author: ANN WALSH BRADLEY, J. DAVID T. PROSSER, J.

text:
    In the Matter of the Guardianship of Judy K.: Dunn County, Petitioner-Appellant, v. Judy K., Respondent-Respondent.
    Supreme Court

      No. 00-3135.

      Oral argument March 7, 2002.

    Decided July 3, 2002.

    2002 WI 87
    (Also reported in 647 N.W.2d 799.)

      For the petitioner-appellant there were briefs and oral argument by Nicholas P. Lange, assistant corporation counsel.
    For the respondent-respondent there were briefs by Roy W. Froemming, Mitchell M. Hagopian and the Wisconsin Coalition for Advocacy, Inc., Madison, and
      James T. Parent and Burgfechtel & Parent, Menominee, and oral argument by Mitchell M. Hagopian.

    An amicus curiae brief was filed by Robert Theine Pledl and Schott, Bublitz & Engel, S.C., Brookfield, on behalf of the Wisconsin Coalition of Independent Living Centers.
    An amicus curiae brief was filed by Ellen J. Hen-ningsen, Madison, on behalf of the Elder Law Center of the Coalition of Wisconsin Aging Groups.
    An amicus curiae brief was filed by John J. Prentice, Andrew T. Phillips and Prentice & Phillips LLP, Milwaukee, on behalf of the Wisconsin Counties Association.
   ANN WALSH BRADLEY, J.

¶ 1. This case is before the court on certification pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000). Dunn County appeals from an order requiring the County to take affirmative steps to seek funding to support the cost of Judy K.'s protective placement and to develop community-based placement resources appropriate for Judy K. The County asserts that under Wis. Stat. § 55.06(9)(a), it cannot be required to contribute any funds to Judy K.'s placement costs. We disagree and conclude that the County is required to make an affirmative showing of a good faith, reasonable effort to find and fund an appropriate placement in accordance with the factors outlined in § 55.06(9)(a). Because the County failed to make such a showing at the time of the final hearing on placement, we affirm the circuit court's order.

I

¶ 2.

Judy K. is a 56-year-old developmental^ disabled woman. While living in a supervised apartment setting through Aurora Residential Alternatives, she began experiencing deterioration in her walking ability. She fell eleven times and sustained a severe head injury as a result of one of her falls. Dunn County filed a petition requesting that she be protectively placed.

¶ 3. Before the final hearing on the petition could be held, Judy K. was transferred to the Trempealeau County Health Care Center pursuant to an emergency placement order. At the hearing on permanent placement, the parties stipulated to a finding of the need for placement, and the circuit court received evidence in support of the finding. Judy K.'s adversary counsel, her guardian, and her guardian ad litem all indicated that issues remained with respect to whether the Trempea-leau County Health Care Center was the least restrictive environment appropriate for Judy K.

¶ 4. The circuit court found that as of the hearing date, the parties were unaware of appropriate alternatives for placement. Accordingly, the court ordered further assessment of Judy K. and the preparation of placement proposals. The court set a date for a continued hearing approximately two and one-half months later.

¶ 5. At the continued hearing, the County conceded that at least two of the proposed placement options were appropriate for Judy K. and less restrictive. However, its position was that Judy K. should remain at the Trempealeau County Health Care Center where there was no additional cost to the County. Judy K.'s guardian ad litem and adversary counsel advocated for a placement proposal that Judy K. reside in a Hudson facility through Community Living Specialists.

¶ 6. The circuit court reserved a final decision, ordered briefing, and conducted an evidentiary hearing approximately one week later. Dennis Ciesielski, the long-term support supervisor with the County's Department of Human Services, testified at the hearing.

¶ 7. Ciesielski explained that Judy K. received funding through the CIP IA program, and that when she was in a supervised apartment setting at Aurora, the cost was $125.57 per day, which represented a consolidation of county, state, and federal funds. The $125.57 included $125.00 of federal and state dollars. The remaining $0.57 was comprised of county funds and additional federal funds at a ratio of approximately 41% to 59%. Thus, the County's contribution was approximately $0.24 per day.

¶ 8. In addition, Ciesielski stated that the County was unwilling to place Judy K. in a setting that would cost more than $125.57 per day. He acknowledged that the Hudson facility currently was the only facility that would provide the least restrictive placement for Judy K. The average daily cost for the Hudson facility was $224.22 per resident. When asked if an appropriate placement for $125.57 was viable, Ciesielski responded that he could not say without further study.

