blood evidence was admissible because exigent circumstances existed (i.e., blood rapidly metabolizing alcohol), the blood draw was performed in a reasonable manner (i.e., drawn in a hospital environment by a hospital technician), and police had "probable cause to conclude that a blood test might furnish evidence of a crime." Id. at 864-65. Therefore, properly read, Bentley is a probable-cause-to-search case applying the well-established exigency exception to the warrant requirement. See generally State v. Donovan, 91 Wis. 2d 401, 408, 283 N.W.2d 431 (Ct. App. 1979) ("Reasonableness as the ultimate standard of lawfulness of a warrantless search is fulfilled only if its two components are met: (1) probable cause to search and (2) exigent circumstances that excuse application for a judicially authorized search warrant.").

¶ 10. Erickson's contention that Bentley was overruled by the state supreme court in Swanson misapprehends the distinct issues in the two cases. Swanson is a search-incident-to-arrest case; it does not speak to searches based on probable cause that evidence will be found. The defendant in Swanson was detained based on suspicion of drunk driving. Swanson, 164 Wis. 2d at 442. During this detention, and in the absence of a formal arrest, an officer searched Swanson and discovered a bag of marijuana. Id. The State attempted to justify the search of Swanson's person based on case law permitting searches of arrested persons incident to formal arrest. Id. at 450. The State argued in Swanson that a formal arrest should not be required if a lawful arrest could have been made. Id. at 451. The Swanson court rejected the State's argument, stating: "The actual making of a formal arrest, as opposed to the mere existence of grounds for doing so, is considered to be a significant event. The lawful arrest is not a mere formality, and without an arrest there is no justification for a full search incident to an arrest." Id. Swanson does not address the situation before this court in Bentley, the admissibility of evidence resulting from a search based on probable cause that evidence will be found and exigent circumstances. Thus, Swanson did not overrule Bentley.

¶ 11. Our conclusion that Bentley was not overruled by Swanson does not fully dispose of Erickson's assertion that, under Bohling, a formal arrest is required prior to a warrantless nonconsensual blood draw. Accordingly, we turn our attention to Bohling and Bentley.

¶ 12. Bohling addressed one scenario in which police officers may draw blood from a suspected drunk driver without consent and without a warrant. Among other requirements, the court held that such a draw is permissible "from a person lawfully arrested for a drunk-driving related violation or crime." Bohling, 173 Wis. 2d at 534. By way of footnote, the Bohling court added the following caveat to this requirement:

Probable cause to arrest substitutes for the predicate act of lawful arrest. State v. Bentley, 92 Wis. 2d 860, 863-64, 286 N.W.2d 153 (Ct. App. 1979).

Id. at 534 n.1. This footnote seemingly says that, for purposes of a warrantless nonconsensual blood draw, probable cause to arrest for a drunk-driving-related violation or crime is a substitute for an actual arrest. However, we need not rely on this footnote to affirm the circuit court's decision to permit evidence resulting from the blood draw. Regardless of the Bentley footnote in Bohling, we hold that, in the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling. Furthermore, this same probable cause necessarily satisfies the second prong of Bohling, that "there is a clear indication that the blood draw will produce evidence of intoxication," Bohling, 173 Wis. 2d at 534, because the probable cause standard used in Bentley is more demanding than the "clear indication" standard. See State v. Seibel, 163 Wis. 2d 164, 173, 471 N.W.2d 226 (1991) ("clear indication" is the equivalent of "reasonable suspicion").

¶ 13. Having resolved the test to be applied, we now turn to Erickson's argument that the particular facts of this case do not amount to probable cause to believe Erickson's blood contained evidence of drunk driving.

Whether There was Probable Cause to Believe Erickson's Blood Contained Evidence of a Drunk-Driving-Related Offense

¶ 14. Erickson argues that police did not possess probable cause to believe her blood contained evidence of drunk driving. When analyzing probable cause to search, "the proper inquiry is whether evidence of a crime will be found. The quantum of evidence required to establish probable cause to search is a 'fair probability' that contraband or evidence of a crime will be found in a particular place." State v. Hughes, 2000 WI 24, ¶ 21, 233 Wis. 2d 280, 607 N.W.2d 621 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (citations omitted). Whether probable cause for a search exists is determined by analyzing the totality of the circumstances. State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990) (citing Gates, 462 U.S. at 238). "The test is objective: what a reasonable police officer would reasonably believe under the circumstances . . . ." State v. Londo, 2002 WI App 90, ¶ 10, 252 Wis. 2d 731, 643 N.W.2d 869. Probable cause is assessed by looking at practical considerations on which reasonable people, not legal technicians, act. See State v. Pozo, 198 Wis. 2d 705, 711, 544 N.W.2d 228 (Ct. App. 1995). Probable cause does not mean more likely than not. State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971). It is only necessary that the information support a reasonable belief that guilt is more than a possibility. Id.

