author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Frederick Robertson, Defendant-Appellant.
    Court of Appeals

      No. 02-1718-CR.

      Submitted on briefs January 23, 2003.

      Decided March 26, 2003.

    2003 WI App 84
    (Also reported in 661 N.W.2d 105.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Brown, Anderson and Snyder, JJ.
   BROWN, J.

¶ 1.

After a jury convicted him of second-degree sexual assault, Frederick Robertson discovered that the prosecutrix had been treated for depression with psychotic features around the time of the incident. Robertson now alleges that this newly discovered evidence could have been material to the jury determination of his guilt. The newly discovered evidence test is comprised of five factors. This appeal concerns how to implement the third and fifth newly discovered evidence factors — the materiality and different outcome at trial determinations — when a defendant seeks a postconviction in camera review of the prosecutrix's mental health records. We hold that with respect to the "materiality" factor the court should apply the Shiffra-Green materiality test. We also hold that if the court determines that the defendant has satisfied the first four newly discovered evidence factors and the defendant is thus entitled to an in camera review, the court should then apply the O'Brien "consequential evidence" test to determine whether to release the privileged records to the defendant. Finally, we conclude that Robertson is entitled to an in camera inspection of the alleged victim's psychiatric records. We therefore reverse the order denying the postconviction motion for the trial court to conduct an in camera review of the psychiatric records of the prosecutrix and remand for the in camera inspection.

¶ 2. In November 2000, Robertson and E.B. met each other for the first time shortly before a party that took place at the home of one of E.B.'s friends. At the party, the two talked and flirted until E.B. suggested that they proceed outside to a van that Robertson had borrowed. Once in the van, the two began kissing. After a short time, they noticed that other partygoers also were outside and Robertson suggested they drive to a different location around the corner for more privacy. Robertson instead drove to the parking lot of a different apartment complex and, once there, the two resumed kissing and engaged in oral sex. It is at this point that the two stories diverge and the alleged sexual assault occurred.

¶ 3. Robertson testified that at this point he then got on top of E.B. and that she did not resist his engaging in intercourse and she did not tell him "no" or otherwise indicate that she did not consent. E.B., however, testified to the contrary. She testified that she told him "no" several times before the intercourse began and that she screamed loudly and tried to stop Robertson. She testified that to stop her from screaming, Robertson put his hand over her mouth and told her that if she stopped screaming he would get off of her. She testified that he got off of her after she stopped screaming.

¶ 4. , Both Robertson and E.B. testified that after the sexual intercourse ended, E.B. ran from the van without putting her underwear and pants back on. After getting himself dressed, Robertson left the van and brought E.B. her clothes and told her that he was returning to the party. E.B. took her clothes, put them back on and ran to a nearby apartment where she told the residents that she had been assaulted and the police were then called. Robertson was later charged with second-degree sexual assault. -

¶ 5. At trial, the issue became whether E.B. had consented to the act of sexual intercourse and thus E.B.'s act of running from the van figured prominently in the closing arguments of both parties. In the first sentence of its closing argument, the State asserted that "this case is about credibility." The State then argued that the act of running from the van bolstered E.B.'s story that she was forced to engage in intercourse. The State rhetorically asked: "Is that somebody who is acting like they just engaged in consensual sex? I don't think so, and I think your experience in the everyday affairs of life will tell you that. That's consistent with somebody who was forced and that she did not want to do this."

¶ 6. Robertson's lawyer also addressed the act of running from the van, arguing that

for whatever reason — and I don't pretend to be able to explain this. For whatever reason, after vaginal intercourse was completed, including [Robertson] ejaculating, she freaked out. I don't know why she freaked out, but she certainly freaked. She jumped up; she ran from the van. Why did she freak? Why did she run? She just had sex with somebody she didn't know, somebody she just met that night. Maybe the reality that he had ejaculated and the possibility of pregnancy hit her, but certainly she freaked.

¶ 7. In its rebuttal, the State responded that Robertson had not.offered an explanation as to why E.B. ran from the van and that there was no evidence —but only speculation — to support the defense argument that she "freaked." The State then contended, "I can speculate too. I think she freaked. I think she freaked when she had sexual intercourse by force without consent. That's what freaked her out and that's why she acted the way she did."

¶ 8. The jury found Robertson guilty of second-degree sexual assault. In December 2001, Robertson filed a postconviction motion seeking an amendment of the judgment of conviction. Robertson requested that the court vacate the order leaving restitution to be determined. The court granted the motion and ordered the State to provide a proposed restitution amount to Robertson.

¶ 9. In the documentation supporting the proposed restitution amount, the State included a letter from E.B.'s treating psychiatrist. The letter stated that the psychiatrist had been seeing E.B. since December 1999 for "clinical depression with psychotic features." The letter further stated that "[s]he had an exacerbation of her clinical depression in the fall of 2000" and that the "rape happened in the midst of this exacerbation which intensified the clinical depression."

¶ 10. Based on this information, Robertson filed a motion for postconviction discovery, asking the trial court to conduct an in camera review of the records of E.B.'s psychiatric treatment, inform Robertson of E.B.'s doctors' conclusions and release to him information consequential to the case. The trial court denied Robertson's motion for postconviction discovery. The court agreed that the jury could have viewed E.B.'s leaving the van as an indication that she was trying to escape from whatever had occurred in the van. However, the court concluded that it was not sure that the information from E.B's psychiatric records would shed any further light on her flight from the van. Robertson appeals from the judgment of conviction and the post-conviction order.

¶ 11. Our first task is to examine whether Robertson met his burden to compel the trial court to conduct an in camera review of E.B.'s psychiatric records. This question necessarily involves a determination of the appropriate test to be applied when a defendant seeks an in camera inspection of psychiatric records in a postconviction setting. The parties agree that the principles articulated in State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), govern the disposition of this case. The thrust of their dispute lies in how to reconcile those principles with the five-factor newly discovered evidence test this court applied in State v. Behnke, 203 Wis. 2d 43, 53-54, 553 N.W.2d 265 (Ct. App. 1996). We: therefore begin our analysis with a discussion of thosáí four cases.

¶ 12. In Shiffra, this court addressed the issue of whether a defendant can gain access prior to trial to a complaining witness's psychiatric history and counseling records. Shiffra, 175 Wis. 2d at 605. We began our analysis of the issue by acknowledging the competing rights and interests involved when a defendant seeks discovery of confidential records. Id. On the one hand, a criminal defendant's right to due process, in particular, the right to a meaningful opportunity to present a complete defense, is implicated. Id. On the other hand, the State has an interest in protecting a patient's privileged records from being disclosed. Id. We concluded that an in camera review of the privileged records achieved the proper balance between the competing rights and interests of the State and the defendant. Id.

¶ 13. We next established that to be entitled to an in camera inspection of privileged records before and during trial, the defendant must make a preliminary showing that the sought-after evidence is material to his or her defense. Id. We explained that the posttrial materiality test set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987), i.e., asking whether the evidence would have had an effect on the outcome of the trial, was too difficult to apply before trial. Green, 2002 WI 68 at ¶ 32; see also Shiffra, 175 Wis. 2d at 607-08. Rather, we concluded that to compel an in camera review, the defendant must demonstrate that the evidence is relevant and may be helpful to the defense or is necessary to a fair determination of guilt or innocence. Shiffra, 175 Wis. 2d at 608.

¶ 14. Recently, in Green, another case involving a request for an in camera review of counseling records, our supreme court affirmed our reasoning in Shiffra and clarified the threshold the defendant must satisfy to be entitled to an in camera review. Green, 2002 WI 68 at ¶ 34. Green instructs that a defendant must set forth a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information that is necessary to a determination of guilt or innocence and that is not merely cumulative to other evidence available to the defendant. Id. Information is necessary to a determination of guilt or innocence if it tends to create a reasonable doubt that might not otherwise exist. Id. This test, pertaining to access to privileged mental health records, has been applied only in the context of a pretrial request for an in camera inspection.

¶ 15. In O'Brien, a case predating Green, our supreme court concluded that the rationale underpinning Shiffra applied with equal force in the postconviction setting where a defendant sought to test physical evidence. See O'Brien, 223 Wis. 2d at 320. There, the defendant, after being convicted of sexual assault, sought to test blood and semen samples and anal swabs and smears, arguing that this physical evidence could support his defense that the victim had consented to fellatio intercourse and could support his denial of anal intercourse. Id. at 313. The court explained that it was well established that under the Due Process Clause, criminal defendants must be given a meaningful opportunity to present a complete defense and that the court had previously recognized the right of a defendant to use postconviction discovery when the evaluation is of evidence that is "critical, relevant, and material." Id. at 320 (citation omitted). The court then held that a criminal defendant has a right to postconviction discovery of physical evidence when the sought-after evidence would be relevant to an issue of consequence, but that the remedy only should be extended to a case where the evidence would create a reasonable probability of a different outcome at trial. Id. at 323. Although O'Brien involved a postconviction discovery motion, the defendant sought discovery of physical evidence and the supreme court did not address whether the test set forth was to be applied by the trial court when it was evaluating a request for an in camera review of privileged mental health records.