¶ 9. The circuit court subsequently ordered that Judy K. be transferred to the Hudson facility. In addition, the court required the County to take affirmative steps to seek additional federal, state, local, or other funding to support the cost of Judy K.’s placement. Finally, the court ordered the County to develop community-based placement resources appropriate for Judy K. and others on a County waiting list.

¶ 10. The County appealed, arguing that Judy K. should have been permanently placed in the Trempea-leau County Health Care Center because no community placements were available within the limits of state and federal funds and county funds required to be appropriated to match state funds. Section 55.06(9)(a) provides in part: "The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual." Based on this statutory language, the County asserted that the amount of County funds required under the statute for Judy K.'s placement was zero.

¶ 11. The court of appeals certified the County's appeal to this court. It interpreted the circuit court's decision to place three affirmative obligations on the County: (1) to exhaust all potential additional sources of federal funding to support placement in the least restrictive environment; (2) to exhaust all potential sources of increased state funding; and (3) to affirmatively seek to develop additional community-based placements within the constraints of state and federal funding.

¶ 12. In addition, the court of appeals noted that § 55.06(9)(a) recently was amended by 1995 Wis. Act 92 and that "several other appeals had been commenced in [the court of appeals] challenging protective placements on the ground that they exceed the spending limits authorized by 1995 Wis. Act 92." We accepted certification, and the County renews its arguments here.

II

¶ 13. The question we address is whether in a protective placement pursuant to § 55.06(9)(a), a county may be required to make affirmative efforts to find and fund an appropriate placement. This requires the interpretation and application of a statute, a question of law subject to independent appellate review. Waukesha County v. Steven H., 2000 WI 28, ¶ 16, 233 Wis. 2d 344, 607 N.W.2d 607. The legal backdrop for this question is set by a decision of this court and subsequent legislative action.

¶ 14. In D.E.R. v. La Crosse County, 155 Wis. 2d 240, 242, 455 N.W.2d 239 (1990), the court addressed whether the circuit court erred in failing to order placement for two developmentally disabled persons in the least restrictive environment, as required by Wis. Stat. § 55.06(9)(a) (1987-88), on the sole ground of lack of funding. The court concluded that the legislature did not intend to limit a county board's duty to fund protective placements under ch. 55 to the funds the county receives in state and federal funding and the funds the county appropriates to match state funds. Id.

¶ 15. In support of its conclusion, the court observed that there was no provision in ch. 55 that required the circuit court to consider the availability and source of funds when placing an individual in the least restrictive environment. D.E.R., 155 Wis. 2d at 248. Rather, the court explained, "the factors enumerated in sec. 55.06 for consideration in making protective placement, although not all inclusive, relate to the individual only — the needs of the person to be protected and the level of supervision — and do not refer to appropriations by the county board of supervisors." Id.

¶ 16. Subsequently, the legislature amended several provisions in ch. 55 and Wis. Stat. ch. 51 to include language that provides a limitation on a county's financial responsibility for certain services under these chapters. See 1995 Wis. Act 92. Before it was amended by Act 92, § 55.06(9) (a) (1987-88) provided, in part, as follows:

When ordering placement, the court, on the basis of the evaluation and other relevant evidence shall order placement through the appropriate board designated under s. 55.02 or an agency designated by it. Placement shall be made in the least restrictive environment con sistent with the needs of the person to be placed. Factors to be considered in making protective placement shall include the needs of the person to be protected for health, social or rehabilitative services and the level of supervision needed.

(Emphasis added.) Section 55.06(9)(a) now provides, in part:

When ordering placement, the court, on the basis of the evaluation and other relevant evidence shall order the appropriate board specified under s. 55.02 or an agency designated by it to protectively place the individual. Placement by the appropriate board or designated agency shall be made in the least restrictive environment consistent with the needs of the person to be placed and with the placement resources of the appropriate board specified under s. 55.02.
Factors to be considered in making protective placement shall include the needs of the person to be protected for health, social or rehabilitative services; the level of supervision needed; the reasonableness of the placement given the cost and the actual benefits in the level of functioning to be realized by the individual; the limits of available state and federal funds and of county funds required to be appropriated to match state funds; and the reasonableness of the placement given the number or projected number of individuals who will need protective placement and given the limited funds available.
The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual.

(Emphasis added.)