¶ 15. In this case, the officer knew the following information when he ordered the blood draw. At about 5:40 a.m. on August 27, 2000, less than two hours prior to the blood draw, Erickson crashed her pickup truck into a vehicle with sufficient force to set the vehicle on fire. One occupant in the vehicle was killed and the other was seriously injured. Erickson told the officer she remembered waking up and crashing into the vehicle. Erickson said she was returning home from dropping off a friend after a party. While at the scene, Erickson told the officer that she had drunk one beer around 1:00 a.m., but she later told medical personnel she had had three beers, the last one at 1:00 a.m. In addition, while standing about three to four feet from Erickson at the scene, the officer did not smell an odor of intoxicants. However, three emergency medical technicians who treated Erickson at the scene and transported her to the hospital reported that they smelled a strong odor of alcohol on Erickson.

¶ 16. These facts supply probable cause to believe Erickson's blood contained evidence of drunk driving at the time the officer directed hospital personnel to take a blood sample. Erickson admitted drinking and, at about 5:00 a.m., had just dropped off a friend after a party. Thus, there was reason to believe that Erickson had been at an all-night party where she had been drinking. The fact that Erickson gave two different reports of how much she drank suggests she tried to conceal how much she actually drank. Moreover, the medical technicians smelled a "strong" odor of alcohol on Erickson about five hours after her last reported beer, further suggesting she drank more than she admitted. While the officer did not detect an odor of intoxicants, the medical personnel were in closer proximity. From these facts, it is reasonable to conclude that Erickson dozed off and crashed into the vehicle because she was under the influence of alcohol. While it may also be reasonable to conclude that Erickson simply dozed at the wheel because she was tired, there was at least a "fair probability" that Erickson was intoxicated and that her blood would contain evidence of her intoxication.

By the Court. — Judgments affirmed.

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

       This Bentley "probable cause to arrest" alternative to a formal arrest was reiterated in State v. Thorstad, 2000 WI App 199, ¶ 7 n.4, 238 Wis. 2d 666, 618 N.W.2d 240.

       We do not address the State's arguments that the arrest was substantially contemporaneous with the blood draw and that the odor of alcohol alone supplied probable cause under the absolute sobriety law which, the State contends, is a "drunk-driving related violation or crime" under State v. Bohling, 173 Wis. 2d 529, 534, 494 N.W.2d 399 (1993).

       Erickson contends that the State failed to satisfy the last Bohling prong: "the arrestee presents no reasonable objection to the blood draw." Bohling, 173 Wis. 2d at 534. Erickson, however, does not contend that she made a reasonable objection. Rather, she complains she was not given a meaningful opportunity to provide a reasonable objection to the blood draw. Erickson does not develop this argument and points to no authority requiring a "meaningful opportunity" to object. We decline to address the argument. See Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (appellate court need not address "insufficiently developed" argument).


author: WEDEMEYER, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bernell L. Ross, Sr., Defendant-Appellant.

    Court of Appeals

      No. 02-0121-CR.

      Submitted on briefs November 5, 2002.

      Decided January 22, 2003.

    2003 WI App 27
    (Also reported in 659 N.W.2d 122.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew Mishlove of Law Offices of Andrew Mishlove, Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Edwin J. Hughes, assistant attorney general.
    Before Wedemeyer, RJ., Schudson and Curley, JJ.

       Petition to review denied 6-12-03.

   WEDEMEYER, P.J.

¶ 1. Bernell L. Ross, Sr. appeals from a judgment of conviction after a jury found him guilty of violating Wisconsin's Organized Crime Control Act (WOCCA), making a fraudulent offer and sale of securities, selling unregistered securities, making misleading filings in regard to securities, and violating the May 2, 1997 securities law order by offering and selling securities after that date, all as party to a crime, contrary to Wis. Stat. §§ 946.82-83, 551.41(2), 551.21(1), 551.54, 551.58(1) and 939.05 (1997-98). He also challenges the trial court's restitution award.

¶ 2. Ross contends that he is entitled to a new trial because the trial court erred when it: (1) failed to accept a Batson challenge to the State's exercise of its peremptory strikes; (2) declined to give the jury an instruction relative to his "advice of counsel" theory of defense; (3) erroneously exercised its discretion with respect to three evidentiary rulings; and (4) denied a motion for a mistrial after it chastised him for his courtroom deportment. He also claims the trial court erred when it ordered him to pay restitution of no more that $587,100 to the victims of his crimes. For the reasons stated hereafter, we affirm the judgment of conviction, the restitution order, and the trial court's rulings in every respect.