¶ 16. In Behnke, the only published case we are aware of that involves a postconviction motion for an in camera review of privileged records, we analyzed the issue of whether a defendant is entitled to an in camera inspection using the five factors courts consider when deciding whether to grant a new trial in the interests of justice based on newly discovered evidence. Behnke, 203 Wis. 2d at 53-54. The five factors courts consider in a newly discovered evidence determination are: (1) the evidence must have come to the moving party's knowledge after trial, (2) the party must not have been negligent in seeking to discover it, (3) the evidence must be material, (4) the evidence must not be cumulative, and (5) it must be reasonably probable that a different result would be reached on a new trial. Id. We concluded that while the defendant had met the first, second and fourth factors, the third factor, the materiality determination, required him to satisfy the Shiffra materiality test and he had failed to do so. Behnke, 203 Wis. 2d at 54. Consequently, we did not even reach the question of how to implement the fifth factor in a postconviction in camera request.

¶ 17. Here, Robertson contends that the Shiffra-Green preliminary materiality test, asking whether there is a reasonable likelihood that the evidence is relevant and necessary to a determination of guilt or innocence, applies when a defendant seeks a postcon-viction in camera review and that if the in camera review is granted, then the trial court applies O'Brien's "consequential evidence" test to determine whether to release the records to the defendant. The State, on the other hand, seems to assert that Behnke dictates that both the Shiffra-Green materiality test and the O'Brien "consequential evidence" test, which resembles the fifth newly discovered evidence factor, govern when a defendant seeks a postconviction in camera review, and thus to even be entitled to an in camera review of confidential records, a defendant must demonstrate a reasonable likelihood that the records contain relevant information that would have changed the outcome of the trial. The State's argument, however, is inconsistent with the United States Supreme Court's teachings in Ritchie and ignores the dichotomy that exists in Wisconsin law between the threshold a defendant must satisfy to be entitled to an in camera review and the test the trial court applies when it reviews the materials at issue in its chambers.

¶ 18. In Ritchie, the defendant was charged with sexual assault of his minor daughter. Ritchie, 480 U.S. at 43. Before trial, the defendant subpoenaed records from the protective service agency investigating the daughter's allegations. Id. The agency refused to release the records on the grounds that they were privileged and the trial court denied the defendant's motion to enforce the subpoena. Id. at 43-44. On appeal, the defendant claimed that the agency's refusal to turn over the records and the trial court's denial of his motion for disclosure thwarted his right to confront his accuser. Id. at 45.

¶ 19. The Supreme Court held that the defendant was entitled to an in camera review of the agency files. Id. at 58. The Court reasoned that criminal defendants have a right to put evidence before the jury that might influence the determination of guilt; and the government has an obligation to turn over evidence that is both favorable to the accused and material to guilt or punishment. Id. at 57. The Court concluded that evidence in the files would be material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (citation omitted). The Court also rejected the State's argument that to be entitled to an in camera review the defendant had to make a particularized showing of what information he or she was seeking or how it would be material. See id. at 58 n.15. The Court seems to instruct that the test for the preliminary showing to get the in camera review is somehow less burdensome than the test used for determining whether evidence is material during the in camera review. See id. According to the Court, the defendant is only required to make a plausible showing that the information exists and that it would be material and favorable to his or her defense. Id. The Court then remanded the case to the trial court for an in camera review to determine whether the daughter's file contained information that probably would have changed the outcome of the trial. Id. at 61.

¶ 20. We emphasize that the defendant in this case, like the defendants in Green and Shiffra, is trying to make a preliminary showing to compel an in camera review by the trial court. As such, the defendant's preliminary burden for seeking in camera review must be less stringent than the test applied by the court during its in camera inspection. See Ritchie, 480 U.S. at 58 n.15.

¶ 21. We also observe that in O'Brien, the defendant sought to test physical evidence. The potential outcomes of scientific testing of physical evidence, like the testing sought in O'Brien, are relatively limited and easier for the defendant to predict and thus it is easier to demonstrate materiality. Given the confidential nature of mental health records, it makes it very difficult in most cases for the defendant to predict what evidence will be found during a review of the records and thus how it may be material to the case. See Green, 2002 WI 68 at ¶ 35.

¶ 22. We therefore conclude that the O'Brien "consequential evidence" test should not be used to decide whether to conduct an in camera review. A defendant requesting confidential records during postconviction discovery should be required to meet the preliminary Shiffra-Green burden. As with pretrial requests for confidential records, applying the Shiffra-Green test to the posttrial setting strikes the appropriate balance between the interests of the defendant and the State. It affords the defendant an opportunity to have a judge, an independent overseer, review the records while still protecting the privacy of the alleged victim. Then, if the defendant has shown an entitlement to an in camera review based upon the first four factors of the newly discovered evidence test, the trial court should apply the O'Brien "consequential evidence" test to determine whether the material it reviews during its in camera inspection should be disclosed to the defendant. We have every confidence in the trial courts to make a proper determination as to whether the disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611.

¶ 23. The State argues that this conclusion is inconsistent with our decision in Behnke. This is simply not the case. Like Behnke, here we have adopted the materiality test from Shiffra, as it has been clarified in Green, and applied it to the third newly discovered evidence factor. See Behnke, 203 Wis. 2d at 54. Additionally, as we have indicated, in Behnke, the defendant was engaging in what can be characterized as a "fishing expedition" and we did not reach the question of whether the fifth newly discovered evidence factor— whether it is reasonably probable that a different result would be reached on a new trial — should have been applied. See id. From our discussion of Green and Ritchie it is clear that the fifth newly discovered evidence factor, which is similar to the O'Brien "consequential evidence" test, normally does not come into play until the trial court is actually conducting the in camera inspection in its chambers. As we discussed, in Ritchie, the Court concluded that when deciding whether to release the records to the defendant, the trial court should determine whether the evidence was material, meaning the court should ask whether the result of the proceeding would have been different had the evidence been disclosed to the defendant, a test that mirrors the O'Brien test. Thus, contrary to the State's assertions, our approach not only is consistent with our decision in Behnke, but also will bring Wisconsin into alignment with the teachings of the Supreme Court in Ritchie.

¶ 24. The State next submits that if we adopt the two-pronged test and use the newly discovered evidence factors and Shiffra-Green in the first instance and O'Brien in the second instance, we must apply a deferential standard of review because this case involves a newly discovered evidence determination by the trial court. However, in a typical newly discovered evidence case, an appellate court will independently determine whether a denial of a new trial based on the new evidence violates the defendant's due process rights. State v. Coogan, 154 Wis. 2d 387, 394-95, 453 N.W.2d 186 (Ct. App. 1990). Whether the defendant submitted a preliminary evidentiary showing sufficient for an in camera review implicates a defendant's constitutional right to a fair trial and thus raises a question of law. Green, 2002 WI 68 at ¶ 20. We review questions of law de novo. Id.

¶ 25. Having set forth the appropriate test, we now apply it to the facts of this case. The parties here do not dispute that Robertson discovered the existence of the records after trial, he was not negligent in discovering the records and that the evidence in the records would not be cumulative to evidence presented at trial. Rather, the focus is on whether Robertson has satisfied his burden pursuant to the Shiffra-Green test.

¶ 26. As we have stated, to be entitled to an in camera review of confidential records, a defendant must set forth a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information that is necessary to a determination of guilt or innocence and not merely cumulative to evidence already available to the defendant. Green, 2002 WI 68 at ¶ 34. Mere speculation or conjecture as to what information is in the records is not sufficient. Id. at ¶ 33. The Shiffra-Green test essentially requires the court to look at the existing evidence in light of the request for an in camera review and to determine "whether the records will likely contain evidence that is independently probative to the defense." Green, 2002 WI 68 at ¶ 34.