¶ 17. The County asserts that under the amended version of the statute, it cannot be required to contribute any funds to the cost of Judy K.'s placement. Thus, under the County's position, its financial obligation to fund the daily cost of protective placements like Judy K.'s is zero, and even the $0.24 per day it previously provided was gratuitous.

¶ 18. We reject the County's interpretation of the statute because it cannot account for the language in § 55.06(9)(a) referring to county funds that are "in addition to its funds that are required to be appropriated to match state funds." Also, the County's interpretation fails to account for the multi-factor approach to placement in the statute and the individual liberty interests that are recognized by the statutory scheme.

¶ 19. When the legislature inserted language explaining that a county cannot be required to provide funding "in addition to its funds that are required to be appropriated to match state funds," it must have intended that county funds "required to be appropriated to match state funds" refer to something. Section 55.06(9)(a) (emphasis added). The County maintains that the legislature was referring only to community aids funding.

Community aids are state and federal funds which are distributed by the Department of Health and Family Services (DHFS) to counties for the provision of human services in two broad, statutorily-defined areas: (1) social services for low-income persons and children in need of protection and services; and (2) services for persons with needs relating to mental illness, substance abuse or developmental disabilities.

¶ 20. The County, however, is able to offer no explanation of how it is that county dollars directed to community aids funds are "required to be appropriated to match state funds" any more than are county dollars that might be used to match funds available through the CIPIA program. During oral argument, the County conceded that county money directed toward community aids is "required to be appropriated to match state funds" in the sense that if a county does not appropriate community aids monies, it foregoes state and federal community aids matching funds. Other matching-type funding programs may be required similarly in the sense that there is a "carrot" but no "stick." Accordingly, we reject the County's argument that the language in § 55.06(9)(a) referring to county funds "required to be appropriated to match state funds" must be intended to refer only to community aids funds.

¶ 21. In addition, the County's interpretation of the statute fails to account for the multi-factor statutory scheme and the individual liberty interests at stake that this scheme recognizes. Section 55.06(9)(a) as amended lists several factors to be considered in making a protective placement, many of which implicate financial considerations. Unquestionably, § 55.06(9)(a) now indicates that the availability of funds must be considered in an individual protective placement decision, and the statute also provides a limitation on county financial liability.

¶ 22. Nonetheless, the statute retains the previous version's factors of "the needs of the person to be protected" and "the level of supervision needed." Also, it retains the mandate that placement "shall be made in the least restrictive environment consistent with the needs of the person to be placed," although it now states that the placement should be "consistent with ... the placement resources of the appropriate board ... ."

¶ 23. The statute's continued recognition of the concept of least restrictive environment and its concern with the needs of the placed individual recognize the individual liberty interests at stake. A protective placement has many effects on an individual, including "loss of liberty, adverse social consequences, [and] intrusion on personal security." State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 81, 362 N.W.2d 104 (1985). In reaching its holding that protectively placed individuals have a constitutional right to periodic judicial review of the placement, the court in Watts emphasized the inherent problems in allowing county financial interests to he the only factor in placement. The court explained:

[T]he responsible protective services agency may be influenced in its decision making by the economics of the placement. If the person remains in the nursing home, this is cost free to the county. If the person is in a county operated nursing home, there may be pressure not to remove a person due to possible loss of revenue for the facility. If the person is sent from a nursing home, there may be a necessity for the state and county to purchase community services.

Watts, 122 Wis. 2d at 78. The court's holding in Watts was reaffirmed just last term in County of Dunn v. Goldie H., 2001 WI 102, ¶ 28, 245 Wis. 2d 538, 629 N.W.2d 189.

¶ 24. The consequences of the County's arguments run contrary to the multi-factor approach to placement prescribed by § 55.06(9)(a) and to the liberty interests that must, according to Watts, be shielded from incentives pressuring counties to make financial considerations the sole factor in placement. The County interprets the statute to provide essentially that it has no responsibility to provide funds. Its interpretation disregards "the needs of the person to be protected" and disregards "the level of supervision needed." The County's interpretation of the statute would also allow it to provide zero funds without regard to what is the "least restrictive environment."

¶ 25. Under the County's position, the multi-factor approach in the statute is transformed into a one-factor approach in which that one factor is that the County be free not to contribute any funds to a particular placement. Moreover, in cases where all possible placement alternatives would cost some county funds, the court would be unable to order any placement whatsoever.