BACKGROUND

• ¶ 3. Ross had a dream, a dream of some magnitude. Unfortunately, it died aborning and, in the aftermath, hundreds of investors lost thousands of dollars. In 1994, Ross conceived of a way for African-American entrepreneurs to gain entry into the telecommunications world. After discussing the concept with many of his acquaintances, Ross, together with three Milwaukee resident-associates, Ura Dozier, Michael Ewing, and Kenneth Mosely, agreed to form a business enterprise called Intra Kommunity Kommunications of Wisconsin (IKKW). It was intended to be incorporated with each person owning 25% of the stock. Articles of Incorporation, however, were never filed with the State of Wisconsin. In March 1996, after the enactment of the Federal Communications Act of 1996, IKKW applied to the Wisconsin Public Service Commission (PSC) for certification as an alternate telecommunication utility. The PSC granted the certification to IKKW in July 1996. It authorized IKKW to offer local exchange telephone service in competition with Ameritech and obligated Ameritech to sell services to IKKW on a wholesale basis, which IKKW could then resell to its customers.

¶ 4. Meanwhile, in March 1996, Ross, who was then living in Baltimore, Maryland, incorporated a company there called Kommunity Kommunications of America, Inc. The other three investors from Wisconsin were not involved in the Maryland corporation. In July 1996, he changed the name of this corporation to Intra Community Communications, Inc. (ICCI).

¶ 5. On March 28, 1997, Ross incorporated a company called Intra Community Communications of Wisconsin, Inc. (ICCW) in Wisconsin. The initial directors of the company were Ross and Karl Nichols. On March 20, 1997, Ross requested that the PSC transfer the IKKW certification to ICCW This request was without the knowledge of the other three partners of IKKW In his application for transfer of certification, Ross represented to the PSC that "the name 'Intra Kommunity Kommunications of Wisconsin, Inc.' ('IKK') has been changed to 'Intra Community Communications of Wisconsin, Inc.' ('ICC')... ICC is the identical corporation to IKK having identical officers and Board of Directors ... ." This representation was not true. ICCW had not been incorporated when the application for transfer was made. The three other original partners of IKKW still believed they had an equal ownership share in ICCW. The PSC granted the transfer of certification to ICCW.

¶ 6. Under Ross's business plan, the Maryland corporation, ICCI, would be the parent corporation for a number of separate "ICC" corporations to be established in different states to provide telephone service in those states, thereby creating a large telecommunications network.

¶ 7. During February 1997, Ross commenced soliciting investments in ICCI from Wisconsin residents at the price of $1 per share. On two separate occasions, when Ross was soliciting stock purchases, he was advised by Fred Reed, a securities examiner investigator for the Wisconsin Department of Financial Institutions (DFI), to be sure the securities were registered before they were sold. Ross advised Reed that the securities had been registered under the name of IKK. This proved not to. be true. Reed called Ross at his corporate office in Baltimore to inform him that no registration existed. Ross insisted that the securities were registered. Reed then sent the appropriate forms to Ross's attorney, Nathan Gundy III, for registration of the securities. Reed informed Gundy that ICCI could not sell securities in Wisconsin unless they were registered or otherwise exempt from registration. Reed further informed him that it did not appear that the securities would be exempt. Ross instructed his attorney to try to obtain an exemption from registration because he did not want to pay the projected attorney's fees for securing registration. ICCI filed a registration application on April 2, 1997. DFI deemed the submission inadequate.

¶ 8. In the meantime, Ross continued to solicit investments in ICCI from potential Milwaukee investors. As part of his efforts, he represented that the securities were registered, and that as of April 25,1997, he would stop selling the stock at $1 per share. After that date, shares would only be available at $10 per share.

¶ 9. On May 2,1997, in response to these actions, DFI issued a formal order of "Prohibition and Revocation" (a stop order), prohibiting ICCI from making any further offers or sales of securities. Orí May 5, Ross's attorney responded to the stop order, stating that ICCI would not solicit or sell any securities in Wisconsin until the stock was registered. Gundy further informed DFI that ICCI was attempting to provide rescission notices to its current shareholders.

¶ 10. Notwithstanding the stop order, Ross began negotiating with his recently hired assistant, Sharon Cooper, for the sale of 50.1% of the shares of ICCI. An agreement for the sale was consummated on November 19,1997, whereby Cooper paid Ross $55,000 on November 25, 1997.

¶ 11. ICCI experienced start-up and operational difficulties and became delinquent in its payment to Ameritech for the cost of telephone services. In September 1997, ICCI filed for protection under Chapter 11 of the Bankruptcy Code. To ensure the continuation of telephone services, Ameritech requested the payment of $471,000. When ICCI was unable to meet this requirement, the bankruptcy court allowed Ameritech to disconnect ICCI's customers as of October 14, 1997. This event spelled the end of Ross's wonderful dream.

¶ 12. In sum, $504,000 was invested by almost 1000 shareholders, most of whom were from Wisconsin. The venture was a total loss. As a result, Ross was charged with the crimes noted earlier in this opinion. The case was tried to a jury and he was convicted. He now appeals.

ANALYSIS

¶ 13. Ross raises seven issues of claimed trial court error. We shall address each in the order that we deem appropriate.

A. Batson Challenge.

¶ 14. Ross first claims he is entitled to a new trial because the State exercised its peremptory strikes in a racially discriminatory manner, contrary to Batson v. Kentucky, 476 U.S. 79 (1986).