¶ 27. Robertson proffered the letter from E.B.'s doctor in support of his motion for postconviction discovery. In the letter, the doctor stated that E.B. had been diagnosed with depression approximately one year before the alleged sexual assault and that psychotic features had accompanied her depression. The doctor also noted in the letter that E.B. had an exacerbation before the alleged sexual assault. While we acknowledge that if a person has depression it does not automatically translate into an inability to accurately or truthfully perceive or relate events or otherwise make a person less credible, this letter indicates that the doctor had diagnosed E.B. with more than just depression. Though the letter does not describe the psychotic features, the standard text used in psychiatric diagnosis specifies that a person who has depression with psychotic features:

[i]ndicates the presence of either delusions or hallucinations (typically auditory).... Most commonly, the content of the delusions or hallucinations is consistent with the depressive themes .... Less commonly, the content of the hallucinations or delusions has no apparent relationship to depressive themes.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 412 (4th ed. Text Revision 2000).

¶ 28. As the State submitted in its closing arguments, "this case is about credibility." The State used E.B.'s act of running from the van to bolster her credibility and thus her testimony that she did not consent to sexual intercourse. The information in the records concerning E.B's psychiatric treatment and the nature of the psychotic features presented by her depression could explain her behavior in a way that was not possible to do during trial. Robertson could not offer any reason for why E.B. "freaked out" and ran from the van, thereby leaving only one plausible explanation for E.B.'s behavior — that she had just been forced into sexual intercourse. Providing an explanation could in turn rebut or weaken the commonsense explanation offered by the State and thus could affect E.B.'s credibility and lend credence to Robertson's defense of consent.

¶ 29. The State argues that the overall tenor of the doctor's letter shows that he was under the assumption that E.B. was "raped" and that he would not have used the word if he thought that E.B.'s behavior in fleeing the van half-clothed was the result of a delusion or hallucination rather than her response to having been sexually assaulted. This argument ignores the context in which the letter was written. The letter was written in response to a request for restitution amounts after Robertson had been convicted, making the word "rape" a possible reference to the legal determination that Robertson had committed the crime. Further, because Robertson did not learn of the existence of the diagnosis until the postconviction restitution proceedings, he did not have the opportunity to examine the doctor and ask what he meant or what was the basis for his conclusions.

¶ 30. The State also attempts to compare this case to Behnke. In Behnke, the defendant, who was convicted of sexual assault and battery for causing injury to the victim's eye, face and chest, learned after trial that prior to the attack the alleged victim had received treatment because of psychiatric trauma and that she cut or bruised her arm, using pain, to stop her fear. Behnke, 203 Wis. 2d at 48, 52-54. We refused to conduct a posttrial in camera review of the records because we were troubled by what we labeled the "spread effect theory" — that if a person is acting out in a particular fashion by abusing oneself in a certain way, it is enough of a probability that he or she is abusing himself or herself in other ways too — thus justifying a look at his or her mental health records to be sure. Id. at 54-55. Here, the State argues that like Behnke, the possibility that E.B. was suffering from some type of delusion or hallucination when she fled from the van was simply too attenuated from the information contained in the letter to justify an in camera review. However, unlike Behnke, where the defendant had no basis for asserting that the victim would injure herself anywhere but her arm, Robertson's assertion that E.B. could have suffered from delusions or hallucinations that contributed to her behavior is supported by her doctor's diagnosis and medical literature.

¶ 31. We therefore conclude that Robertson has met his burden of making a preliminary showing that there is a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence. As the State itself observed, the case came down to credibility and the trial court concluded that the jury could have viewed E.B.'s leaving the van as an indication that she was trying to escape from whatever had occurred in the van. Robertson has presented evidence demonstrating that E.B.'s psychiatric difficulties might affect both her ability to accurately perceive events and her ability to relate the truth. These problems are relevant and necessary to a determination of guilt or innocence because they bear directly on both E.B.'s credibility and Robertson's defense of consent. Thus, Robertson is entitled to an in camera inspection of the mental health records.

¶ 32. The State next argues that if we conclude Robertson is entitled to a posttrial in camera review of E.B.'s records, then we should certify the case to the supreme court to determine the remedy if E.B. on remand refuses to waive her privilege and permit an in camera review. The State's argument is premature. E.B. has not yet refused to waive her privilege in the records and thus the issue is not yet properly before this court. Courts act only to determine actual controversies — not to announce principles of law or to render purely advisory opinions. See State ex rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 535, 251 N.W.2d 773 (1977). We therefore decline to certify the issue to the supreme court.

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

        See State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993); State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.

        See State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999).

       The complete decision of the trial court on the subject is as follows:
      My recollection of this case was that there was a lot of consensual activity that, if you will, prestage sexual involvement between the two parties that led up to the actual act of sexual intercourse, that is penal/vaginal intercourse, which the evidence was whether or not there was consent for that, and, of course, the defendant felt that there was and the victim said there wasn't and part of showing her intention was her leaving the van.
      Yóu claim that it is a dramatic event. The jury looks at it as a fact that certainly if it was consensual, a person doesn't jump up and run out of a van, which would show that this person was trying to escape from the conduct that they had been engaged in. So I'm not sure that having [E.B.'s doctor's] report is going to shed any further light on it.

       While the court used the term "consequential," it noted that the term was synonymous with "material." O'Brien, 223 Wis. 2d at 320 n.11.

       An exception would be if the trial court assumed the truth of every supposition the defendant hoped to gain by perusal of the confidential records, but nonetheless concluded that such evidence would not create a reasonable probability of a different result on retrial.

       The Diagnostic and Statistical Manual has been described as "the primary tool of clinical diagnosis in the psychiatric field." State v. Post, 197 Wis. 2d 279, 305, 541 N.W.2d 115 (1995).


source: Caselaw Access Project

author: DEININGER, J. DYKMAN, J.

license: Public Domain

text:
    Wisconsin Citizens Concerned for Cranes and Doves, John Wieneke and Pat Fisher, Plaintiffs-Respondents, v. Wisconsin Department of Natural Resources, Defendant-Appellant, U.S. Sportsmen's Alliannce Foundation f/k/a Wildlife Legislative Fund of America, Defendant-Intervenor-Co-Appellant.
    Court of Appeals

      No. 02-1166.

      Submitted on briefs December 9, 2002.

    Decided March 27, 2003.

    2003 WI App 76
    (Also reported in 661 N.W.2d 858.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Philip Peterson, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-intervenor-co-appellant, the cause was submitted on the briefs of Mark A. Cameli and Andrew W. Erlandson of Reinhart Boerner Van Deuren, S.C., Madison and William P Horn and Allison M. Ellis of Birch, Horton, Bittner and Cherot, Washington, D.C.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of George B. Strother TV of Krekeler Strother, S.C., Madison.
    Before Vergeront, PJ., Dykman and Deininger, JJ.

       Petition to review granted 6-12-03.

   DEININGER, J.

¶ 1. The Wisconsin Department of Natural Resources appeals a circuit court order which declared a department rule invalid and prohibited the department from "promulgating an administrative rule setting a hunting season for mourning doves in Wisconsin absent further legislative action authorizing it to do so." We agree with the department that the plain language of Wis. Stat. § 29.014(1) (1999-2000) authorizes it to establish seasons for the hunting of mourning doves. Accordingly, we reverse the appealed order.

BACKGROUND

¶ 2. The Wisconsin Natural Resources Board in 2001 adopted Wis. Admin. Code § NR 10.01(1)(h) which established an open season, as well as daily bag and possession limits, for mourning doves. The Wisconsin Citizens Concerned for Cranes and Doves and two of its officers filed suit under Wis. Stat. § 227.40 seeking to have the rule declared invalid. The lead plaintiff describes itself as "a public interest organization" with approximately 250 members statewide who have contributed money to further the purpose of, among other things, "promoting the protection" of cranes and doves. We will refer to the plaintiffs-respondents as the Concerned Citizens, or simply as the Citizens.

¶ 3. The circuit court concluded that the relevant provisions of Wis. Stat. ch. 29 were ambiguous regarding the department's authority to establish a hunting season for mourning doves, and that the legislature did not intend to grant that authority. Accordingly, the court granted injunctive and declaratory relief prohibiting the department from promulgating a rule setting a hunting season for mourning doves. The department appeals.

