author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Charles A. Wallace a/k/a LaShawn Thomas, Defendant-Appellant.
    Court of Appeals

      No. 00-3524-CR.

      Submitted on briefs October 5,2001.

    Decided February 7, 2002.

    2002 WI App 61
    (Also reported in 642 N.W.2d 549.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Michael R. Klos, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Charles Wallace appeals a judgment convicting him of possession of cocaine with the intent to deliver it. Wallace claims the trial court erred in denying his motion to suppress evidence. He first contends that he was unlawfully detained after the police stopped his vehicle. Second, he contends that he did not voluntarily consent to a strip search and that the search violated Wisconsin's strip search statute. Finally, Wallace contends that, even if he consented to a strip search, the ensuing visual body cavity search exceeded the scope of his consent. We conclude that Wallace was not unlawfully detained and that he voluntarily consented to a strip search. However, because the trial court made no finding regarding whether Wallace consented to a visual body cavity search, we reverse and remand for a factual determination on this issue.

BACKGROUND

¶ 2. While City of Beloit police officers executed a search warrant at a Beloit residence, they observed a car drive past the house. One of the officers had information that the car had left the house prior to the search after its passengers were tipped off that police may be coming. He also had information that the individuals in the car were involved in selling drugs from the residence being searched, and that they "kept [drugs] in their underwear or in their rectal area." The officer instructed another officer to stop the car.

¶ 3. The second officer subsequently stopped the car for displaying unauthorized license plates. Wallace was driving the car. Antoine Williams and two juveniles, who attended a local high school but were truant, were passengers in the car when it was stopped. The officer arrested Wallace for displaying unauthorized plates and Williams for contributing to the truancy of the two minors. After Wallace said that he lived in Illinois, the police informed him that because he was an out-of-state resident he would have to post a cash bond. Officers then transported Wallace and Williams to the Beloit Police Department to post bond.

¶ 4. One of the arresting officers testified at the suppression hearing that, while at the police station booking area, "we indicated our suspicions about their presence and activity at the [address being searched]. We also indicated that we'd like them to consent to a strip search. Both individuals said that they would." Williams was searched first. Prior to the search of Wallace, Williams posted bond for himself and Wallace. Wallace was then taken to a holding cell and searched. An officer testified as follows:

A: I believe we searched his pockets, had him remove his shirt. . . [and] take his pants down. They fell to the floor. He removed his underwear ... partially down. We had him bend over and spread his buttocks apart, and Officer Summers then stated that he had observed some plastic in [Wallace's] rectal area.
Q: ,..[W]hat happened after there was discovery of the plastic?
A: I believe ... we had him . . . remove his underwear and his pants completely... and Officer Summers asked him to bend over further and spread his buttocks apart further, and he did this .... Officer Summers then advised that he had observed a package of what he believed [was] cocaine on the floor, so then he grabbed [Wallace's] wrist area so that he couldn't pick.. . the evidence back up. I then got a pair of rubber gloves and picked up the package of cocaine.

Another officer gave the following account:

A: I asked him if he would spread his butt cheeks, and he placed his hands on his cheeks, and he appeared to be having difficulty spreading his cheeks. I indicated to him that if he was willing to allow us to check his rectal area... he would have to spread his cheeks further than that.
Q: Then what happened?
A: Then he spread his cheeks not as far as I believe he could have, but apart, and I observed a piece of plastic material between his cheeks near his rectal area.

¶ 5. The officers arrested Wallace for possession of cocaine with intent to deliver it. Later the same day, Wallace gave a statement. In it, Wallace said that he had consented to a strip search; that he was not threatened or coerced into consenting to the search; that the cocaine was his; and that he was going to use the money obtained from selling the cocaine to rent a car. When asked whether he knew he did not have to allow the search, Wallace replied, "No."

¶ 6. Wallace moved to suppress the seized evidence and the statement. He asserted that the traffic stop was unlawful and that the officers unlawfully detained him when they required him to post bond instead of releasing him. He also claimed that the subsequent strip search violated both state law and the Fourth Amendment. The circuit court denied his motion. In its written decision, the court concluded that both Wallace's stop and his detention were lawful. The court found that police had information that Wallace was an Illinois resident, and that the Beloit Police Department had a policy which requires out-of-state residents to post cash bond before being released.

¶ 7. The court further concluded that although the strip search did not comply with Wis. Stat. § 968.255 (1999-2000), Wallace had voluntarily consented to the strip search, and that police therefore did not violate his rights under either the statute or the Fourth Amendment. Wallace subsequently pled guilty and now appeals his conviction.

ANALYSIS

¶ 8. A circuit court's ruling on a motion to suppress evidence presents a mixed question of fact and law. We will not reverse the circuit court's factual findings unless they are clearly erroneous. State v. Roberts, 196 Wis. 2d 445, 452, 538 N.W.2d 825 (Ct. App. 1995). However, whether those facts satisfy the constitutional requirement of reasonableness presents a question of law that we review de novo. State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1989).

I.

¶ 9. We first address Wallace's contention that the Beloit police officers unlawfully prolonged his detention to obtain his consent to a strip search. The detention of a person during an investigative stop, even if only temporary and brief, constitutes a "seizure" under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809 (1996). Thus, not only the basis for the stop, but also the duration and scope of the stop, must be reasonable under the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 500 (1983).

¶ 10. Wallace concedes that the police lawfully stopped his car for displaying unauthorized license plates. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). He also concedes that he was lawfully taken into custody pursuant to Beloit Police Department policy, which requires out-of-state residents to post bond prior to release. Wallace, however, challenges the duration and scope of the stop. He asserts that, because he was arrested for only a traffic violation, and because officers had already conducted a pat down and determined he was unarmed, their subsequent request to conduct a strip search was unjustified. See id. at 29 ("[Ejvidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.'1). The strip search request, he argues, unreasonably extended his detention because it was not reasonably related to his traffic violation.

¶ 11. We addressed a closely related issue in State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W. 696 (Ct. App. 1996), where we concluded that police questioning on a subject unrelated to the initial reason for the stop did not violate the constitution because it did not unreasonably extend the duration of the detention. Id. at 607-09. Police stopped the defendant in Gaulrapp for a defective muffler. Id. at 603. One of the officers then asked him if he had any drugs or weapons inside his vehicle and he replied that he did not. Id. The officer then asked if they could search his person and his vehicle and he consented. Id. The officers found cocaine on his person and marijuana in his truck. Id. at 603-04. The defendant moved to suppress the evidence claiming that the police unlawfully expanded the scope of the traffic stop by asking him questions about drugs and weapons. Id. at 604. The circuit court denied his motion and we affirmed. Id. We concluded that "it is the extension of a detention past the point reasonably justified by the initial stop, not the nature of the questions asked, that violates the Fourth Amendment," and we concluded that the police had not unreasonably prolonged Gaulrapp's detention. Id. at 609.

¶ 12. Similarly, we conclude here that the officers' request for consent to conduct a strip search did not unreasonably prolong Wallace's detention. The circuit court's findings based on the evidence at the suppression hearing support this conclusion. The strip search was conducted within thirty minutes of Wallace's arrival at the police station. The officers made their request before Wallace's bond was posted. Because Wallace was still waiting for his bond to be posted, the officer's request for consent did not prolong his detention at all.

¶ 13. Wallace claims that the officers' motivation for the traffic stop and his subsequent detention was to discover evidence of drug activity, and that this purpose had nothing to do with the traffic offense for which he was arrested. This may well be true, but we rejected this argument in Gaulrapp. Rather, we concluded that "[t]he subjective intentions of the officers do not make the continued detention illegal as long as the officers have .. . probable cause or reasonable suspicion to detain in the first instance." Id. at 609-10; see also Whren, 517 U.S. at 813. That is, the lawfulness of a detention does not turn on the subjective intentions of the officers but on whether they unreasonably prolong a detention in order to obtain consent for a search. As we have explained, that did not happen here.

¶ 14. Wallace also contends that the police should have informed him that after his bond was posted he would be free to go. Once again, Gaulrapp is dispositive. An officer is not required to inform a lawfully seized person that he or she is free to leave after the conclusion of a lawful stop. Gaulrapp, 207 Wis. 2d at 607; Ohio v. Robinette, 519 U.S. 33, 39 (1996).