¶ 15. In a challenge to a Batson ruling, we review the trial court's determination as to whether the State had a discriminatory intent as a finding of historical fact, which we shall not disturb unless clearly erroneous. State v. Gregory, 2001 WI App 107, ¶ 5, 244 Wis. 2d 65, 630 N.W.2d 711. The methodology we employ is a three-step process that may involve shifting burdens, depending upon the evidence presented. In the first step, the accused must make a prima facie showing that the State acted with discriminatory intent by establishing that it exercised peremptory strikes on the basis of race, gender, or any other prohibited category. State v. Jagodinsky, 209 Wis. 2d 577, 580, 563 N.W.2d 188 (Ct. App. 1997). The trial court may consider all relevant factors in determining whether the accused made a prima facie case. State v. Walker, 154 Wis. 2d 158, 173-74, 453 N.W.2d 127 (1990).

¶ 16. If the accused successfully crosses this threshold, the burden shifts to the State to set forth grounds to refute the inference of discriminatory intent. Jagodinsky, 209 Wis. 2d at 580. This necessitates the State articulating a neutral explanation as it relates to the particular case being tried. Gregory, 2001 WI App 107 at ¶ 8. If the State accomplishes this task, the process moves to the third stage, where the trial court must "weigh the credibility of the testimony and determine whether purposeful discrimination has been established." Id. In this exercise, the accused may show that the explanation of the State is sheer pretext for the forbidden category discrimination. Walker, 154 Wis. 2d at 176 n.11.

¶ 17. Because of the complexities of this case, the trial court anticipated that it would take two weeks to try, and informed the prospective jurors of this expectation. Several jurors claimed that the anticipated length of the trial would create hardships in their lives. For this reason, the trial court, prior to the exercise of any peremptory challenges, conferred with counsel on the record as to the hardship issue. Seventeen of the prospective jurors claimed hardship. The State was willing to excuse, for cause, all of the potential jurors who claimed a hardship. Ross, however, was not so willing. As the record reflects, the trial court then examined the nature of each hardship claim. If either counsel objected to striking a juror for cause based upon hardship, the court allowed the juror to remain on the panel to be subject to peremptory strikes. After this procedure, seven of the seventeen who claimed hardship remained on the panel, and were subject to the peremptory process. The trial court decided to have three alternates, so that the final panel consisted of fifteen members. Each party had seven peremptory strikes. After the peremptory strikes were taken, four African-Americans remained on the panel. The State used its challenges to strike three African-Americans, three Caucasians and one Hispanic-American. The defense used all of its seven strikes against Caucasians.

¶ 18. Ross challenges the State's peremptory strikes of four jurors: three African-Americans Derek Chappell, Edna Hale and Bertha Nichols, and one HispanicLuis Hernandez. Both Chappell, a male, and Hale, a female, claimed hardship, but Ross was unwilling to excuse them for cause. The State stated it struck these individuals based on their hardship claims. Likewise, the State explained it had struck a Caucasian male for the same reason. The State explained that it struck Nichols because she was not attentive during the selection process and actually "dozed off during the voir dire. The State struck Hernandez because "it wasn't clear that he would have been as good a juror as some of the others that were available and left on the jury to us." The State also explained that it was "getting . . . friendlier faces, more open body language, more attention and more responsive visual impressions from those other jurors."

¶ 19. The trial court concluded that Ross had failed to make a prima facie showing of an impermissible reliance on race. The trial court declared:

And so what we have is four blacks being left on the panel after [the prosecutor's] strikes. She uses roughly half of her strikes — three strikes for African-Americans and a fourth one for a Hispanic person — and she uses three others of her strikes for white people, and I would note that she struck a white person with a hardship as she did strike two black people with a hardship [sic]. And I would additionally note that in terms of all of these findings in terms of whether the defense has made a prima facie showing of impermissible reliance on race, it is noteworthy in this case that the victim[s] in this case w[ere] black, and the defendant in this case is black, and I think there's great merit to [the prosecutor's] argument that it would be illogical — in fact, ludicrous — for the State to have wanted to exclude people who were black from the jury. There is no strategy, no rationale, that would make any sense for the State to do that if, in fact, the whole point of voir dire and jury selection is to get people on the panel who are open-minded, and considering that the State was relying on the testimony of almost exclusively black people, it would [be] ludicrous for [the prosecutor] to want to strike black people, and I would note that, as I've indicated, she didn't strike only black people, and I do not find, based on this record, that the defense has made a prima facie showing of any impermissible basis for the State's strikes.

¶ 20. Thus, the trial court made findings, based upon the overall record, which reasonably support the conclusion that the strikes were not made in any forbidden discriminatory way. The findings are not clearly erroneous and the conclusion that a prima facie case was not shown has ample support in the record.