¶ 26. Although we reject the County's interpretation of § 55.06(9)(a), we recognize that the language of the statute indicates that the legislature intended that the availability of funds be considered in protective placement decisions. The purpose of the statutory language that the County "may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds" is clear: it provides a limitation on county financial liability. The statute gives the County a defense against being compelled in an individual placement to contribute funds "in addition to its funds that are required to be appropriated to match state funds."

¶ 27. Our goal must be to implement the legislative intent while also preserving the statutory scheme and continuing to recognize the liberty interests of protectively placed individuals. The County's interpretation of the statute does not achieve this goal. However, the circuit court's decision that the County take affirmative steps to seek additional funds and to develop an appropriate community-based placement for Judy K. does. In order to ensure that counties utilize available funds but are not forced to contribute funds in addition to required funds, we agree with the circuit court that the counties must bear the burden of showing whether funds are available and whether appropriate placements may be developed within the limits of required funds.

¶ 28. We therefore determine that in protective placements pursuant to § 55.06(9)(a), counties must make an affirmative showing of a good faith, reasonable effort to find an appropriate placement and to secure funding to pay for an appropriate placement. Put more succinctly, the county must show it has made a good faith, reasonable effort to find and fund an appropriate placement.

¶ 29. The determination of what is an appropriate placement depends upon the application of all the factors outlined in § 55.06(9)(a). At the same time, the statute provides a limitation on a county's ultimate financial liability: "The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual."

¶ 30. The find and fund standard will help ensure that protective placements comport with the multi-factor statutory scheme, which recognizes the needs and rights of placed individuals as well as the significant role that counties play in the protective placement system. Placing the burden on the counties to show a good faith, reasonable effort to find and fund also makes sense because the counties' substantial responsibility in the protective placement system means they are the repository of much of the information and other resources pertinent to funding and placement.

¶ 31. In contrast, individuals subject to protective placement are not in a position to know what funding sources might be available. Those individuals do not know whether appropriate placements may be located, created, or funded through a good faith, reasonable effort. Similarly, the court making the protective placement determination has no inherent way of knowing whether appropriate placements or funds are available.

¶ 32. An affirmative obligation on the County to show efforts to find and fund also serves to recognize the liberty interests at stake and embodied in the statutory scheme. It honors the dictates of Watts, and ensures that counties do not make decisions based solely on financial considerations when placement needs can be met through a good faith, reasonable effort. At the same time, however, the find and fund standard recognizes that resources are not limitless and that counties carry a substantial burden in meeting the needs of individuals subject to protective placements.

¶ 33. Indeed, this case serves as an illustration that the legislature's intent to provide a limitation on county financial liability while recognizing the needs and interests of those who are protectively placed can be well served by an affirmative obligation on the counties to find and fund. At oral argument, counsel for the County explained that the County ultimately was able to obtain additional personal care funds for Judy K. through Medical Assistance. Counsel further explained that even though Judy K. was in a community setting pursuant to court order, "the cost is actually quite low at this time." The annual cost to the County was estimated by counsel to be $600.

¶ 34. In contrast, the record before us does not support a determination that the County, at the time of the final hearing on permanent placement, had made a good faith, reasonable effort to find and fund an appropriate placement for Judy K. At that hearing, Dennis Ciesielski, the County's long-term support supervisor with its human services department, gave testimony suggesting that the County's decision with regard to Judy K.'s placement was based solely on financial considerations:

Q Mr. Ciesielski, the one — the $125.57 — or $125.57 per diem rate, it's my understanding that's the amount that the County will not pay greater than, correct?
A Correct.
Q At the present time anyway.
A That is correct.
Q Okay. And that number was established solely based upon the amount it had paid prior to the protective placement?
A Prior to her placement at the health care center?
Q Yes.
A Yes.
Q And that's the only basis upon which that 125.57 number was reached, true?
A That is the figure we reached based on our fiscal situation, yes. Our decisions are based on our Department's financial situation.

¶ 35. Ciesielski testified similarly upon questioning by the Court, also seeming to indicate that the County had a blanket rule to deny funding regardless of individual circumstances or the potential for funding in individual cases:

THE COURT: So going back to that 125.57 cent per day that the County is willing to make available for Judy K.'s placement, is essentially what you're telling me that the County at this time is either unwilling or unable to utilize County dollars, except to the extent. they might have to deal with this 57 cents for the least ' restrictive placement of Judy K.?
THE WITNESS: Yes, your honor.
THE COURT: And is that a determination you have made?
THE WITNESS: Based on the guidance and direction given to us by our County Board.
THE COURT: And they have directed you essentially not to spend County funds on placements in CIP 1 A cases?
THE WITNESS: Among other cases, your Honor.