ANALYSIS

¶ 4. A person who wishes to have an administrative rule declared invalid may bring "an action for declaratory judgment as to the validity of such rule" in the Dane County Circuit Court. Wis. Stat. § 227.40(1). "[T]he court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." Section 227.40(4)(a). The Concerned Citizens contend that Wis. Stat. ch. 29 does not permit the department to establish an open season on mourning doves. In other words, the Concerned Citizens claim, and the circuit court concluded, that Wis. Admin. Code § NR 10.01(l)(h) is invalid because the rule exceeds the department's statutory authority. See Seider v. O'Connell, 2000 WI 76, ¶¶ 24, 28, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 5. Our review is de novo, but in deciding this question of law, we may derive "benefit" from the experience and analysis of an administrative agency which the legislature has empowered to administer a law it has enacted. Id., ¶¶ 25-27. Here, the department has obviously concluded that Wis. Stat. ch. 29 authorizes it to establish a hunting season for mourning doves. We nonetheless have a duty to independently determine whether that is the case. Id. The department's determination that it was empowered to promulgate the rule is thus not entitled to the deference we would accord if the question it had decided were one of fact, or one of law not going to the scope of its authority in promulgating the rule. See League of Wisconsin Municipalities v. Department of Commerce, 2002 WI App 137, ¶ 8, 256 Wis. 2d 183, 647 N.W.2d 301, review denied, 2002 WI 121, 257 Wis. 2d 117, 653 N.W.2d 889 (Wis. Sep. 26, 2002) (No. 01-1035).

¶ 6. Our task is to determine whether Wis. Admin. Code § NR 10.01(l)(h) contradicts "either the language of [Wis. Stat. ch. 29] or legislative intent." Seider, 236 Wis. 2d 211, ¶ 72. If it conflicts with either, the rule "exceeds the [department]'s statutory authority, and must be invalidated." Id., ¶ 73. Conversely, if we find no conflict with either the language of Wis. Stat. ch. 29 or the legislature's intent in enacting the provisions of that chapter, we must conclude that the rule is within the department's authority and valid. League of Wisconsin Municipalities, 256 Wis. 2d 183, ¶ 9. Put another way, we will invalidate the department's rule only if we are convinced that it contravenes statutory language or a clear expression of legislative intent, and the burden is on the Concerned Citizens to so convince us. See id., ¶ 10. In our inquiry, the question of whether the department should establish a season for mourning doves plays no part, the only issue being whether it could do so.

¶ 7. As with all questions of statutory interpretation, our chief objective is to discern the intent of the legislature. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). We first look to the plain language of the statute to determine what the legislature intended. See id. If the language is ambiguous, we may turn to extrinsic aids such as the legislative history, scope, context and purpose of the statute to determine legislative intent. See id. In construing multiple statutes, we must harmonize them if possible, and read them together in a way that will give each full force and effect. See City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995).

¶ 8. The department asserts that its authority to establish a hunting season for mourning doves derives from Wis. Stat. § 29.014(1), which provides as follows:

The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.

The term "game" is defined in Wis. Stat. § 29.001(33) to include "all varieties of wild mammals or birds." Because mourning doves are wild birds, the department contends they are plainly "game" under § 29.001(33), and thus among the species for which it may establish hunting seasons and related regulations under the plain language of § 29.014(1). We agree with the department that if we were to look no further than the two subsections on which it relies, its authority to promulgate the rule in question would be plainly established, and this would be a very short opinion.

¶ 9. The Concerned Citizens contend, however, that our inquiry cannot end so quickly because other, arguably related provisions of Wis. Stat. ch. 29 create ambiguity as to whether mourning doves may be deemed "game" within the meaning of Wis. Stat. §§ 29.001(33) and 29.014(1). We agree with the Citizens that ambiguity "can be found in the words of the statutory provision itself, or by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes." State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997). Thus, we must determine whether " 'reasonable minds could differ1" as to whether mourning doves are "game" subject to the department's statutory authority to establish hunting seasons. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 283, 548 N.W.2d 57 (1996) (citation omitted). This is a question of law for our independent resolution, and the fact that the parties disagree does not demonstrate that ambiguity exists. See National Amusement Co. v. DOR, 41 Wis. 2d 261, 267, 163 N.W.2d 625 (1969). Rather, we must "look to the language of the statute itself to determine whether 'well-informed' persons" could be confused as to the legislature's intent. Id.

¶ 10. We therefore turn to the statutory provisions which the Concerned Citizens contend render the term "game" ambiguous as applied to the present facts. Wisconsin Stat. § 29.001, in addition to defining "game" in the manner we have stated, also provides definitions for, among many other things, "game birds" and "non-game species":

(39) "Game birds" includes wild geese, brant, wild ducks, wild swan, rails, coots, gallinules, snipe, woodcock, plovers, sandpipers, ruffed grouse, prairie chicken, sharp-tailed grouse, pheasants, Hungarian partridge, Chukar partridge, bobwhite, quail, crows and wild turkey.
(60) "Nongame species" means any species of wild animal not classified as a game fish, game animal, game bird or fur-bearing animal.

Because mourning doves are not specified as a "game bird" in § 29.001(39), the Citizens maintain that these birds are thus a "nongame species" under § 29.001(60), and as such cannot be "game" subject to the department's authority to establish hunting seasons under Wis. Stat. § 29.014(1).

¶ 11. The department concedes that mourning doves are a "nongame species," but asserts, first, that this does not prevent them from also being "game," and second, that the presence of definitions for terms used in other sections addressing other legislative purposes does not render the term "game" as used in Wis. Stat. § 29.014(1) ambiguous. Moreover, in the department's view, another statute, Wis. Stat. § 29.039, which deals with "nongame species," provides an alternative source for its authority to establish seasons during which mourning doves may be hunted. The department asserts that its interpretation is the only reasonable one, and that it harmonizes §§ 29.014 and 29.039 as part of a comprehensive scheme for regulating the taking of wild animals in Wisconsin. We agree with the department.

¶ 12. At first blush it seems incongruous to conclude that a given creature could be both "game" and a "nongame species." A reasonably well-informed person, however, would be aware that Wis. Stat. § 29.001 provides detailed definitions of terms employed in Wis. Stat. ch. 29, and that these statutory definitions are meant to supplant common or dictionary definitions of the defined terms. That well-informed person would then observe that the legislature chose to employ the defined term "game" when authorizing the department to establish open and closed seasons under Wis. Stat. § 29.014(1), instead of the (apparently) narrower defined terms "game animals" and "game birds." See § 29.001(36) and (39).

¶ 13. In order to adopt the Concerned Citizens' interpretation that a bird that is not a "game bird" cannot be "game," one would have to rewrite the legislative definition of "game" to read something like this: " 'game' means all 'game birds' and 'game animals' and does not include any 'nongame species.'" But that is not how the legislature chose to define "game," defining it instead to include "all varieties of wild mammals or birds." Wis. Stat. § 29.001(33). We agree with the department that when the legislature goes to the trouble of defining a specific term, and then employs that term in a statute to which the definition applies, a reasonably well-informed person would (and a reviewing court should) apply the definition provided when interpreting the statute, without regard to other terms that are defined differently and used in other statutes for other purposes. See Republic Airlines, Inc. v. DOR, 159 Wis. 2d 247, 253, 464 N.W.2d 62 (Ct. App. 1990) ("When words are defined by statute, we look nowhere else for their meaning and apply only the legislature's definition."); American Motorists Ins. Co. v. R&S Meats, Inc., 190 Wis. 2d 196, 214, 526 N.W.2d 791 (Ct. App. 1994) ("Where the legislature uses similar but different terms in a statute ... we presume it intended those terms to have different, distinct meanings.").

¶ 14. We therefore conclude that the presence of definitions for "game birds," which the department concedes does not include mourning doves, and for "nongame species," which does include the doves, does not render the term "game" as used in Wis. Stat. § 29.014(1) ambiguous. The legislature has separately and specifically defined the term "game" to include "all varieties of wild mammals or birds." Wis. Stat. § 29.001(33). That definition plainly includes mourning doves, and it is that definition which we must apply in interpreting the scope of the department's authority under § 29.014(1).

¶ 15. Moreover, we note that Wis. Stat. § 29.001(39) does not say that "game birds" are limited to the enumerated species, but that the term "includes" those species. One might thus argue that the term "game birds" is open ended and could encompass mourning doves. The Concerned Citizens point out, however, that the statutory definition of "game birds" at one time included mourning doves by name, but the legislature removed mourning doves from the definition in 1971 when it designated the mourning dove as the Wisconsin state "symbol of peace." See Wis. Stat. § 1.10(3)(a); Laws of 1971, ch. 129. From this, the Citizens would have us conclude that the legislature does not want mourning doves to be hunted. We reject the argument, however, because if that is the result the legislature intended, it could easily have also removed mourning doves from the definition of "game," or enacted a separate prohibition against hunting the birds. Moreover, as the department points out, several other state symbols are "fair game" in Wisconsin. See, e.g., § 1.10(3)(g) and (j) (designating the muskellunge the "state fish," and the white-tailed deer the "state wildlife animal").