¶ 15. Finally Wallace contends that his detention was unlawfully prolonged because his statement was not taken until four hours after the initial traffic stop. Our focus, however, is on whether the officers' request for consent to conduct a strip search unreasonably prolonged his detention, not on what transpired after police had conducted the search and found cocaine on Wallace's person. The taking of his statement several hours later did not affect the lawfulness of Wallace's detention because he was then under arrest for the possession offense. See Gaulrapp, 207 Wis. 2d at 609 (explaining that the duration of the search itself and events which flow from it do not impact on the question of whether a detention was unreasonably prolonged to obtain consent).

¶ 16. We next address Wallace's contention that he did not voluntarily consent to the strip search. Whether Wallace consented to a strip search is a question of fact, reviewed on the clearly erroneous standard. State v. Schwegler, 170 Wis. 2d 487, 498, 490 N.W.2d 292 (Ct. App. 1992). Whether the consent was voluntary, however, is a question of "constitutional fact," which we review independently of the circuit court, applying constitutional principles to the facts as found by the trial court. State v. Phillips, 218 Wis. 2d 180, 194, 577 N.W.2d 794 (1998). Although Wallace does not necessarily concede that he consented to be strip searched, his principal claim is that any consent he may have given was not given voluntarily.

¶ 17. Consent is one of the well-established exceptions to the Fourth Amendment's warrant requirement. Id. at 196. The consent, however, must be a " 'free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.'" State v. Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Ct. App. 1993) (citation omitted). The State carries the burden to prove by clear and convincing evidence that a consent was voluntary. Id. In determining whether consent is voluntary, "[w]e look to the totality of the circumstances, considering both the events surrounding the consent and the characteristics of the individual whose consent is sought." State v. Bermudez, 221 Wis. 2d 338, 348, 585 N.W.2d 628 (Ct. App. 1998). No single criterion, however, controls our decision. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Among the factors we consider in determining the voluntariness of consent are:

[W]hether any misrepresentation, deception or trickery was used to entice the defendant to give consent; whether the defendant was threatened or physically intimidated; the conditions at the time the request to search was made; the defendant's response to the agents' request; the defendant's general characteristics, including age, intelligence, education, physical and emotional condition, and prior experience with the police; and whether the agents informed the individual that consent to search could be withheld.

Bermudez, 221 Wis. 2d. at 349.

¶ 18. Wallace argues that his consent to be strip searched was a "mere submission to authority, and not true voluntary consent." He points to the facts that he was at the police station, and that he had been there for thirty minutes when the request was made. We acknowledge that the fact the request was made while Wallace was detained at the police station is a factor to be considered in examining the voluntariness of his consent. See United States v. Watson, 423 U.S. 411, 424 (1976) The Court concluded in Watson that although custody is one factor to be considered in determining voluntariness, it is not in itself dispositive. See id. Thus, the fact that police made the request while Wallace was being detained at the police station does not necessarily end our inquiry.

¶ 19. The police made their request during the booking process and before Wallace's bond had been posted. We concur with the circuit court's conclusion that thirty minutes, devoted as it was to legitimate custodial activities, does not represent an unreasonably lengthy period of custodial detention so as to vitiate the voluntariness of Wallace's consent. The record before us contains no evidence that police created a coercive atmosphere in order to obtain Wallace's consent, nor is there any evidence that they misrepresented their purpose or authority in making the request to search. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (where consent to search a home was obtained as a result of a police officer's false claim of lawful authority, that consent is invalid). Furthermore, there is no evidence, nor does Wallace contend, that the officers used force, threats or coercion to obtain Wallace's consent to the search.

¶ 20. In his post-search statement, when asked whether he knew he did not have to allow the search, Wallace replied, "No." Wallace contends that he should have been informed that he did not have to consent to the search. This was the precise issue before the Supreme Court in Schneckloth, and the Court held that, "while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Schneckloth, 412 U.S. at 249 (footnote omitted); see also State v. Rodgers, 119 Wis. 2d 102, 110, 349 N.W.2d 453 (1984) (the State's burden in a consent search is to show voluntariness, which is different from informed consent).

¶ 21. Wallace also contends that he was not specifically asked if he would consent to the search but was told that the police "would like [him] to consent to a strip search." The trial court specifically found, however, that "[t]he Police asked Wallace if he would consent to a strip search" (emphasis added). This finding is supported by testimony at the suppression hearing that an officer "asked [Wallace] specifically if he would allow us to strip search him, if he would consent."

¶ 22. Finally, in considering Wallace's personal characteristics, we are not persuaded that his age (twenty) and his having a "minimal prior record" rendered Wallace particularly vulnerable to police intimidation, and therefore susceptible to consenting against his will, as he argues. Wallace presented no evidence that he lacked education or was cognitively deficient. Neither does it appear that Wallace was particularly anxious or frightened by his circumstances. Wallace did not testify at the suppression hearing, but the police noted Wallace's demeanor as being "calm" in the arrest report following his strip search.

¶ 23. After reviewing the totality of the circumstances surrounding Wallace's consent to be strip searched, we conclude that the State has met its burden of showing that the consent was voluntary.

I — I I — I HH

¶ 24. Wallace next contends that the strip search was illegal because it violated Wis. Stat. § 968.255. The circuit court concluded that the strip search of Wallace violated the statute because Wallace was not a "detained person," as the statute defines the term, and because the search was not authorized by the chief of police as the statute requires. The court concluded, however, that Wallace had waived his rights under the statute by consenting to the search. Wallace claims this was error because the statute's language suggests universal applicability ("[n]o person may be the subject of a strip search unless [the statutory requirements are met]," § 968.255(2) (emphasis added)), and it contains no exception for consensual searches.

¶ 25. We conclude, however, that we need not address whether police may conduct a consensual strip search free of the statutory restrictions. Absent a constitutional violation, a court may not suppress evidence obtained in violation of a statute except where the statute "specifically requires suppression of wrongfully or illegally obtained evidence as a sanction." State ex. rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). Wisconsin Stat. § 968.255 does not require suppression of evidence obtained in violation of its provisions.

IV

¶ 26. The final issue we address is whether Wallace's consent to a strip search encompassed the more intrusive body cavity search that the police ultimately conducted. After reviewing the parties' initial briefs, we requested supplemental briefing on the following question: Assuming Charles Wallace gave consent to a strip search, did the scope of consent extend to having Wallace bend over and spread his buttocks? We specifically invited the parties to call our attention to cases from other jurisdictions that address the issue of what constitutes a valid consent to a search of the nature conducted in this case.

¶ 27. The State concedes that Wallace was subjected to a "visual body cavity search" and that this type of search is distinguishable from a "strip search." The Virginia Court of Appeals described the difference between them as follows:

A search of the person may range from a Terry-type pat-down to a generalized search of the person to the more intrusive strip search or body cavity search. "A strip search generally refers to an inspection of a naked individual, without any scrutiny of his body cavities. A visual body cavity search extends to a visual inspection of the anal and genital areas."... "A 'manual body cavity search' includes some degree of touching or probing of body cavities."

Hughes v. Commonwealth, 524 S.E.2d 155, 159 (Va. Ct. App. 2000) (citations omitted). The court also noted in Hughes that the search there at issue "became a visual body cavity search when [the officer] had [the defendant] bend over to expose his anus," id., and that a "body cavity search is more intrusive than a strip search." Id. at 161.