¶ 21. The trial court did not complete its findings when it reached the conclusion that Ross had not demonstrated a prima facie case. Rather, it further examined the specific reasons proffered by the State to form the basis for its strikes of the four venire-persons, and found that they were clearly race-neutral. From our review of the record, we agree there was absolutely no taint of an impermissible reliance on race or age. The trial court's review of the record was painstakingly thorough and circumspect. It did not err and, as a result, Ross's first claim of error fails.

B. Advice of Counsel Instruction.

¶ 22. Ross claims that the trial court erred when it denied his request to submit an "advice of counsel" instruction to the jury. Ross requested an instruction directing the jury to find him not guilty on all six counts if it found that he was following the advice of his attorney. Ross asserts that his reliance on the advice of his counsel negates the element of willfulness contained in all of the charges. The trial court concluded that the evidence was insufficient to allow the jury to determine that the advice-of-counsel test had been satisfied.

¶ 23. Granting the request of an accused for a specific instruction is required where there is any foundation in the evidence for the giving of such instruction, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility. In determining whether the requested instruction is required, we must not weigh the evidence or look to the totality of the evidence; rather, we must view the evidence in the light most favorable to the accused. See State v. Giminski, 2001 WI App 211, ¶ 8, 247 Wis. 2d 750, 634 N.W.2d 604. Whether the evidence, viewed in the light most favorable to Ross, supplies a sufficient basis to include the proposed instruction is a question of law, and will be reviewed independently. Id. at ¶ 11.

¶ 24. To warrant an advice-of-counsel theory of defense instruction, both parties agree that Ross was required to show that:

(1) before taking action, (2) he in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts which the defendant knew, and (5) then acted strictly in accordance with the advice of his attorney who had been given a full report.

United States v. Cheek, 3 F.3d 1057, 1061 (7th Cir. 1993) (citation omitted). For two reasons, we reject this claim of error.

¶ 25. The trial court correctly concluded that the evidence was insufficient to allow the jury to determine that the Cheek test had been met. Thus, it did not have to apply the' Cheek test. Ross never established the "willfulness" element in Cheek, which can be distinguished from the "willfulness" element in Wis. Stat. § 551.58 and WOCCA, because the two terms require different levels of proof. Upon examination, any commonality between the two elements disappears.

¶ 26. In Cheek, the "willfulness" element in a prosecution for willfully failing to file federal tax returns was defined as the " 'voluntary and intentional violation of a known legal duty or purposeful omission to do what the law requires.'" Cheek, 3 F.3d at 1062 (citation omitted).

¶ 27. Here, under neither the securities fraud statutes nor WOCCA is the State required to prove that the accused acted with intent to defraud or with knowledge that the law was violated. All that the State is required to prove is that the accused acted intentionally in the sense that he or she was aware of the act that he or she was performing. See generally State v. Mueller, 201 Wis. 2d 121, 549 N.W.2d 455 (Ct. App. 1996). Because Ross's specific state of mind was not relevant to any of the elements of the crimes with which he had been charged, the advice-of-counsel theory of defense instruction would not have been applicable.

¶ 28. Second, the trial court concluded that the evidence did not warrant the instruction. The Cheek five-part test is couched in conjunctive, not disjunctive, terms. Ross had to present evidence, which when viewed in a light most favorable to him, demonstrated that he fulfilled all five requirements of the test. He claims that "[t]he record is replete with testimony upon which a jury could have found, if properly instructed, that [he] relied on the advice of counsel and, hence, did not willfully violate the law." We are not convinced.

¶ 29. In denying the request to submit the advice-of-counsel instruction, the trial court listed several reasons. For the purposes of our analysis, we shall examine these reasons and, where appropriate, amplify the basis for these reasons from the record.

¶ 30. First, there is no. evidence in the record that during the months of February, March, and April 1997, Ross sought the advice of his attorney, Gundy, as to his intended solicitation of stock purchase orders in Wisconsin. The record reveals that well-attended solicitation meetings were conducted on February 21-22 and April 19, 1997. Yet, there is no indication that Ross asked Gundy how to properly conduct these solicitation events.

¶ 31. Second, for the purposes of either seeking an exemption from registration or obtaining registration approval, there is no evidence that Ross ever fully revealed to Gundy the nature of his corporate and/or partnership interests in this telephone enterprise and what entity actually held authority to engage in the telecommunications business in Wisconsin.

¶ 32. Third, late in February 1997, Gundy was informed by DFI of what was required of ICCI to obtain proper registration of the securities it intended to sell to the public. There is no claim that Ross did not also know of these requirements. Yet, he ignored the advice of both DFI and Gundy and continued to solicit individual investments. Even after the April 19 solicitation meeting which precipitated a May 2 sales stop order, Ross continued to solicit and accept stock subscription agreements while, at the same time, Gundy attempted to implement the stop order. The egregiousness of the stop-order violations reached its limit when in a November 19th agreement, Ross consented to sell 50.1% of his shares in ICCI to Sharon Cooper who months earlier had become his assistant.