¶ 16. In any event, even though some non-enumerated wild birds might be "game birds" within the facially open-ended definition of Wis. Stat. § 29.001(39), the department does not dispute that mourning doves are a "nongame species" under § 29.001(60), perhaps because of the legislature's action in 1971 to remove mourning doves from the statutory enumeration of "game birds." The department contends, however, that it could establish open and closed seasons for mourning doves by virtue of Wis. Stat. § 29.039(1), which provides as follows:

The department may conduct investigations of nongame species to develop scientific information relating to population, distribution, habitat needs, and other biological data to determine necessary conservation measures. The department may develop conservation programs to ensure the perpetuation of nongame species. The department may require harvest information and may establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species.

(Emphasis added.) In the department's view, § 29.039(1) provides an alternate source of its authority to establish open and closed seasons and bag and possession limits for mourning doves. Again, we agree.

¶ 17. The Concerned Citizens claim, however, that although Wis. Stat. § 29.039(1) permits the department to regulate the "taking" of mourning doves, the statute does not authorize the department to establish seasons for "hunting" them, and in fact, prohibits the department from doing so. We conclude, however, that such an interpretation would require a strained reading of § 29.039, and it arguably leads to the unreasonable result that the department would be powerless to prevent mourning doves, which the Citizens seek to protect, from being hunted all year long.

¶ 18. The major premise of the Concerned Citizens' argument is that, even if "nongame species" are a subset of the broader term "game" (which, as we have noted, the Citizens dispute), because the former term is the more specific, Wis. Stat. § 29.039(1) and not Wis. Stat. § 29.014(1) governs what the department may and may not do regarding human interactions with mourning doves. And, in the Citizens' view, § 29.039 does not authorize the department to allow nongame species to be hunted because "hunting" is not mentioned in § 29.039. Rather, the statute refers only to the "taking" of nongame species. Moreover, as the Citizens also point out, § 29.039 does not include authority to "establish and maintain open and closed seasons" as does § 29.014(1), further evincing what is in their view the legislature's intent that "nongame species," such as mourning doves, may not be hunted.

¶ 19. We reject the Concerned Citizens' restrictive interpretation of Wis. Stat. § 29.039(1). First, as we have discussed, we are not convinced that one need look further than Wis. Stat. § 29.014(1) to determine that the department may establish hunting seasons for mourning doves, because they are "game" within the meaning of that subsection. But, even if § 29.039 must be consulted to determine whether the legislature intended to restrict the authority granted in § 29.014 regarding any "game" that is also a "nongame species," we conclude that the plain language of § 29.039(1) permits the department to regulate when "nongame species" may be hunted. The department may under § 29.039(1) "establish limitations relating to taking" mourning doves. We conclude that this language plainly authorizes the department to confine the "taking" of mourning doves to certain days of the year. It simply makes no sense to say that persons who wish to "take" the doves during those days may not "shoot[] at" or "attemptD to capture or kill" the birds, that is, "hunt" them. See Wis. Stat. § 29.001(42) (quoted in footnote 6).

¶ 20. We therefore conclude that, by virtue of its authority under Wis. Stat. § 29.039(1), as well as its authority under Wis. Stat. § 29.014(1), the department may, as it has done in Wis. Admin. Code § NR 10.01(l)(h), declare that mourning doves may be hunted only during September and October. To con-elude, as the Concerned Citizens would have us do, that the department lacks authority to set "open" seasons for mourning doves would suggest that the department could also not establish by rule a "closed season" for the birds. This in turn would mean that the hunting or taking of mourning doves could not be limited to a specified season at all under state law. As the supreme court explained almost a century ago:

[The State] may ordain closed seásons; it may prescribe the manner of taking, the times of taking, and the amount to he taken within a given time, as it may deem best for the purpose of preserving and perpetuating the general stock. In the absence of legislation, the citizen may doubtless pursue, take, and dispose of fish and game as he sees fit, and without restraint, so long as he violates no private rights; but when the state steps in and makes proper police regulations, the citizen takes his right of fishing or fowling hampered by such regulations; in other words, his right is the right which the state leaves to him, no more and no less.

See State v. Nergaard, 124 Wis. 414, 420, 102 N.W. 899 (1905) (emphasis added).

¶ 21. Moreover, any asserted ambiguity or conflict in the statutes at issue rapidly evaporates when Wis. Stat. ch. 29 is viewed as creating a comprehensive scheme for the "purposes of regulating the enjoyment, use, disposition, and conservation of [all] wild animals" within the state. Wis. Stat. § 29.011(1). To achieve these purposes, the legislature has granted rule-making authority to the department for a broad range of regulatory activities relating to wild animals. These activities range from the designation by the department of "endangered" and "threatened" species, which may be taken only under very limited circumstances as the department may permit, see Wis. Stat. § 29.604, to the establishment of open and closed seasons and such other "game" regulations as will "ensure the citizens of this state continued opportunities for good . . . hunting and trapping." Wis. Stat. § 29.014(1).

¶ 22. Within this range, and as a complement to its other powers and responsibilities, is the department's authority under Wis. Stat. § 29.039 to study "nongame species" present in the state, to develop "conservation programs to ensure [their] perpetuation," and to "establish limitations relating to taking, possession [etc.] ... of nongame species." Viewed in this way, § 29.039 provides additional authority to the department in furtherance of the overall legislative purposes. The statute simply cannot be read as withdrawing from the department authority granted it elsewhere in Wis. Stat. ch. 29.

¶ 23. Finally, we note that the Concerned Citizens argue that "allowing the hunting of mourning doves is inconsistent with other" department rules. The Citizens point to the department's use of the term "wild animals" instead of "game" in the introduction to Wis. Admin. Code § NR 10.01. They are also critical of the fact that, although § NR 10.01(1) includes the season and bag limits for mourning doves under the category "Migratory Game Birds," the department elsewhere provides a definition of "Migratory Game Birds" which does not include mourning doves. Although the department may be guilty of crafting inconsistently worded administrative rules, that fact has no bearing on the issue of whether it is statutorily authorized to promulgate a rule establishing open and closed seasons for mourning doves.

CONCLUSION

¶ 24. For the reasons discussed above, we reverse the appealed order and vacate the injunction contained therein.

By the Court. — Order reversed.

DYKMAN, J.

¶ 25. (dissenting). In five days, the people of the State of Wisconsin will vote on a constitutional amendment which would amend article I, section 26 of the Wisconsin Constitution to provide: "The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law." If this amendment passes, and most predict that it will, the issue in this case will change to the definition of "game," as that word is used in the Constitution, whether doves are game, whether there are any restrictions on dove hunting, and if so, whether the restrictions are reasonable. The question will shift from whether a dove season is permitted to whether one is prohibited. What we say in these opinions will become moot. Were I writing for a majority, I would wait five days, and if the amendment passes, ask the parties to brief the constitutional issue rather than decide this case on laws that will have become largely inapplicable. But this is a dissent, so I must address the issues presented.

¶ 26. This is not a case about doves. It is a case about how courts discover what the legislature intended when it passed a variety of laws. The birds happen to be the vehicle for an inquiry into legislative intent.

¶ 27. This is also a case about the power or authority of an administrative agency. Again, it is not a case about doves. The doves are only the focus of an inquiry into the power or authority of the Department of Natural Resources.

¶ 28. It is telling that the trial court took ten pages to examine the statutes involved in this case and conclude: "The statutes involved in this case are as clear as mud." The majority has spent thirteen pages to conclude the opposite. There are now four judges who have written twenty-six pages trying to discern legislative intent, and they have split, two-to-two. That tells me that this is a close case, and that no matter who wins it, they have barely won it by a nose (or a beak).

¶ 29. My analysis is not extensive. I start with two long standing rules of administrative law: "[a]n administrative agency has only those powers which are expressly conferred or can be fairly implied from the statutes under which it operates." Maple Leaf Farms, Inc. v. DNR, 2001 WI App 170, ¶ 13, 247 Wis. 2d 96, 633 N.W.2d 720, review denied, 2001 WI 117, 247 Wis. 2d 1034, 635 N.W.2d 782 (No. 00-1389). And: "Any reasonable doubt as to the existence of an implied power in an agency should be resolved against the exercise of such authority. "Td (citation omitted).

¶ 30. The swamp surrounding the various statutes applicable to this case is murky. There is really no way to say, beyond a reasonable doubt, that the legislature has given the DNR authority to authorize a dove season. Even the majority fails to point to a statute providing in effect: "The DNR has the authority to set a dove season."