¶ 28. The U.S. Supreme Court views all searches of a person's body as highly intrusive invasions of one's privacy. Addressing only the limited "pat-down" search of a suspect in Terry, the Supreme Court explained that, "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Terry, 392 U.S. at 24-25. Because of their significantly greater degree of intrusiveness, searches such as the one conducted in this case are closely scrutinized when challenged under the Fourth Amendment. Although the Court upheld visual body cavity searches of inmates in Bell v. Wolfish, 441 U.S. 520 (1979), it acknowledged that "this practice instinctively gives us the most pause." Id. at 558. Two dissenting justices were more emphatic, labeling the searches "one of the most grievous offenses against personal dignity and common decency," id. at 576-77 (Marshall, J., dissenting), and "a clear affront to the dignity of the detainee as a human being." Id. at 592 (Stevens, J., dissenting). Similarly, the Seventh Circuit has described searches "involving the visual inspection of the anal and genital areas as 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.'" Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

¶ 29. We have concluded that Wallace voluntarily consented to a strip search, and the parties agree that a visual body cavity search was ultimately conducted. Given the conceded distinction between the two types of searches, as well as the heightened level of scrutiny with which we are to view police conduct involving highly intrusive body cavity searches, we are unwilling to hold that a valid consent to the former always suffices as a consent to the latter. Thus, two inquiries remain: First, did the scope of Wallace's initial consent to be strip searched include consent to the visual body cavity search that was actually conducted? If not, did Wallace subsequently consent to the visual body cavity search during the process of being strip searched? We conclude that we must answer no to the first question, and that we cannot answer the second without further factual findings by the circuit court.

¶ 30. In general, "[a] consent search is constitutionally reasonable to the extent that the search remains within the scope of the actual consent." State v. Rogers, 148 Wis. 2d 243, 248, 435 N.W.2d 275 (Ct. App. 1988). The State contends that the visual body cavity search was within the scope of Wallace's consent to be strip searched. The U.S. Supreme Court's decision in Florida v. Jimeno, 500 U.S. 248 (1991), provides guidance for determining whether a search exceeds the scope of consent.

¶ 31. The arresting officer in Jimeno had information that a suspect was involved in drug trafficking when the officer stopped him for a traffic violation. Id. at 249. The officer told the suspect why he was stopped and then requested permission to search his car, telling him that he had reason to believe he was carrying narcotics in his car. Id. at 249-50. The suspect agreed to the search. Id. at 250. The officer found a brown paper bag on the floor and on opening it, found cocaine. Id. The evidence was suppressed after the trial court found that the defendant's "mere consent to search the car did not carry with it specific consent to open the bag and examine its contents." Id. The ruling was affirmed by the Florida District Court of Appeal and the Florida Supreme Court. The Supreme Court reversed, however, stating:

The scope of a search is generally defined by its expressed object. In this case, the terms of the search's authorization were simple. Respondent granted Officer Trujillo permission to search his car, and did not place any explicit limitation on the scope of the search. Trujillo had informed respondent that he believed respondent was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container .... The authorization to search in this case, therefore, extended beyond the surfaces of the car's interior to the paper bag lying on the car's floor.

Id. at 251 (citations omitted).

¶ 32. Relying on the foregoing, the State contends that because Wallace consented to a strip search whose known purpose was to find drugs, that "[i]t was 'objectively reasonable' for the officers to conclude that Wallace's consent to a strip search included a visual search of his anal area where drugs could be concealed." We disagree.

¶ 33. A general consent to the search of one's vehicle for drugs may reasonably be taken to include consent to the search of a paper hag lying on the vehicle's floor. We conclude, however, that a different result obtains when the question is whether the scope of a general consent to one type of bodily search may reasonably be extended to include a more intrusive bodily search. Just as when weighing the competing interests in a Fourth Amendment challenge, greater intrusiveness in a search must be offset by greater justification for the search, we conclude that reasonableness requires a high degree of specificity when consent is relied upon as the basis for a highly intrusive body cavity search.

¶ 34. Given the degree ofthe invasion of Wallace's privacy, if the officers intended to have Wallace bend over and spread his buttocks as a part of their search, they should have asked him to specifically consent to that level of intrusiveness. Put another way, it was not "objectively reasonable" for police to conclude that the consent they obtained from Wallace for a strip search included anything beyond the removal of Wallace's clothes in order to inspect his naked body, but "without any scrutiny of his body cavities." See Hughes, 524 S.E.2d at 159, 161 (holding that a defendant who consented to a pat-down search and a search of his underwear to "check further," did not thereby consent to a visual inspection of his anus).

¶ 35. The State maintains, however, that even if Wallace's initial consent to a strip search did not extend to the visual inspection of his anal cavity, he subsequently consented when he complied with the request to bend over and spread his buttocks. Again we disagree. The circuit court made no specific finding regarding whether Wallace at any time gave his consent for a visual body cavity search. The court found that the following transpired during the search:

The defendant then removed his underwear partially down and the Police had him bend over and spread his buttocks apart. At this time, [an officer] observed some plastic in [Wallace's] rectal area. The Police had Mr. Wallace bend over further and separate his buttocks apart further.

(Emphasis added.) This finding could be interpreted to mean that the court concluded Wallace, at that point, simply acquiesced to police orders. However, because of "the highly intrusive and personal nature of body cavity searches ... consent to such a search will not be inferred from a suspect's silence or apparent acquiescence to an officer's progressively extending the scope of a consensual generalized search." Id. at 161.

¶ 36. The testimony regarding what transpired during the search is also somewhat equivocal on the issue of whether Wallace consented to the police requests to bend over and spread his buttocks. One officer testified as follows:

I asked him if he would spread his butt cheeks, and he placed his hands on his cheeks, and he appeared to be having difficulty spreading his cheeks. I indicated to him that if he was willing to allow us to check his rectal area... he would have to spread his cheeks further than that.
.. .[H]e spread his cheeks not as far as I believe he could have, but apart, and I observed a piece of plastic material between his cheeks near his rectal area.

Wallace's apparent reluctance to comply with the police request, as evidenced by this testimony, could give rise to an inference that Wallace either revoked or refused consent to a visual search of his anal cavity.

¶ 37. As we have noted, whether consent was given is a question of fact. Schwegler, 170 Wis. 2d at 498. We therefore remand this case to the circuit court for a factual determination regarding whether Wallace, at some point during the consensual strip search, gave his further consent to the more intrusive search which ensued. In making this determination, the court should consider both the wording of the officers' requests and Wallace's responses to them in order to determine whether what transpired was the giving of consent or acquiescence to police orders. We leave it to the court's discretion to make the necessary determination on the present record if it can do so, or to take additional testimony on the issue if it deems that to be advisable. If the court determines that Wallace consented to the visual search of his anal cavity, it must then determine whether he did so voluntarily. If the court answers both questions in the affirmative, it should order the appealed judgment of conviction reinstated. See State v. Stevens, 217 Wis. 2d 369, 577 N.W2d 335 (1998); State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998).

CONCLUSION

¶ 38. For the reasons discussed above, we reverse the judgment and remand the cause to the circuit court for further proceedings consistent with this opinion. If the court determines that the visual body cavity search did not violate the Fourth Amendment, the court shall reinstate the judgment of conviction.

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

       It appears that Wallace's real name is LaShawn Thomas, but he claimed to be "Charles A. Wallace" when he was arrested. Because the appellant and respondent both refer to him as Wallace, and that is also the name used in the caption, we will refer to him as Wallace in this opinion.

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

        See Wis. Stat. § 971.31(10) ("An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.").

       The relevant provisions of Wis. Stat. § 968.255 are:
      (I) In this section:
      (a) "Detained" means any of the following:
      1. Arrested for any felony.
      2. Arrested for any misdemeanor under s. 167.30, 940.19, 941.20(1), 941.23,941.237, 941.24, 948.60, 948.605(2)(a) or 948.61.
      3. Taken into custody under s. 938.19 and there are reasonable grounds to believe the juvenile has committed an act which if committed by an adult would he covered under subd. 1. or 2.
      4. Arrested for any misdemeanor not specified in subd. 2., any other violation of state law punishable by forfeiture or any local ordinance if there is probable cause to believe the person is concealing a weapon or a thing which may constitute evidence of the offense for which he or she is detained.
      (2) No person may be the subject of a strip search unless he or she is a detained person and if:
      (d) A person conducting the search has obtained the prior written permission of the chief, sheriff or law enforcement administrator of the jurisdiction where the person is detained, or his or her designee, unless there is probable cause to believe that the detained person is concealing a weapon ....
      The State concedes that Wallace was not a "detained person" within the meaning of the statute.

       Wisconsin Stat. § 968.255(4) provides the following remedy: "A person who intentionally violates this section may be fined not more than $1,000 or imprisoned not more than 90 days or both." Subsection (5) further provides that the statute "does not limit the rights of any person to civil damages or injunctive relief."