¶ 33. From this review, we conclude that Ross failed to meet the five-part Cheek test in at least two respects and, therefore, the trial court did not err in rejecting the proposed advice-of-counsel theory of defense instruction.

C. Evidentiary Rulings.

¶ 34. Ross next claims that the trial court erroneously exercised its discretion in making three eviden-tiary rulings: (1) admitting evidence of investor losses; (2) denying the admission of documentary evidence supporting the assertion that market forces caused the collapse of ICC; and (3) excluding evidence as to why Gundy agreed to a plea bargain.

¶ 35. The admission of evidence is within the discretion of the trial court. See State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). We review a trial court's ruling on the admissibility of evidence for an erroneous exercise of discretion. Id. To sustain a discretionary ruling, we need only find that the trial court examined the relevant facts, applied a proper standard of law and, using a rational process, reached a reasonable conclusion. Franz v. Brennan, 150 Wis. 2d 1, 6, 440 N.W.2d 562 (1989)." 'In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case.'" State v. Alsteen, 108 Wis. 2d 723, 729-30, 324 N.W.2d 426 (1982) (citation omitted). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues. Wis. Stat. § 904.03. With these standards in mind, we now examine each of the eviden-tiary challenges.

¶ 36. In a pretrial motion, Ross moved to exclude any evidence of losses sustained by investors in the ICCI enterprise — that any investor was harmed emotionally or financially by the failed investment, that ICCI did not make promised refunds, and that ICCI and ICCW sought protection in bankruptcy. The trial court denied the motion, but did allow Ross to offer evidence that the failure of the company, and hence the cause of the losses that the investors sustained, was attributable to the unreasonable demands asserted by Ameritech or other causes unrelated to Ross's misrepresentations or other misconduct. There are two sound reasons why the trial court did not err in its ruling.

¶ 37. First, the State charged Ross with a violation of WOCCA. To sustain its burden of proof, the State had to show that Ross profited from engaging in a pattern of racketeering activity. See Wis. Stat. § 946.83 ("No person who has received any proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity may use or invest. .. any part of the proceeds . . . derived from the investment." Wisconsin Stat. § 946.82(3) defines "pattern of racketeering activity" as engaging in at least three incidents of racketeering activity that produce the same results. Six investors— William Anderson, Jeffrey Lewis, Frederick Kinlow, Antoinette Kinlow, Gene Lacy, and Pamela Lewis — testified as to losses they sustained as a result of the securities fraud, which were the incidents of racketeering activity. There is a logical connection between the security fraud and the losses. Thus, the testimony of the losses suffered by the investors was directly relevant to the proof of the WOCCA charge.

¶ 38. Second, when the DFI learned that ICCI had improperly sold securities to Wisconsin investors and was not exempt from registration, it required that ICCI offer to rescind all prior sales and refund the proceeds of those sales to any investors who desired refunds, before ICCI could qualify for registration. Therefore, testimony relating to the rescission efforts was relevant and admissible.

¶ 39. The same six investors noted above testified that they received written offers of rescission and refund. These investors testified that they each replied to the offers, but did not receive a refund. This testimony related to whether there was a violation of Chapter 551 — Wisconsin's Uniform Securities Law. The testimony demonstrated that orders of the DFI were not followed. Thus, this testimony was relevant.

¶ 40. Next, Ross claims trial court error in denying admission of two letters to establish his defense that market forces, particularly what he alleged to have been unfair business practices by Ameritech, caused the downfall of ICCI. Specifically, the letters detailed ICCI's complaints about Ameritech's unreasonable financial demands, unreasonable delays in approving service to customers, and lack of cooperation in billing procedures. The two letters were written by Gundy. One letter was addressed to the chairman of the Federal Communications Commission, the other to the Telecommunications Subcommittee of the United States Senate Commerce Committee.

¶ 41. The trial court ruled that ICCI would be able to introduce evidence that its business failure was caused by unfair actions by Ameritech. In fact, Ross testified about the practices engaged in by Ameritech, which were the subject matter of the letters. Nevertheless, the trial court refused to admit into evidence the letters on the basis that they would "sidetrack the jury."

¶ 42. The expressed basis for the trial court's ruling notwithstanding, Ross suffered no harm. He was able to testify about the substance of the letters and argue about the effect that Ameritech's actions had in the demise of ICCI. Ross was not denied the opportunity of presenting his theory of defense, nor was the jury denied any information to support his theory. The trial court did not erroneously exercise its discretion.

¶ 43. Lastly, Ross contends the trial court erred by improperly limiting the cross-examination of his former attorney, Gundy. The extent and scope of cross-examination allowed for impeachment purposes is a matter within the sound discretion of the trial court. State v. McCall, 202 Wis. 2d 29, 35, 549 N.W.2d 418 (1996). We shall reverse a trial court's determination to limit, or prohibit a certain area of cross-examination attempting to show bias only if the trial court's determination represents an erroneous exercise of discretion that is prejudicial. State v. Lindh, 161 Wis. 2d 324, 348-49, 468 N.W.2d 168 (1991). No erroneous exercise of discretion will be found if a reasonable basis exists for the trial court's determination. State v. Oberlander, 149 Wis. 2d 132, 141, 438 N.W.2d 580 (1989).