¶ 31. I have a reasonable doubt that the legislature has expressly or impliedly given the DNR that power. I am impressed that the legislature addressed the issue in 1971 by designating the mourning dove as the Wisconsin "symbol of peace," and removing the bird from the definition of "game." Common sense tells me that the legislature would not have done this intending that the "symbol of peace" would still find a place on someone's dinner table. While the legislature could have been more explicit, what we are looking for is legislative intent. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). That the legislature did not do exactly as the majority would have liked is no reason to conclude that it did the opposite.

¶ 32. The majority draws "legislative intent" from the inaction of legislative committees, and the failure of the legislature to prohibit dove hunting. The action of a committee is by definition not the action of the legislature. Even the majority does not speak of "committee intent." The supreme court rejected the notion that committee inaction indicated legislative intent in American Motors Corp. v. DILHR, 101 Wis. 2d 337, 349, 305 N.W.2d 62 (1981). Even the joint committee for review of administrative rules lacks the power to enact legislation or rules. Wis. Stat. § 227.19(5)(e), (f). Non-passage of a bill is even worse evidence of what the legislature intended. "[N] on-passage of a bill is not reliable evidence of legislative intent." Lindsey v. Lindsey, 140 Wis. 2d 684, 694 n.8, 412 N.W.2d 132 (Ct. App. 1987). By saying so, the majority does not transform committee action and legislative non-action into legislative intent. In contrast, the legislature itself told us in 1971 that doves were no longer game birds, and were designated as Wisconsin's "bird of peace." Under the majority's view, non-action by later committees and legislatures effected a repeal of these legislative acts. I do not subscribe to this explanation of how Wisconsin law is made.

¶ 33. I conclude that the legislature signaled its intent that there should not be a hunting season for doves. Perhaps not as loudly or emphatically as it could have, but enough that this intent is discernible to those who inquire. Certainly, it did not signal the opposite intent beyond any reasonable doubt. Accordingly, the DNR exceeded its authority when it set a hunting season for the birds. The result is that its action is invalid. Oneida County v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993). Since that is not the opinion of the majority, I respectfully dissent.

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

       The Natural Resources Board is not a party to this action. For convenience, and as the circuit court and the parties have done, we will refer in this opinion to the rule and authority at issue as the department's.

       The U.S. Sportsmen's Alliance Foundation was permitted to intervene in the circuit court and it is a co-appellant in this appeal. Although we do not separately address the Foundation's arguments for reversal of the appealed order, our references to the department's arguments are intended to include many of the Foundation's arguments. The Foundation makes one argument that the department does not — that the circuit court erred in granting the Concerned Citizens relief from an order of dismissal for lack of standing. Because we reverse the appealed order on its merits, and because neither appellant argues on appeal that the Concerned Citizens in fact lack standing to bring this action, we do not address the circuit court's discretionary decision to grant relief from its original order on standing.

       The terms "game birds" and "game animals" are employed in statutes relating to game farms, see, e.g., Wis. Stat. § 29.867, and to the possession or transportation of game birds and animals, see Wis. Stat. §§ 29.354 and 29.364, but the terms are not found in Wis. Stat. § 29.014.

       The dissent relies heavily on the legislature's action in designating mourning doves as the state "symbol of peace" as an indication of its intent that the birds should not be hunted in Wisconsin. If that is its intent, the legislature could have prevented the promulgation of Wis. Admin. Code § NR 10.01(1)(h). See Wis. Stat. § 227.19(5)(f). Although committees in both houses of the legislature conducted hearings on the rule, neither took action to prevent its promulgation. See § 227.19(4). Moreover, although several bills have been introduced since the promulgation of § NR 10.01(l)(h) to prohibit the department from authorizing an open season for the hunting of mourning doves, none have passed. See 2001 S.B. 45; 2001 A.B.190; 2001 A.B. 859. Thus, were it necessary for us to go beyond the plain language of Wis. Stat. ch 29 to ascertain the legislature's intent regarding the department's authority to establish an open season for hunting mourning doves, legislative history would provide support for the conclusion we reach. See Mallo v. DOR, 2002 WI 70, ¶¶ 30-31, 253 Wis. 2d 391, 645 N.W.2d 853 (Where a proposed rule gains significant media coverage, suggesting that the legislature could not ignore its existence, the failure of legislative committees to object to the rule is evidence that the legislature intended to grant the agency authority to promulgate the rule.).

       "Taking" is not defined in Wis. Stat. ch. 29 but is listed among the activities which comprise "hunting" as defined in Wis. Stat. § 29.001(42): " 'Hunt' or 'hunting' includes shooting, shooting at, pursuing, taking, capturing or killing or attempting to capture or kill any wild animal."

       Additional evidence that the legislature did not intend the authority to regulate the "taking" of certain species to preclude "hunting" them is found in Wis. Stat. § 29.014(1). The Concerned Citizens do not dispute that § 29.014(1) authorizes the department to establish hunting seasons for some birds, but the statute does not expressly say that the "open and closed seasons" which the department may establish are "hunting" seasons. Immediately after the season setting authority, moreover, the statute authorizes the department to establish "conditions governing the taking of... game." Id. (emphasis added). It is only in the concluding words of the subsection that "hunting" is mentioned, as a part of the legislature's directive that seasons, bag limits and "conditions governing... taking" should be enacted in order to "ensure the citizens of this state continued opportunities for good fishing, hunting and trapping." Id. The undefined term "taking" as used in Wis. Stat. ch. 29 thus appears to include, not preclude, such activities as "fishing, hunting and trapping."

       The department notes, however, that federal law "limits the taking of migratory birds, including mourning doves," but many other "nongame species" would not have any protection from unlimited "open seasons" were it not for the department's authority under Wis. Stat. § 29.039 to place temporal restrictions on their taking.

       The dissent posits that we should have awaited the outcome of the vote on the proposed amendment to the Wisconsin Constitution that would incorporate a "right to ... hunt,. .. subject only to reasonable restrictions as prescribed by law." Dissent at ¶ 25. Whether the state's constitution is amended in that manner has no bearing on the issue in this appeal, which is whether the department is authorized under present law to establish an open season for the hunting of mourning doves. Should the amendment pass, a citizen who believes the open season and restrictions promulgated in Wis. Admin. Code § NR 10.01(l)(h) are unduly restrictive may he able to advance a constitutional argument regarding the "reasonableness" of the regulation, but the question of the rule's reasonableness is not at issue in this appeal.

       This amendment to article I, section 26 of the Wisconsin Constitution passed on April 1, 2003.

       I am not as convinced as the majority that muskies and white-tailed deer are analogous. While they are the state fish and state wildlife animal, they were not designated as Wisconsin's "fish of peace" and "deer of peace." And they have always been the object of anglers and hunters because of their culinary and trophy status. Doves have not achieved that status. I have yet to see a stuffed dove hanging on anyone's wall.


author: LUNDSTEN,

text:
    All City Communication Company, Inc. and Waukesha Tower Associates, Petitioners-Appellants, v. State of Wisconsin Department of Revenue, Respondent-Respondent.
    Court of Appeals

      No. 02-1201.

      Submitted on briefs October 11, 2002.

    Decided March 27, 2003.

    2003 WI App 77
    (Also reported in 661 N.W.2d 845.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of John R. Austin and Margaret M. Derus of Reinhart Boerner Van Deuren, S.C., Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief of F. Thomas Creeron III, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ, Dykman and Lundsten, JJ.
   LUNDSTEN,

¶ 1. J. The dispute in this case arises from an assessment by the Department of Revenue (DOR) of sales and use taxes against All City Communication Company, Inc. and Waukesha Tower Associates (collectively referred to as the Companies). The subject of the tax is a communications tower owned by Waukesha Tower and located on land leased by Waukesha Tower. All City rents space on the tower. The Companies petitioned the Wisconsin Tax Appeals Commission for a redetermination of the assessment of sales and use taxes. The commission concluded that DOR correctly imposed sales and use taxes. The Companies petitioned the circuit court for judicial review. The circuit court affirmed the commission. We likewise affirm the commission.

Background

¶ 2. In December 1985, Waukesha Tower leased rural land on which to erect a communications tower. The lease provides that Waukesha Tower may "occupy and use the [land] only for the operation of a 500 foot broadcast radio tower." The lease term was for ten years and provided that all "[i]mprovements hereafter erected or located on the" leased land "shall... remain the property of [Waukesha Tower]." The lease also stated that "[Waukesha Tower] shall have the right to remove any of the Improvements from the [leased land] at the end of the [lease] term." The lease permits the surrounding land to continue to be used as farmland.

¶ 3. Waukesha Tower constructed a communications tower on the site. The tower is built of steel, stands 480 feet tall, sits on a concrete foundation, and is secured by thirty guy wires which are also anchored in concrete. All City began renting space for its communications equipment on the tower in 1992.