       We note that the definition of "strip search" in Wis. Stat. § 968.255(l)(b) encompasses body cavity searches: " 'strip search' means a search in which a detained person's genitals, pubic area, buttock or anus ... is uncovered and either is exposed to view or is touched by a person conducting the search." Our present inquiry, however, is not whether this statute applies to the search at issue, but whether Wallace voluntarily consented to the search, thereby obviating the need for a search warrant under the Fourth Amendment.

        See Security and Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 208 (2nd Cir. 1984) (" '[T]he greater the intrusion, the greater must he the reason for conducting a search.'" (citation omitted)); United States v. Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983) (" '[A]s a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing.'" (citation omitted)).

       We note further that it is the State's burden to prove Wallace's consent to the body cavity search that was conducted, and that it must do so by clear and convincing evidence. State v. Schwegler, 170 Wis. 2d 487, 498, 490 N.W.2d 292 (Ct. App. 1992).


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. James O. Edwards, Defendant-Appellant.

    Court of Appeals

      No. 01-0612-CR.

      Submitted on briefs September 12, 2001.—

      Decided February 7, 2002.

    2002 WI App 66
    (Also reported in 642 N.W.2d 537.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Glenn L. Cushing, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 4-22-02.

   DYKMAN, J.

¶ 1. James Edwards appeals from a judgment of conviction for false imprisonment, disorderly conduct and battery, and from an order denying his postconviction motion to reduce his sentence. Edwards was charged and sentenced as a repeater under Wis. Stat. § 939.62 (1997-98). He contends that the State failed to meet the requirements under Wis. Stat. § 973.12(1) to prove that he was a repeater because the State proved his prior conviction with an uncertified copy of a judgment of conviction and a faxed document from the Department of Corrections (DOC) indicating the periods of Edwards's confinement. Because Edwards failed to object to the admissibility of the two documents at trial and because the documents are sufficient on their face to prove that Edwards had a prior felony conviction, we conclude that Edwards waived the right to object to their admissibility on appeal. We therefore affirm.

Background

¶ 2. On February 9, 1999, the State charged Edwards with one count of false imprisonment, two counts of battery and two counts of disorderly conduct. The State alleged in the complaint that each charge was subject to a habitual criminality enhancement under Wis. Stat. § 939.62, because Edwards had been convicted of the felony of issuing worthless checks on May 30,1991. Further, the complaint alleged that each count occurred in either March or April 1998 and that Edwards had been incarcerated from June 5, 1991, to July 25,1995. A jury found Edwards guilty of one count each of false imprisonment, disorderly conduct and battery.

¶ 3. At the sentencing hearing, the State offered a copy of a judgment of conviction in Dane County Circuit Court case No. 90-CF-954. The copy showed that Edwards was convicted of two counts of forgery on May 30, 1991. In addition, the State offered a five-page document from "Debbie" at DOC, which indicated that Edwards had been confined from June 5, 1991 to July 25, 1995, when he was transferred to the Division of Intensive Sanctions. The circuit court stated that "if [the DOC document] is admissible," then four years and one month should be subtracted from the seven years and two months that had elapsed since the May 1991 conviction and the March 1998 crimes, resulting in a period of three years and one month in which Edwards was not confined. When Edwards did not object to the admission of either document, the circuit court admitted the State's exhibits into evidence and concluded that Edwards was a habitual offender under Wis. Stat. § 939.62. The court sentenced Edwards to prison for four years for false imprisonment, eighteen months for battery and six months for disorderly conduct. Each sentence was imposed consecutively to the others. The circuit court denied Edwards's motion for postconviction relief under Wis. Stat. §§ 809.30 and 974.02, and Edwards appeals.

Opinion

¶ 4. Wisconsin Stat. § 939.62(2) provides that a defendant is a repeater if he or she "was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced." Time spent in actual confinement is excluded in computing the five-year period. Id. Under Wis. Stat. § 973.12(1) a defendant may be sentenced as a repeater under § 939.62 "[i]f the prior convictions are admitted by the defendant or proved by the state." An "official report" of a Wisconsin agency is prima facie evidence of the prior conviction. Wis. Stat. § 973.12(1).

¶ 5. Edwards never admitted a prior conviction, but the State offered a faxed uncertified copy of a judgment of conviction as well as a document faxed from DOC indicating the dates Edwards had been incarcerated to prove that Edwards had been previously-convicted of a felony and that the prior conviction fell within the preceding five-year period. Edwards contends that both the copy of the judgment of conviction and the DOC document are insufficient because: (1) the copy of the judgment of conviction was not certified; and (2) the DOC document was not an "official report" within the meaning of Wis. Stat. § 973.12(1). In response, the State argues that Edwards waived any objection to the admission of the copied judgment of conviction and the DOC document because he failed to object at sentencing. The State further argues that the evidence it submitted was sufficient to prove that Edwards was a repeater.

¶ 6. Edwards concedes that he failed to object to the State's evidence of his prior conviction at the sentencing hearing, but he asserts that the "issue presented is not subject to waiver." For support, Edwards relies on State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998).

¶ 7. In Flowers, the defendant pleaded guilty to one count of retail theft as a repeater. Id. at 23. In his fourth postconviction motion, Flowers argued that there was no basis in law for his sentence enhancement because the State had failed to prove he was a repeater. Id. at 24. The State argued that Wis. Stat. § 974.06 and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), barred Flowers from bringing another post-conviction motion unless he had a sufficient reason for failing to raise the sentencing issue before. Flowers, 221 Wis. 2d at 26-27. We disagreed, concluding that Escalona-Naranjo did not apply to motions brought under Wis. Stat. § 973.13 because that statute provides that sentences imposed in excess of that authorized by law are void "in any case," and therefore, could not be barred by Escalona. See Flowers, 221 Wis. 2d at 28-29.

¶ 8. Although we agree with Edwards that Flowers holds that motions properly brought under Wis. Stat. § 973.13 cannot be barred by Escalona-Naranjo, we disagree that Flowers applies here. The issue in the case before us is not whether Edwards is barred by Escalona-Naranjo from bringing a motion under Wis. Stat. § 973.13. Rather, the issue is whether § 973.13 and Flowers insulate Edwards from the requirement that objections to the admissibility of evidence must be made when the evidence is proffered or be waived. We conclude that they do not.

¶ 9. Wisconsin case law has repeatedly held that parties waive any objection to the admissibility of evidence when they fail to do so before the circuit court. See State v. Mayer, 220 Wis. 2d 419, 430, 583 N.W.2d 430 (Ct. App. 1998); State v. Seeley, 212 Wis. 2d 75, 567 N.W.2d 897 (Ct. App. 1997). There is an exception to the waiver rule for plain error. See Wis. Stat. § 901.03(4). Edwards does not assert that the admission of the evidence of his prior conviction was plain error.

¶ 10. Wisconsin Stat. § 973.13 does not bar application of the waiver doctrine. Admittedly, the statute uses the broad phrase, "[i]n any case," but this is only in any case "in excess of that authorized by law." Both statutory and case law recognize that parties waive their right to object to the admissibility of evidence on appeal when they fail to do so before the circuit court. Therefore, a sentence imposed based on evidence to which the defendant has not objected and that, on its face, satisfies the requirements of Wis. Stat. § 973.12 is not imposed in excess of that authorized by law.

¶ 11. We decline to conclude that Flowers holds otherwise. As noted above, Flowers addressed only the applicability oí Escalona-Naranjo to Wis. Stat. § 973.13 motions and did not address waiver in the context of evidentiary rulings. Were we to interpret Flowers as precluding application of waiver in this context, we would in essence be concluding that a defendant could never waive any argument so long as he or she was proceeding under § 973.13. But it could not have been the intent of the legislature to create special rules of evidence applicable only to § 973.13 motions. Had the legislature intended such a dramatic departure from existing law, it would have so indicated. Nor is such an interpretation required by Flowers, which we emphasized was meant to be a "narrow exception" to the waiver rule, not a mechanism by which defendants bringing § 973.13 motions could circumvent requirements applicable in all other contexts. See 221 Wis. 2d at 30.