¶ 44. The State charged Gundy as an accomplice to Ross's criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross. Ross argues that he should have been allowed to make inquiry about Gundy's release from custody as a possible motive for false testimony. If that were the case, indeed Ross's counsel would have been entitled to question Gundy about his release from custody. The error of this contention, however, as pointed out by the trial court, is that Gundy had secured his release before a plea agreement had been reached.

¶ 45. Thus, a reasonable basis existed to limit the scope of cross-examination. Furthermore, Ross was able to cross-examine Gundy about the benefits of his plea bargain — namely, that as a result of his agreement to testify, Gundy's potential incarceration had been reduced from thirty-five years to ten years, and that if convicted, the State would recommend straight probation without any jail time. From this review, we conclude that a reasonable basis existed for the trial court to limit the scope of factors that may have motivated Gundy's decision to testify against Ross.

D. Claim of Mistrial.

¶ 46. Lastly, Ross claims the trial court erred in denying his motion for a mistrial after the court admonished him about his demeanor and style of testimony.

¶ 47. The decision whether to grant a motion for a mistrial lies within the sound discretion of the trial court. Haskins v. State, 97 Wis. 2d 408, 419, 294 N.W.2d 25 (1980). The trial court must determine, in light of the whole proceeding, whether the claimed error was sufficiently prejudicial to warrant a new trial. State v. Grady, 93 Wis. 2d 1,13, 286 N.W.2d 607 (Ct. App. 1979). The denial of a motion for mistrial will be reversed only on a clear showing of an erroneous use of discretion by the trial court. Johnson v. State, 75 Wis. 2d 344, 365, 249 N.W.2d 593 (1977).

¶ 48. Wisconsin Stat. § 906.11(1) requires: "[t]he judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence .. .." This authority, however, is not without limitation. "While the court cannot function as a partisan, it may take necessary steps to aid in the discovery of the truth." State v. Nutley, 24 Wis. 2d 527, 562, 129 N.W.2d 155 (1964), overruled on other grounds, State v. Stevens, 26 Wis. 2d 451, 463-64, 132 N.W.2d 502 (1965).

¶ 49. During the presentation of the State's case, the trial court expressed its dissatisfaction with Ross's demeanor as he listened to the testimony of the State's witnesses. The incident, however, which gave rise to this claim of error occurred while Ross was testifying on direct examination.

[DEFENSE COUNSEL:]
Q: All right. Did you eventually authorize lawyers acting on your behalf to go to court and file litigation against Ameritech in the summer of 1997?
[MR. ROSS:]
A: How many times do I have to answer that question?
Q: Probably not many.
THE COURT: Mr. Ross, I don't appreciate your sarcasm, your flippancy. This is a court of law. This is supposed to be question and answer. This is not the pulpit. This is not a meeting. This is not a speech. In addition to that, hy rambling on as you have, you make it extremely difficult for the court reporter because you speak so quickly. Now, I would appreciate it if you will show this Court respect and obey these instructions.
[MR. ROSS:] Now, I —
[DEFENSE COUNSEL:]
Q: Did you authorize lawyers on your behalf to file litigation against Ameritech here in Milwaukee County?
THE COURT: That's a yes or no, Mr.
Ross.
[MR. ROSS:] The State had five days to run the case against me. All I'm asking for is a little time.
THE COURT: Mr. Ross, you will follow the rules of law. We are going to take the lunch break now. Talk to your client, Mr. Fitzgerald. We'll resume at two. You have a two-hour lunch break because of the other calendar of this Court at 1:30. Ladies and Gentlemen, be back at two.

Before the trial resumed, Ross apologized to the court and promised to conduct himself with proper decorum. There were no further incidents.

¶ 50. It is this brief exchange that forms the basis for Ross's request for a new trial. He argues that the trial court's comments amounted to impermissible editorializing regarding the factual issues being considered by the jury. He contends that by the disparaging references to "pulpit," "a meeting," and "a speech," the court was in effect commenting on the evidence and Ross's credibility in front of the jury. We are not persuaded.

¶ 51. To suggest that the trial court's admonishing comments reflect in any manner upon Ross's credibility defies a reasonable reading of the recorded exchange. There is not a scintilla of evidence that casts any reflection on the issues germane to the merits of the case. Nor are we able to ascertain any evidence that would form a basis to paint the trial court as an advocate of the State's position. Based upon our review of Ross's testimony, we conclude that the brief admonitory remarks of the trial court, particularly in light of Ross's earlier improper deportment, were well within the proper range of the court's power to take all necessary steps to aid in the discovery of the truth. Thus, a new trial was not warranted.