¶ 4. DOR considered the communications tower to be personal property and thus subject to sales and use taxes. DOR issued a sales and use tax assessment against Waukesha Tower for the tax years 1986 through 1995. Waukesha Tower petitioned for redetermination, and DOR reaffirmed its decision. DOR also issued a - sales and use tax assessment against All City for the tax years 1992 through 1995 for its use of the tower. All City petitioned for redetermination, and DOR likewise reaffirmed its decision. All City and Waukesha Tower petitioned for review with the tax appeals commission (the commission).

¶ 5. The cases were combined in proceedings before the commission. After an evidentiary hearing, the commission found that the tower was specifically designed for the leased land; that the tower could be disassembled and either sold for scrap or reassembled at another site; and that a market exists for the sale and purchase of used towers. The commission affirmed the disputed assessments. The circuit court affirmed the commission.

Discussion

¶ 6. The Companies contend that the communications tower is a real property improvement, rather than personal property, and thus not subject to sales or use taxes. All retailers must pay sales tax on "the gross receipts from the sale, lease or rental of tangible personal property, including accessories, components, attachments, parts, supplies and materials, sold, leased or rented at retail in this state." Wis. Stat. § 77.52(1) (1993-94). "Tangible personal property" is defined as "all tangible personal property of every kind and description." Wis. Stat. § 77.5K20). In addition, a use tax is owed on "the use or consumption in this state of taxable services under s. 77.52 purchased from any retailer." Wis. Stat. § 77.53(1).

"Use" includes the exercise of any right or power over tangible personal property or taxable services incident to the ownership, possession or enjoyment of the property or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property by a lessee under a lease ....

Wis. Stat. § 77.51(22)(a). Therefore, if the tower is deemed "personal property," then Waukesha Tower is liable for sales tax on proceeds from renting or leasing space on the tower, and All City is liable for use tax on its rental of space on the tower.

Standard of Review

¶ 7. The Companies bear the burden of demonstrating that DOR's tax assessment is in error. Woller v. Department of Taxation, 35 Wis. 2d 227, 232, 151 N.W.2d 170 (1967).

¶ 8. We rely on fact finding by an agency unless such findings are "not supported by substantial evidence in the record." Wis. Stat. § 227.57(6) (2001-02). As explained above, the Companies do not argue that any fact finding by the commission is unsupported by the record. Thus, we address undisputed facts.

¶ 9. The application of a statute to undisputed facts is a question of law. Wisconsin Dep't of Transp. v. Office of Comm'r of Transp., 135 Wis. 2d 195, 198, 400 N.W.2d 15 (Ct. App. 1986). The parties dispute the level of deference we should grant to the commission's legal determination in this case. "In reviewing agency interpretations, this court has applied three distinct levels of deference: great weight, due weight, and de novo review." MCI Telecomms. Corp. v. State, 209 Wis. 2d 310, 317, 562 N.W.2d 594 (1997).

Great weight deference is appropriate once a court has concluded that: (1) the agency was charged hy the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute.

Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995).

Due weight deference is appropriate when the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court. The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question.

UFE Inc. v. LIRC, 201 Wis. 2d 274, 286, 548 N.W.2d 57 (1996). De novo review is appropriate if "the case is clearly one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented." Kelley Co. v. Marquardt, 172 Wis. 2d 234, 245, 493 N.W.2d 68 (1992).

¶ 10. The Companies argue that the commission should not be granted any deference, and particularly that the commission's decision is not entitled to great weight deference. The Companies argue that the standard of review should be de novo because (1) this is a case of first impression, given that the commission has not previously considered whether sales tax should apply to property adapted to and attached to leased land, (2) the statute at issue here is unambiguous, and (3) resolution of this case does not require the commission's special expertise.

¶ 11. We conclude that the commission should be accorded at least due weight deference. As the Companies concede, the legislature has charged the commission with administering the tax statutes at issue here. The commission has experience determining whether property is personal property for purposes of imposing sales and use taxes. Although the Companies correctly assert that the commission has not previously decided a case under these particular facts, we may still defer to the commission. "The correct test under Wisconsin law is whether [the agency] has experience in interpreting a particular statutory scheme, not whether it has ruled on precise, or even substantially similar, facts before." Town of Russell Volunteer Fire Dep't v. LIRC, 223 Wis. 2d 723, 733, 589 N.W.2d 445 (Ct. App. 1998). In addition, contrary to the Companies' assertion, the statute at issue here is ambiguous because reasonable minds could differ as to whether the tower is "personal property." See State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986) (holding that statute is ambiguous if reasonable persons could disagree as to its meaning).

¶ 12. Under "due weight" deference, "a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available." UFE Inc., 201 Wis. 2d at 286-87. Because we conclude that the commission's decision that the tower is "personal property" meets this standard, we need not decide whether that decision is entitled to great weight deference, as DOR contends. See Century-Tel of Midwest-Kendall, Inc. v. Public Serv. Comm'n, 2002 WI App 236, ¶ 18, 257 Wis. 2d 837, 653 N.W.2d 130.

Applicable Test

¶ 13. The statutes dictate that sales tax and use tax are owed on the purchase and use, respectively, of "tangible personal property." The statutes state that "tangible personal property" is "all tangible personal property of every kind and description." Wis. Stat. § 77.51(20). Wisconsin has employed a longstanding test to determine whether property was "personal property" or "real estate." See Taylor v. Collins, 51 Wis. 123, 127, 8 N.W. 22 (1881). The common law test provides:

" [w]hether articles of personal property are fixtures, i.e., real estate, is determined in this state, if not generally, by the following rules or tests: (1) Actual physical annexation to the real estate; (2) application or adaptation to the use or purpose to which the realty is devoted; and (3) an intention on the part of the person making the annexation to make a permanent accession to the freehold."

Wisconsin Dep't of Revenue v. A.O. Smith Harvestore Prods., Inc., 72 Wis. 2d 60, 67-68, 240 N.W.2d 357 (1976) (quoting Premonstratensian Fathers v. Badger Mut. Ins. Co., 46 Wis. 2d 362, 367, 175 N.W.2d 237 (1970)).

¶ 14. The Companies agree that this is the correct test, but argue that the commission did not apply this test in its decision. We conclude the commission did apply the Harvestore test. The commission stated the test and applied what has become the most important factor of the test:the intent factor. See Harvestore, 72 Wis. 2d at 68 (the intent factor "is regarded as the most important of the three factors"). The commission determined that the requisite intent to make the tower a permanent accession to the land was lacking.

¶ 15. We conclude that the commission's application of the Harvestore test, to determine whether property is "personal property" or real estate, was reasonable. The commission followed cases which had applied the test to taxation disputes, including Pulsfus Poultry Farms, Inc. v. Town of Leeds, 149 Wis. 2d 797, 812-14, 440 N.W.2d 329 (1989) (applying test to dispute over property tax), and Harvestore, 72 Wis. 2d at 66-68 (applying test to dispute over sales tax). We shall apply the Harvestore test to determine if the commission's conclusion was as reasonable as the Companies' opposing conclusion. See UFE Inc., 201 Wis. 2d at 286-87 ("[A] court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available.").

Applying the Harvestore Factors to this Case

¶ 16. When applying the Harvestore factors, we look to case law for guidance. We will not, however, rely on all the decisions cited by the parties. While many decisions distinguish real estate from personal property, they do so in various contexts. Borrowing language from one context and applying it to another poses a danger.

Questions of what fixtures pass as real estate arise principally in the following situations: [1] between vendor and vendee; [2] mortgagor and mortgagee; [3] landlord and tenant; [4] owner of life estate and re-mainderman; [5] seller under a conditional sales contract as against mortgagee and subsequent vendees and prior mortgagees; [6] with reference to taxation. Generally speaking the rule is very liberal with respect to the rights of mortgagees and vendees. A much stricter rule is applied as against a landlord in a contest between landlord and tenant. It is probable that no branch of the law is in greater confusion than the law of fixtures. Confusion is due in some degree at least to a failure to classify the cases. There is a constant tendency to carry over decisions in one classification and to apply them to cases in other classifications, ignoring the difference in the legal relation of the parties.

Thomsen v. Cullen, 196 Wis. 581, 598-99, 219 N.W 439 (1928). Thus, to preserve the classifications under which these cases arise, we shall apply the Harvestore factors, but relying only on those cases that apply the Harvestore test to taxation disputes: specifically, Pulsfus Poultry Farms, 149 Wis. 2d 797, and Harvestore, 72 Wis. 2d 60.