¶ 12. Notably, in Flowers, we also observed that applying the waiver rule was not needed "[b]ecause a prisoner has nothing to gain by delaying a claim for [Wis. Stat.] § 973.13 relief." 221 Wis. 2d at 30. A defendant would, however, have much to gain by "strategically waiting" to object to the evidence offered by the State to prove a prior conviction. If a defendant objects to evidence, and the circuit court agrees that the evidence is inadmissible, the State has an opportunity to present evidence that is admissible. But if a defendant waits to object until after the case is appealed, the State is deprived of any ability to present admissible evidence, giving the defendant a strong incentive to remain silent during sentencing. We therefore reject Edwards's contention that Flowers is applicable in determining whether a party has waived an objection regarding the admissibility of evidence at a sentencing hearing. If Edwards believed the evidence was inadmissible, he was required to object when the evidence was admitted.

¶ 13. We also recognize, however, that there is a significant liberty interest at risk with respect to repeater sentence enhancements and that it is important that enhanced penalties be based on prior convictions that actually exist. See State v. Goldstein, 182 Wis. 2d 251, 256 n.2, 513 N.W.2d 631 (Ct. App. 1994). We therefore limit our holding that objections to the admissibility of evidence proving a prior conviction can be waived to instances where the State submits a document that, on its face, is sufficient to prove that the defendant was a repeater. In this way, we both safeguard the interest in accuracy and diminish the incentive for a defendant to withhold objections to inadmissible evidence. This is also consistent with Flowers' statement that "proof of a prior felony conviction or a criminal defendant's admission of the prior conviction is essential if the State seeks additional punishment under § 939.62, Stats." 221 Wis. 2d at 22. A faxed uncertified copy of a judgment of conviction and a faxed document from DOC providing the dates the defendant was incarcerated passes the sufficient-on-its-face test. Edwards therefore waived his right to object to the admission of these documents on appeal.

¶ 14. Because we have concluded that Edwards waived an objection to the admissibility of the judgment of conviction and the faxed DOC document, we do not reach the issue whether those documents would in fact be admissible to prove a prior conviction under Wis. Stat. § 973.12(1).

By the Court — Judgment and order affirmed.

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

        State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), held that Wis. Stat. § 974.06(4) bars defendants from bringing claims under § 974.06 if they could have raised them in a previous postconviction motion or on direct appeal— unless they have a sufficient reason for failing to do so. Id. at 181, 184.

       WISCONSIN Stat. § 973.13 provides: "In any case where the court imposes a maximum penalty in excess of that’authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings."

       We recognize that the facts in State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), are similar to the present case in that the merits of both cases involve determining whether a particular document is sufficient to prove that a defendant is a repeater. In Flowers, the document was a revocation summary. See 221 Wis. 2d at 32-33. But Flowers did not consider whether the defendant in that case had waived his right to object to the admissibility of the revocation summary; it determined only the applicability of Escalona-Naranjo. Further, the State in Flowers did not argue in its brief that Flowers had waived his objection to the admissibility of the revocation summary. See generally Brief for the State of Wisconsin, State v. Flowers (No. 97-3682-CR). We generally do not address issues not raised by the parties. Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1992).


author: CANE, C.J.

text:
    Tricia Janssen, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 01-1302.

      Submitted on briefs December 10, 2001.

    Decided February 12, 2002.

    2002 WI App 72
    (Also reported in 643 N.W.2d 857.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Stephen C. Dozer of McCarty, Curry, Wydeven, Peeters & Haak, LLP of Kaukauna.

      On behalf of the defendant-respondent, the cause was -submitted on the brief of Patrick J. Coffey oí Menu, Teetaert & Beisenstein, Ltd. of Appleton.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Tricia Janssen appeals from a summary judgment in favor of State Farm Mutual Automobile Insurance Company. Janssen argues that the circuit court erroneously interpreted State Farm's uninsured motorist policy to permit State Farm to reduce its uninsured motorist liability by the amount of uninsured motorist payments Janssen received from another carrier. We conclude that the policy's reducing clause applies to payments made by and on behalf of tortfeasors, and does not apply to payments made by other uninsured motorist carriers. Therefore, State Farm should not have been allowed to reduce its liability. We reverse the summary judgment and remand for further proceedings.

Statement of Facts

¶ 2. For purposes of the summary judgment motion, the facts were undisputed. Janssen was a passenger in one of two automobiles that were involved in an accident. The drivers of both automobiles were uninsured. Janssen filed a claim with her insurance company, Leader National Insurance Company, for the injuries she sustained in the accident. She settled with Leader for the $25,000 limit of her uninsured motorist policy.

¶ 3. State Farm provided uninsured motorist coverage to Janssen's parents and to members of their household, including Janssen. Thus, Janssen also filed a claim for uninsured motorist benefits under her parents' State Farm policy. State Farm denied the claim, asserting that Janssen was not entitled to the policy's $25,000 uninsured motorist coverage because State Farm's liability was reduced by the $25,000 in uninsured motorist benefits that Janssen received from Leader. Specifically, State Farm asserted that Leader was an organization "legally responsible" for Janssen's bodily injury and, therefore, State Farm's reducing clause applied.

¶ 4. Janssen sued State Farm, which moved for summary judgment on the grounds that its reducing clause barred additional recovery. In response, Janssen argued that the reducing clause language stating that amounts paid to the insured "by or on behalf of any < person > or organization that may be legally responsible for the < bodily injury >" referred to tortfeasors and their insurers, and not to payments from other uninsured motorist carriers.

¶ 5. The circuit court observed that State Farm's policy language was consistent with Wis. Stat. § 632.32(5)(i)l, which expressly permits insurers to reduce uninsured or underinsured motorist coverage for bodily injury by "[a]mounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made." Id. The court concluded that this statutory language suggests that the reduction is not limited to payments by and on behalf of the tortfeasor. The court concluded that State Farm's liability was reduced by the uninsured motorist benefits Janssen received from Leader and dismissed Janssen's complaint. After the court denied Janssen's motion for reconsideration, this appeal followed.

Standard of Review

¶ 6. This appeal involves interpretations of an insurance policy and Wis. Stat. § 632.32(5)(i)l, both of which present issues of law that we review de novo. Smith v. Atl. Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597 (1990) (interpretation of an insurance policy); State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991) (interpretation of a statute).

Discussion

¶ 7. At issue is the interpretation of the reducing clause in the uninsured motorist coverage section of State Farm's policy. State Farm added this reducing clause to its policy in 1995 after the enactment of legislation permitting such clauses. See 1995 Wis. Act 21, § 4, creating Wis. Stat. § 632.32(5)(i). The clause provides:

The most we will pay is the lesser of:
a. the limits of liability of this coverage reduced by any of the following that apply:
(1) the amount paid to the <insured> by or on behalf of any <person> or organization that may be legally responsible for the cbodily injury>; or
(2) the amount paid or payable under any worker's compensation or disability benefits law; or
b. the amount of damages sustained, but not recovered.

¶ 8. This reducing clause language is consistent with Wis. Stat. § 632.32(5)(i), which states:

(i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.

3. Amounts paid or payable under any disability benefits laws.

¶ 9. Prior to the enactment of Wis. Stat. § 632.32(5)(i), insureds successfully challenged the validity of reducing clauses in uninsured and underin-sured motorist provisions on numerous grounds. See, e.g., Hoglund v. Secura Ins., 176 Wis. 2d 265, 267, 500 N.W.2d 354 (Ct. App. 1993) (underinsured motorist provision invalid because it rendered coverage illusory). Following the statute's enactment, we concluded that a policy containing an unambiguous reducing provision consistent with § 632.32(5)(i) is valid and enforceable, and no longer may be deemed illusory. Sukala v. Heritage Mut. Ins. Co., 2000 WI App 266, ¶¶ 16-19, 240 Wis. 2d 65, 622 N.W.2d 457. Our supreme court also rejected a substantive due process challenge to § 632.32(5)(i)l. Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 2, 236 Wis. 2d 113, 613 N.W.2d 557.

¶ 10. .Consistent with Sukala and Dowhower, Janssen does not contest the validity of State Farm's reducing clause. Rather, she argues that the policy language, which is consistent with Wis. Stat. § 632.32(5)(i)l, refers to payments made by tort-feasors and their insurers, not to payments made pursuant to the injured person's own uninsured motorist coverage. State Farm disagrees, contending that the statute "allows for a reduction of payments when the claimant receives money from any person or organization."