E. Restitution Order.

¶ 52. Ross claims the trial court erred when it ordered that he pay restitution of no more than $587,100 to the victims of his crimes who submitted requests to the Department of Justice. He argues that the violations charged under Chapter 551 are independent of any loss to the investors. Rather, ICCI's under-capitalized and mismanaged state led to its inevitable financial collapse. He suggests that because there is no causal nexus between the losses to investors and the crimes charged, the trial court erroneously exercised its discretion in ordering restitution. He further contends that part of the restitution ordered represents sales transactions that occurred outside of Wisconsin, over which Wisconsin had no jurisdiction. Therefore, he asks that we reverse the restitution order and remand for a factual determination of which transactions are properly a subject of this litigation. We reject Ross's requests.

¶ 53. We review the propriety of an order for restitution by the erroneous exercise of discretion standard. We shall reverse a trial court's exercise of discretion "only if the [trial] court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts." State v. Canady, 2000 WI App 87, ¶ 6, 234 Wis. 2d 261, 610 N.W.2d 147.

¶ 54. Wisconsin's criminal restitution statute, Wis. Stat. § 973.20, imposes a duty upon the sentencing court to order restitution to the victim of a crime. The statute is to be interpreted " 'broadly and liberally in order to allow victims to recover their losses as a result of a defendant's criminal conduct.'" Canady, 2001 WI App 87 at ¶ 8 (citation omitted). Restitution is the rule and should be ordered whenever warranted. Id. To warrant restitution, "a causal nexus must be established between 'the crime considered at sentencing'. . . and the disputed damage." Id. at ¶ 9 (citation omitted). The "victim must show that the defendant's criminal activity was a 'substantial factor' in causing damage." Id. (citation omitted). The crime "encompass[es] all facts and reasonable inferences concerning the defendant's activity related to the 'crime' for which he has been convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted." State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (Ct. App. 1999) (citation omitted). In considering restitution, the court should take into account the defendant's "entire course of conduct." State v. Rodriguez, 205 Wis. 2d 620, 627, 556 N.W.2d 140 (Ct. App. 1996).

¶ 55. The State charged Ross with violating WOCCA by participating in ICCI through a pattern of racketeering activity. The offenses that formed the basis for the racketeering charge were five acts of security fraud under Chapter 551. It was undisputed that ICCI did not register its securities or obtain an exemption from registration. The jury convicted him of fraud in the offer and sale of securities, filing a false registration document, and violating a stop order by continuing to sell securities under the same circumstances. Thus, the very purposes for which WOCCA and Chapter 551 were enacted, i.e., protection of the investing public were frustrated by Ross's actions. These statutes were enacted to provide, among other things, disclosure of the financial condition and the state of management of the entity seeking to attract investor interest. Had such disclosure been provided through procedures required by the legislature, improvident investment such as occurred here could have been avoided. We agree with the State that the object of concern when considering the appropriateness of restitution ought to be what caused individuals to invest in the ICCI enterprise. There is little doubt that fraud and lack of full disclosure were substantial factors in attracting investors, leading to the losses they suffered.

¶ 56. Ross also argues that the restitution order improperly included victims who purchased ICC securities outside of Wisconsin. Thus, he claims these sales were not subject to Wisconsin law and therefore had no causal nexus to the crimes of which he was convicted. Again, we are not persuaded.

¶ 57. Ross was convicted of a pattern of racketeering involving securities fraud contrary to Wis. Stat. §§551.41(2) and 946.82(2), (3), (4) and 946.83 (WOCCA). This pattern of racketeering, which found its basis in the fraudulent activities occurring in Wisconsin contrary to the securities law, also affected investors in other parts of the country. By claiming at various times that the securities he was selling were registered in Wisconsin (which implied disclosure) when they were not, and then continuing to sell these securities after a stop order had been issued, Ross aided in creating victims in other states. Thus, it is clear that the fraudulent activities perpetrated in Wisconsin were a substantial factor in attracting investors in other states, which provides the proper nexus between the crimes and the losses to out-of-state victims.

¶ 58. For these reasons, Ross's challenges to the order for restitution fail.

By the Court. — Judgment affirmed.

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

        See Batson v. Kentucky, 476 U.S. 79 (1986).

       In his letter to the PSC, Ross used the initials "IKK" instead of "IKKW" and "ICC" instead of "ICCW"

       The record refers to the parent corporation in Maryland as "ICC" and "ICCI." For the purposes of this opinion and to serve consistency, we shall henceforth refer to it as "ICCI."

       Ross makes this argument without proper citation to the record. This court is not required to sift through the record for facts to support Ross's contention. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964). It is his responsibility to provide this court with proper references to the record. See Wis. Stat. § 809.19(l)(e).

       Ross was charged and convicted of violating Wis. Stat. § 551.41, which provides:
      Sales and purchases. It is unlawful for any person, in connection with the offer, sale or purchase of any security in this state, directly or indirectly:
      (2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading[.]