1. The Annexation Factor

¶ 17. The annexation factor asks whether the property has been "[a]ctual[ly] physical[ly] annex[ed] to the real estate." Harvestore, 72 Wis. 2d at 67 (citation omitted). We note that "annexation" in this context simply means attachment. Nonetheless, we will adhere to the use of the more archaic term because it is consistently used in this area of law.

¶ 18. Case law suggests two approaches to analyzing whether property is annexed to the real estate. One approach is that the annexation factor is merely a trigger — that is, property will not be considered real property unless it is annexed to the realty. This approach does not consider how substantial the annexation is. See, e.g., Pulsfus Poultry Farms, 149 Wis. 2d at 812-13 (commenting that disputed property is annexed, but not discussing the extent to which it is annexed).

¶ 19. The other approach considers not only whether the property is annexed, but also the extent to which the property is annexed. See, e.g., Harvestore, 72 Wis. 2d at 68 (considering "that the unit is so firmly attached to the ground that it can and has withstood the force of a tornado"). Neither of the tax cases squarely addresses this question, and each treats it differently. However, Pulsfus Poultry Farms, the most recent supreme court decision, takes the first approach, and we shall likewise consider this first factor as a trigger.

¶ 20. There is no dispute in this case that the tower is annexed to the real property, and so we turn' our attention to the second factor.

2. The Adaptation Factor

¶ 21. The second factor in the test considers the degree of "application or adaptation to the use or purpose to which the realty is devoted." Harvestore, 72 Wis. 2d at 67 (citation omitted). Cases suggest the test may be viewed two ways. Under the first approach, a court determines the degree to which the realty is well suited to the use or purpose of the property in question. See, e.g., id. at 68. Under this first view, we have difficulty discerning the logic behind the test and how it would further the goal of distinguishing real property from personal property. Under the second approach, a court determines the degree to which the property in question has been adapted to the realty in such a way that it loses its marketability and demonstrates an intent to make the property permanent. See, e.g., Puls fus Poultry Farms, 149 Wis. 2d at 813 (considering both whether the disputed property was adapted to the realty and whether it was adapted to the use to which the realty is devoted).

¶ 22. Puls fus Poultry Farms addresses this factor under both approaches. The parties here address this factor under the first approach. If we were to analyze the adaptation factor under the first approach, we would conclude both that the land is well suited for farming and, at the same time, it is equally well suited for use as a base for a broadcasting tower. Apart from the required engineering necessary to erect all broadcasting towers, the Companies do not allege that this tower has been adapted in some way unique to this particular plot of land. Ultimately, we conclude that regardless how we interpret the adaptation factor, it will not alter the outcome in this case because, under either view, both parties seem to have compelling arguments. Because neither side presents a stronger argument on this factor, factor three (intent) will overshadow any determination regarding factor two. Thus, we leave factor two unresolved and proceed to factor three.

3. The Intent Factor

¶ 23. The third factor considers whether there is an intent "to make a permanent accession to the freehold." Harvestore, 72 Wis. 2d at 67-68 (citation omitted). As stated above, the intent factor "is regarded as the most important of the three factors." Id. at 68. Cases distinguishing between personal property and real estate for purposes of taxation have viewed intent as:

"not the actual subjective intent of the landowner making the annexation, but an objective and presumed intention of that hypothetical ordinary reasonable person, to be ascertained in the light of the nature of the article, the degree of annexation, and the appropriateness of the article to the use to which the realty is put."

Id. at 69 (quoting Brown, Personal Property § 141, at 726 (2d ed. 1955)); see also Pulsfus Poultry Farms, 149 Wis. 2d at 813 (applying the hypothetical reasonable-person standard).

¶ 24. The Companies argue that, viewed objectively, the erection of a 480-foot-tall tower evinces an intent to permanently annex the property to the land. In addition, the Companies argue that the tower is permanently annexed to the land due to the substantial concrete foundations required to attach it to the land. DOR responds that the commission found that the tower is movable. Thus, according to DOR, the fact that the tower was erected on leased land is more important than the degree to which the tower is annexed to the land.

¶ 25. There is no dispute that the substantial foundations associated with a 480-foot tower mean moving the properties could not be done with ease. However, the commission determined that a market existed for the sale and purchase of used towers, and that the tower could be disassembled and reassembled at another site. Waukesha Tower had the right to remove the tower from the land, and the landowner had the right to terminate the lease at the end of the lease term. Despite the tower's large size, nothing in the Harvestore test suggests that size alone can manifest intent to create a permanent accession to the land. In view of the undisputed facts, we conclude that a reasonable person would not have intended the tower to be a permanent accession to the land.

¶ 26. We further conclude that the commission's determination that the tower is personal property was reasonable, and that no more reasonable conclusion exists. Accordingly, we affirm the commission's decision.

Whether All City Owes Sales and Use Tax

¶ 27. Because we conclude that the tower is "tangible personal property," we affirm the commission's decision imposing sales and use taxes against All City. By omitting any alternative argument, All City concedes that it is subject to sales and use tax in the event we conclude that the tower owned by Waukesha Tower is personal property.

By the Court. — Order affirmed.

       Waukesha Tower also constructed an adjacent equipment building on the site. However, the Companies' brief on appeal and evidence at the tax appeals hearing focus on the attributes of the tower. The Companies provide detailed information on whether the tower might be disassembled and moved. We do not have similarly detailed argument or record cites for the equipment building, and the Companies do not separately argue that the building, independent of the tower, is real property. In this decision, we omit separate mention of the equipment building and assume, as do the parties, that its status for tax purposes is tied to that of the tower.

       All City also rents space on similar towers across Wisconsin that are owned by companies other than Waukesha Tower. Eleven of these other towers are located on leased land. All City paid rental fees to Waukesha Tower and the other companies owning towers on leased land. DOR imposed sales and use tax on these rental fees. The commission's decision resolved All City's challenge to DOR's imposition of sales and use tax. On appeal, All City has waived its challenge to the imposition of sales and use tax on properties other than the tower owned by Waukesha Tower by failing in its appellate brief to challenge the commission's decision as it relates to these other properties. See Tatur v. Solsrud, 167 Wis. 2d 266, 269, 481 N.W.2d 657 (Ct. App. 1992) (issue not raised on appeal is deemed abandoned), aff'd, 174 Wis. 2d 735, 498 N.W.2d 232 (1993).

       Although the Companies' brief could be read as suggesting that these last two findings are disputed facts because the Companies allege that the tower could not be moved to another location, we will treat these findings as undisputed. The Companies have failed to argue that any of the commission's findings are unsupported by substantial evidence. See Schlieper v. DNR,
        188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (failure to dispute grounds relied upon by agency waives any challenge to those grounds).

       All references to the Wisconsin Statutes are to the 1993-94 version unless otherwise noted. The relevant statutes were unchanged during the period in which DOR assessed taxes against the parties.

       The parties do not suggest that the statute's use of the word "tangible" has any bearing on the appropriate test to use. Consequently, for purposes of this decision, we shall treat "tangible personal property" the same as "personal property."

       For reasons that are not apparent from either the commission's decision, the parties' briefs, or the record, the following administrative code section is not at issue. Wisconsin Admin. Code § Tax 11.63(5) provides, in part:
      Broadcasting Towers. Commercial broadcasting towers consti- ■ tuting the transmission antenna system of a radio or television station are deemed, for sales and use tax purposes, either real estate improvements if installed on land owned by the station or tangible personal property if installed on land owned by others.
      Although the provision is mentioned in DOR's brief, the commission's decision does not mention this code provision and DOR does not ask this court to rely on it. The Companies do not discuss the provision at all. Consequently, we express no opinion on the application this administrative code section has to the facts before us.

         See, e.g., Zignego Co. v. Wisconsin Dep't of Revenue, 211 Wis. 2d 819, 828-29, 565 N.W.2d 590 (Ct. App. 1997) (commission determined whether contractor's purchase of materials was for the construction of real property and thus subject to sales tax); Salmon v. Wisconsin Dep't of Revenue, Docket No. S-9178, Wis. Tax Reps. (CCH) ¶ 202-621 (Nov. 29, 1985; corrected Dec. 12, 1985) (determining whether lamp and fighting system retained their character as personal property and thus lamp cleaning service was subject to sales tax).

       The cases that consider the extent of the annexation do so with a view to whether it suggests that a reasonable person would think the annexation suggests permanence. This, of course, is the question asked by the third Harvestore factor: intent. Thus, in our view, the better approach is to treat the first factor as a trigger. If the property is annexed to real estate, then the analysis proceeds.