¶ 11. We conclude that the unambiguous language of Wis. Stat. § 632.32(5)(i)l and the State Farm policy refers to payments made by and on behalf of tortfeasors, and not to payments made pursuant to the insured's own uninsured motorist coverage. Our conclusion is consistent with Wisconsin Supreme Court precedent interpreting similar language in a health insurance policy's subrogation clause. See Employers Health Ins. v. Gen. Cas. Co., 161 Wis. 2d 937, 946-47, 469 N.W.2d 172 (1991).

I. Interpretation of Wis. Stat. § 632.32(5)(i)l

¶ 12. The purpose of statutory interpretation is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). To do so, we first consider the language of the statute. Id. If it clearly and unambiguously sets forth the legislative intent, we apply that language to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id. A statute is ambiguous if it is capable of being understood by a reasonably well-informed person in either of two senses. Id. If the statutory language is ambiguous and does not clearly set forth the legislative intent, the court will resort to judicial construction. Landis v. Physician Ins. Co., 2001 WI 86, ¶ 15, 245 Wis. 2d 1, 628 N.W.2d 893.

¶ 13. Although it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute. Id. at ¶ 16. Moreover, in interpreting a statute, courts must attempt to give effect to every word so as not to render any portion superfluous. Id.

¶ 14. Here, at issue is which parties the statute includes when it refers to those persons and organizations "legally responsible for the bodily injury or death for which the payment is made." See Wis. Stat. § 632.32(5)(i)l. The parties agree that at a minimum, this phrase refers to tortfeasors and their insurers. State Farm contends, however, that the phrase also includes payments from other uninsured motorist carriers, which are payments made pursuant to contract law. See Berna-Mork v. Jones, 174 Wis. 2d 645, 652, 498 N.W.2d 221 (1993) (A claim for uninsured motorist benefits is a claim based on contract; an uninsured motorist insurer is not a wrongdoer.). Indeed, State Farm even goes so far as to argue at one point in its brief that the "language allows for a reduction of payments when the claimant receives money from any person or organization."

¶ 15. We conclude that Wis. Stat. § 632.32(5)(i)l unambiguously refers to payments made by and on behalf of tortfeasors, and not to payments made pursuant to the insured's own uninsured motorist coverage. Our conclusion is supported by the definition of the word "responsible" and the principle that in interpreting a statute, courts must attempt to give effect to every word, so as not to render any portion of the statute superfluous. See Landis, 2001 WI 86 at ¶ 16.

¶ 16. We begin with our interpretation of the word "responsible," found in Wis. Stat. § 632.32(5)(i)l, which is not defined in the statute. When construing statutes we are to give them their common-sense meaning to avoid unreasonable and absurd results. City of Milwaukee v. Kilgore, 185 Wis. 2d 499, 516, 517 N.W.2d 689 (Ct. App. 1994), affd, 193 Wis. 2d 168, 532 N.W.2d 690 (1995). Under long-standing tradition, the court may examine a recognized dictionary to determine the common and ordinary meaning of a word. State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 168, 580 N.W.2d 203 (1998). Consultation does not by itself indicate that a statute is ambiguous. See Seider v. Musser, 222 Wis. 2d 80, 87 n.4, 585 N.W.2d 885 (Ct. App. 1998), affd, 2000 WI 76, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 17. Here, the word "responsible" is used as part of the phrase "legally responsible for the bodily injury or death." According to Webster's Third New int'l Dictionary 1935 (unabr. 1993), the definition of "responsible" used with the word "for" is: "2 . . . b : answerable as the primary cause, motive or the result — used with for <[responsible] for her injury>." The American Heritage Dictionary 1108 (New College ed. 1975), provides a similar definition, "3. being the source or cause of something. Used with for." We conclude the word "responsible" refers to the person or organization that caused the bodily injury or death — the tortfeasor.

¶ 18. In other words, we conclude that the phrase "Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made" allows a reduction of amounts paid by the tortfeasor, or on behalf of the tortfeasor (such as payments made by a liability insurer), for bodily injury or death caused by the tortfeasor, whether the tortfeasor is a person or an organization (such as a corporation). A payment made by an injured person's own uninsured motorist policy is payment by a contractually liable party, see Berna-Mork, 174 Wis. 2d at 652, not by a "responsible" party. See Wis. Stat. § 632.32(5)(i)l.

¶ 19. Our conclusion that Wis. Stat. § 632.32(5)001 refers to payments by and on behalf of tortfeasors, and not to payments made pursuant to the insured's own uninsured motorist coverage, also gives effect to the remaining subsections of § 632.32(5)(i), which provide for a reduction of amounts paid or payable under "any worker's compensation law" or "any disability benefits laws." See Wis. Stat. § 632.32(5)(i)2 and 3. Although the nature of the payments made pursuant to worker's compensation and disability benefits laws may be subject to debate, such payments are clearly not payments by a tortfeasor. See State v. LIRC, 136 Wis. 2d 281, 286-87, 401 N.W.2d 585 (1987) (recognizing that worker's compensation system sets up "quasi-contractual status" between worker and employer). Thus, under our interpretation of § 632.32(5)(i)l, payments made under worker's compensation and disability benefits laws would not be payments under § 632.32(5)(i)l.

¶ 20. Under State Farm's theory, however: "Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made," include payments based on contractual obligations to insureds, such as uninsured motorist coverage. See Wxs. Stat. § 632.32(5)(i)l. If this were true, then payments made under the worker's compensation system, which are "quasi-contractual" in nature, see LIRC, 136 Wis. 2d at 286-87, arguably could also reduce an insurer's uninsured motorist liability pursuant to § 632.32(5)(i)l. Payments made by health insurers, private disability insurers and others could also fall within this category.

¶ 21. If Wis. Stat. § 632.32(5)(i)l allowed insurers to reduce their uninsured and underinsured motorist coverage liability by the payments received through worker's compensation and disability benefits laws, there would be no need for Wis. Stat. § 632.32(5)(i)2 and (5)(i)3. 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. See Landis, 2001 WI 86 at ¶ 16. Consistent with this legal standard, we must avoid interpreting Wis. Stat. § 632.32(5)(i)l in a way that renders § 632.32(5)(i)2 and (5)(i)3 superfluous. Our interpretation of § 632.32(5)(i)l renders § 632.32(5)(i)2 and (5)(i)3 necessary because reductions for worker's compensation and disability benefits laws are not included under § 632.32(5)(i)l.

II. Case law interpreting similar language in subrogation cases

¶ 22. Both parties rely on case law to support their interpretation of the phrase, "by or on behalf of any person or organization that may be legally responsible for the bodily injury," that appears in both Wis. Stat. § 632.32(5)(i)l and State Farm's policy. Janssen relies on Employers Health, 161 Wis. 2d at 942, where the supreme court considered whether a health insurer that paid medical benefits to its insured could maintain an action for subrogation to recover from the insured's uninsured motorist coverage. The health insurance contract provided, "If benefits are paid under the Policy and You or Your covered Dependent recovers from a responsible third party by settlement, judgment or otherwise, We have a right to recover from You or Your covered Dependent an amount equal to the amount We paid." Id. at 945 n.5 (emphasis added).

¶ 23. Interpreting this language, our supreme court concluded that a "responsible third party" in the context of the health insurance policy "clearly refers to a party responsible for the insured's injury and not to an insurer providing uninsured motorist coverage to the insured." Id. at 950. Janssen reasons that if the phrase "responsible third party" does not include an insurer providing uninsured motorist coverage, then neither does "person or organization that may be legally responsible for the bodily injury." See Wis. Stat. § 632.32(5)(i)l.

¶ 24. In contrast, State Farm relies on Dailey v. Secura Ins. Co., 164 Wis. 2d 624, 476 N.W.2d 299 (Ct. App. 1991). Dailey involved the same issue addressed in Employers Health. See Dailey, 164 Wis. 2d at 627. In Dailey, however, the subrogation clause in the health insurance policy provided:

The Company shall be subrogated to the rights, claims, interest and causes of action which the Covered Participant may have against any party who may be liable for injury, illness or other loss of the Covered Partici pant, to the extent that the Company has provided Benefits for such injury, illness or other loss under the Policy.

Id. at 628-29 (emphasis added). Distinguishing Employers Health based on the difference in policy language, Dailey concluded:

Unlike the subrogation clause in [Employers Health], the language of [this health insurer's] subro-gation clause is much broader. [The health insurer's] right of subrogation exists against any party who may be liable for injury, illness or other loss of the Daileys. "Any party who may be liable" is not limited to wrongdoers. Rather, this phrase includes insurers, who by their contracts are liable to their insureds for their insureds' injuries or losses.

Id. at 629. State Farm argues that the phrase "any person or organization that may be legally responsible for the bodily injury," found in Wis. Stat. § 632.32(5)(i)l, is similar to "any party who may be liable for injury, illness or other loss" because they both use the word "any." However, State Farm fails to account for any difference between the word "liable" that appears in Dailey and the word "responsible" that appears in Employers Health.

¶ 25. Both Employers Health and Dailey involved the interpretation of health insurance subrogation clauses. The reviewing courts considered not only the policy language, but also the subject matter and purpose of each insurance policy, the uninsured motorist statute and principles of subrogation. Employers Health, 161 Wis. 2d at 952-55; Dailey, 164 Wis. 2d at 628-30. The reasoning they employ is persuasive in this case. Our supreme court in Employers Health held that a subrogation clause referring to the "responsible third party" does not include a right to subrogation against an entity that is not the wrongdoer causing the injury. See Employers Health, 161 Wis. 2d at 950. Similarly, we conclude that a "person or organization responsible for the bodily injury or death" does not refer to a person or entity that is merely contractually liable.

¶ 26. In contrast, the court in Dailey concluded that "any party who may be liable for injury, illness or other loss" is broader than the language in Employers Health and is not limited to wrongdoers. See Dailey, 164 Wis. 2d at 628-29. We agree that the language in Dailey is broader, in part because it uses the word "liable" as opposed to "responsible." If Wis. Stat. § 632.32(5)(i)l had used the word "liable" instead of "responsible," our interpretation may have been different. See Shkolnick v. Am. Fam. Mut. Ins. Co., 506 N.W.2d 356, 358-59 (Neb. App. 1993) (holding that underinsured motorist insurer could reduce its payments by the amount of other insurer's underinsured motorist payments because amounts paid "by or for any person or organization which may be held legally liable for the bodily injury" included payments made pursuant to both tort and contractual liability). However, because § 632.32(5)(i)l used the word "responsible" and language that is similar to that addressed in Employers Health, we conclude that § 632.32(5)(i)l refers solely to payments made by and on behalf of the tortfeasor.

Conclusion

¶ 27. We conclude that State Farm's policy language, which is consistent with Wis. Stat. § 632.32(5)(i)l, does not permit State Farm to reduce its uninsured motorist coverage by the payments Janssen received from another uninsured motorist carrier. We therefore reverse the summary judgment in State Farm's favor and remand for further proceedings.

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

       The reducing clause was an endorsement to the original policy. The endorsement explains that terms appearing in angle brackets originally appeared as bold, italicized, or defined terms in the original policy.

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

       Neither party asserts that State Farm's policy language should be interpreted any differently than Wis. Stat. § 632.32(5)(i)l. Because State Farm's policy language is nearly the same as § 632.32(5)(i)l, our interpretation of the statute also applies to the policy.


author: HOOVER, EJ.

text:
    Robb W. Jensen, Plaintiff-Appellant, v. School District of Rhinelander, Defendant-Respondent, Rhinelander Daily News, Intervenor-Defendant-Respondent.
    Court of Appeals

      No. 01-1841.

      Submitted on briefs February 5, 2002.

    Decided February 12, 2002.

    2002 WI App 78
    (Also reported in 642 N.W.2d 638.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David J Dase and Cook & Franke S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Mitchell R. Olson and Eckert, Kost & Vocke LLP of Rhinelander.

      On behalf of the intervenor-defendant-respondent, the cause was submitted on the brief of Robert J. Dreps and La Follette, Godfrey & Kahn of Madison.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   HOOVER, EJ.

¶ 1. Robb Jensen appeals a summary judgment dismissing his action against the School District of Rhinelander and ordering the district to release its evaluation of Jensen's performance pursuant to an open records law request. Jensen argues that (1) summary judgment was inappropriate because whether the board performed the necessary balancing test remains a disputed issue of fact and (2) his reputational interests and the unreliability of the evaluation due to procedural irregularities outweigh the public interest in disclosure. We reject Jensen's arguments.

¶ 2. We independently follow the same two-pronged analysis undertaken by the trial court to review the school board's decision to release Jensen's performance evaluation. See Kailin v. Rainwater, 226 Wis. 2d 134, 144, 146, 593 N.W.2d 865 (Ct. App. 1999). We consider whether the board performed the appropriate balancing test before it decided to release the evaluation. See id. at 144. Having found that the board performed the balancing test, we conduct a de novo review of the board's decision and independently determine whether the evaluation should be released. See id.

¶ 3. We conclude that the board conducted the requisite balancing test, and our independent performance of the balancing test dictates that the evaluation be disclosed. The public interest in disclosure outweighs any resultant damage to Jensen's reputation. Therefore, we affirm the judgment.

BACKGROUND

¶ 4. The district hired Jensen as its superintendent of schools. Jensen's employment contract provided that it would "be for an automatic and continuous period of two years commencing on July 1, 1998 and ending 2 years from the date the School Board votes to stop the contract from continuing on such automatic and continuous basis."

¶ 5. On April 24, 2000, the board gave Jensen written notice of the nonrenewal of his contract. The board placed Jensen on administrative leave with pay and benefits, effective July 1, 2000. The district hired an acting superintendent to carry out the duties and responsibilities of superintendent while Jensen remained the district's employee and continued to receive his salary and benefits.

¶ 6. The board met in closed session on January 22, 2001, to confer with legal counsel and to consider Jensen's performance evaluation data. It completed its evaluation of Jensen's 1999-2000 performance on January 31, 2001.

¶ 7. On February 1, 2001, the district gave Jensen written notice that it had prepared an evaluation of his performance for the 1999-2000 school year. A document entitled "Superintendent of Schools Evaluation," dated January 31, 2001, accompanied the letter. The district also advised Jensen that it had received an open records request pursuant to Wis. Stat. § 19.35 seeking a copy of the evaluation. It informed Jensen that it intended to release the evaluation to the Rhinelander Daily News on a certain date unless Jensen sought legal redress before that date.

¶ 8. Jensen filed an action against the district requesting a declaratory judgment to preclude the evaluation's release. The trial court granted Jensen's motion for a preliminary injunction, restraining and enjoining the district from releasing the evaluation while the action was pending. The court also permitted the Daily News to intervene.

¶ 9. Jensen and the Daily News filed cross-motions for summary judgment. The trial court rejected Jensen's contention that there was a genuine issue of material fact concerning whether the school board actually performed the required balancing test. It determined that the only evidence on whether the board performed the balancing test was supplied by the affidavit of Kay Pohnl, the board president. Having concluded that no issues of material fact precluded the conclusion that the board performed the balancing test, the court undertook a de novo review of the board's decision to release the record. It concluded:

I would adopt the same reasoning as Ms. Pohnl and go beyond that by finding that it's as likely that damage is done in this community to someone's reputation by withholding information like this and allowing the community to surmise that there is something horrible as there is by releasing this and allowing debate.

The court granted the Daily News' motion for summary judgment, effectively ordering the district to release the evaluation. It entered judgment on May 23, 2001, and extended the preliminary injunction pending appeal. Jensen now appeals.

SUMMARY JUDGMENT

¶ 10. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08. When reviewing a summary judgment, we perform the same function as the trial court and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Further, the balancing of public interests for and against disclosure of public records upon an open records request is a question of law we review de novo. Woznicki v. Erickson, 202 Wis. 2d 178, 192, 549 N.W.2d 699 (1996).

ANALYSIS

I. Whether Board Conducted Balancing Test

¶ 11. Jensen argues that summary judgment was inappropriate because whether the board performed the requisite balancing test is in dispute. He maintains that inferences could be reasonably drawn to support his contention that the board did not perform the balancing test. For example, Jensen contends there was no mention of the balancing test in a letter he received from the district's attorney or in the minutes of the two January 2001 board meetings. Jensen also contends that there were inconsistencies in Pohnl's affidavit and that, if the board performed the balancing test, it did so before the evaluation was complete. He contends that, "because competing inferences arise from the evidence, summary judgment is inappropriate." Schlumpf v. Yellick, 94 Wis. 2d 504, 512, 288 N.W.2d 834 (1980).

¶ 12. Nevertheless, we conclude that the inferences Jensen attempts to raise are insufficient to rebut Pohnl's unqualified, unequivocal affidavit. ‘

A party opposing a summary judgment motion must set forth "specific facts," evidentiary in nature and admissible in form, showing that a genuine issue exists for trial. It is not enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony which is not based upon personal knowledge.

Helland v. Kurtis A. Froedert Mem'l Luth. Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (Ct. App. 1999). Mere allegations of factual dispute cannot defeat the motion for summary judgment. Id.

¶ 13. Pohnl's affidavit expressly states that the board conducted the balancing test and explains the considerations it took into account in performing the test. "Evidentiary matters in an affidavit accompanying a motion for summary judgment are deemed uncontro-verted when competing evidentiary facts are not set forth in counteraffidavits." WEPCO v. Cal. Union Ins. Co., 142 Wis. 2d 673, 684, 419 N.W.2d 255, 259 (Ct. App. 1987). Jensen relies only on inferences that the board did not perform the balancing test. The circumstances Jensen points to do not reasonably give rise to a legitimately disputed fact in light of Pohnl's unqualified, unequivocal affidavit in which she explains in detail how the board applied the balancing test.

II. Balancing Test

¶ 14. Jensen argues that his reputational interests, combined with procedural problems in the evaluation that resulted in an unreliable evaluation, weigh against disclosure. Guided by the strong presumption favoring disclosure, we conclude that the public interests in overseeing the school board and evaluating the manner in which it fulfills its responsibilities outweigh Jensen's reputational interest, which was already harmed when he was placed on administrative leave.

A. Evaluation Process

¶ 15. The school district has a policy setting forth the procedure for evaluating a school superintendent. Jensen points to a number of steps the board did not perform in completing his evaluation. Jensen argues that because of the board's failure to follow its policy for how evaluations are to be conducted, the board violated his contract and his due process rights. For example, Jensen contends that the contract gave him an opportunity to respond to matters in the evaluation and to identify inaccuracies. He claims because he was entitled to but not given such an opportunity, the accuracy and reliability of the evaluation is compromised.

¶ 16. We reject Jensen's argument because problems with the procedure creating a document or its alleged inaccuracy are not proper considerations when performing the balancing test. If we accepted Jensen's argument, a public official could sabotage the subsequent release of public records simply by inserting intentional inaccuracies or employing procedural errors in their production. The evaluation process that results in a presumptively open record is entirely discrete from the balancing of interests after an open records request is made.

¶ 17. Jensen could seek other avenues of recourse to remedy procedural defects and inaccuracies in the evaluation. For example, he has a statutory right to file a response when the evaluation is released. See Wis. Stat. § 103.13(4). If he exercised this right, the public could consider both the evaluation and Jensen's response to determine whether the board acted inadvisedly or even improperly in the evaluation process it employed or the conclusions it reached.

B. Open Records Law

¶ 18. There is a strong presumption in Wisconsin that all government records are public. Wisconsin Stat. § 19.31 codifies the legislature's policy declaration in favor of open records. It provides that "all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." Id. The open records law "shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business." Id. "The general presumption of our law is that public records shall be open to the public. ..." Wis. Newspress, Inc. v. Sch. Dist., 199 Wis. 2d 768, 776, 546 N.W.2d 143 (1996).

¶ 19. "The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." Wis. Stat. § 19.31. However, in construing the open records law, our supreme court has observed, "[t]he statutes and case law have consistently recognized the legitimacy of the interests of citizens to privacy and the protection of their reputations." Woznicki, 202 Wis. 2d at 185. In Woznicki, the court concluded that public employee personnel records are not exempt from disclosure under the open records law. Id. at 183-84. Nevertheless, the court noted that the right to public access is not absolute. Id. at 194. The target of the records has an important interest in privacy and reputation that warrants protection. Id. The court held:

Because we conclude that an individual whose privacy or reputational interests are implicated by the [custodian's] potential release of his or her records has a right to have the circuit court review the [custodian's] decision to release the records, it necessarily follows that the [custodian] cannot release the records without first notifying that individual and allowing a reasonable amount of time for the individual to appeal the decision.

Id. at 193.

¶ 20. In conducting a de novo review of the custodian's decision to release public records, we bear in mind our supreme court's statement:

[T]his legislative policy of not disclosing data which may unduly damage reputations carries over to the field of inspection of public records and documents.... As applied to inspection it does not bar all inspection of public records and documents that might damage reputations, but requires a balancing of the interest of the public to be informed on public matters against the harm to reputations which would likely result from permitting inspection.

Kailin, 226 Wis. 2d at 156 (quoting Wis. Newspress, 199 Wis. 2d at 777-78). In Kailin, 226 Wis. 2d at 156-57, this court weighed the public interest in disclosure of personnel documents about a teacher and administrator against the harm disclosure would cause to Kailin's privacy and reputational interests. We also considered that media coverage already had diminished Kailin's reputation. Id. We determined that "factors in this case weigh on the side of disclosure" and "this case does not present the exceptional circumstances required to overcome the presumption in favor of open records." Id. at 157.-

¶ 21. "Exceptions should be recognized for what they are, instances in derogation of the general legislative intent, and should, therefore, be narrowly construed .. . ." Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984). Nondisclosure results only in exceptional cases. Like Kailin, this is not an exceptional case.

C. De Novo Balancing Test

¶ 22. As indicated, Jensen, a public official, has a recognized reputational interest to be weighed. He contends that this interest outweighs the public's interest in having access to the evaluation. We have reviewed the evaluation. It exclusively concerns the board's view of the manner in which Jensen performed his responsibilities as superintendent. While Jensen's reputation may be damaged by disclosing the evaluation, as the trial court aptly observed, media reports of Jensen's administrative leave and replacement certainly have already had, at least in the Rhinelander area, some adverse effect on his reputation. This circumstance diminishes Jensen's reputational interest in the balance. "In addition, our courts have recognized that a prominent public official, or an official in a position of authority, should have a lower expectation of privacy regarding his or her employment records." Wis. Newspress, 199 Wis. 2d at 787.

¶ 23. Jensen nevertheless claims that he has an interest in preserving his reputation in order to find similar employment elsewhere. Again, this interest is compromised by the undisputed fact that Jensen has been placed on administrative leave. It is unreasonable to suggest that a prospective employer would not learn of this circumstance and not make appropriate inquiries. Thus, Jensen brings into the balance an already compromised reputational interest.

¶ 24. We are satisfied that Jensen's effectively diminished reputational interest is insufficient to overcome the strong presumption favoring disclosure, even without regard to the particular public interest against which it is to be weighed. Thus, it is patently inadequate to defeat the manifest public interest in evaluating the board's reasons for placing Jensen on paid administrative leave while hiring an acting superintendent to perform Jensen's duties. Only if it has available what purports to be the board's basis for its actions can the public evaluate the board's judgment, and thus the desirability that its members remain in the public's service.

¶ 25. The public's right to know how the board acted, why the board acted and, perhaps, why the board is duplicating expenditures outweighs Jensen's already diminished reputational interest. Therefore, public interest requires disclosure of the evaluation.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 19.35 provides in relevant part:
      (1) Right to inspection, (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.
      All statutory references are to the 1999-2000 Wisconsin Statutes, unless otherwise noted.

       The injunction staying execution of judgment shall continue in effect until remittitur.

       The board contends that Jensen was given but declined an opportunity to respond to certain concerns that it raised with Jensen.

       Jensen attempts to diminish the public's interest in the evaluation by again asserting that it was the product of a flawed process and was therefore unreliable. As seen, we have determined that alleged inaccuracies in, or deficiencies in creating, a public record do not inform on the public's interest in the record's release.