¶ 36. Finally, Ciesielski explained the efforts the County had made to fund Judy K.'s placement consisted only of general lobbying of its representatives in the legislature for increased state appropriations:

THE COURT: What affirmative efforts have been made by the Department since July of this year?
THE WITNESS: I guess I would have to say, your Honor, it comes down to, for want of a better term, politics in that it is approaching our legislatures [sic] to help them recognize the long waiting list that exists in Dunn County, among many other counties, and that we only have three funding sources, and that recognizing the position of Dunn County, it is helping the State hopefully to understand that to eliminate the waiting list there is a need for the State to take a greater responsibility in providing funding to meet the needs of the individuals on our waiting fist.
THE COURT: Okay. But I'm just talking about the federal government now. And I guess my question is, have any efforts been made to attempt to, with regard to Judy, expand the potential federal funding to support her community placement? Yes or no, since July of this year.
THE WITNESS: We have — I'm not sure if I fully understand. But if you're saying have we directed a very specific effort to the State or federal government on behalf of Judy K. and Judy K. alone, I would say no.

¶ 37. Based on this and other testimony by Ciesielski, in addition to other evidence, the circuit court made a number of findings of fact. Those findings included that:

Appropriate, less restrictive community-based placements for Judy K[ ] could be developed and available through independent providers in the community, that meet the ward's needs, at a daily rate of not in excess of $125.57 but the Department has not made efforts to develop such sites.
The Department has not taken any affirmative steps since July of 2000, to secure additional federal, state or county funds to support a placement of Judy K[ ] in the least restrictive placement possible, in the community, in excess of the authorized $125.57.
There is no indication in the record the Department is currently undertaking any efforts to seek an appropriate, least restrictive placement for Judy K[ ] in the community at a rate of $125:57.

¶ 38. We defer to the circuit court's findings of fact unless they are unsupported by the record and therefore clearly erroneous. Schreiber v. Physicians Ins. Co., 223 Wis. 2d 417, 426, 588 N.W.2d 26 (1999). Here, the court's findings are well supported by the record, and the evidence leads to the conclusion that the County failed to show that it made a good faith, reasonable effort to find and fund an appropriate placement for Judy K.

¶ 39. Because we reject the County's interpretation of § 55.06(9)(a) to provide that it need not contribute any funds to Judy K.'s placement, and because we also conclude that the County failed to show that it made a good faith, reasonable effort to find and fund an appropriate placement for Judy K. at the time of the final hearing on placement, we do not grant the primary relief the County seeks: a remand to the circuit court for entry of an order that Judy K. be placed at the Trempealeau County Health Care Center.

¶ 40. Nonetheless, we must briefly address the breadth of the circuit court's order in light of our decision. In addition to ordering that Judy K. be transferred to a community-based setting and that the County take affirmative steps to seek additional funding to support the cost of Judy K.'s placement, the court ordered the County to develop community-based placement resources appropriate for others on a County waiting list.

¶ 41. Section 55.06(9)(a) calls for an individualized determination of placement. Nothing in that statute gives the circuit court authority to order action on the placement of other individuals who are not before it. To the extent the court's order required the County to act on cases other than Judy K.'s, it went beyond the issue before it. The only placement before the court was Judy K's. Accordingly, although we affirm the circuit court's order, we limit its effect to Judy K.'s case.

I — I HH hH

¶ 42. In sum, we conclude that the County is required under § 55.06(9)(a) to make an affirmative showing of a good faith, reasonable effort to find and fund an appropriate placement in accordance with the factors outlined in the statute. Because the County failed to make such a showing at the time of Judy K.'s placement hearing, we affirm the circuit court's order. However, we limit the effect of the order to Judy K., the case that was before the circuit court.

By the Court. — The order of the circuit court is affirmed.

DAVID T. PROSSER, J.

¶ 43. (dissenting). Many of our citizens need protective services. Children who have been abused, neglected, or abandoned by parents need protective services. The aged infirm, incapacitated mentally or physically by the degenerative process of old age, need protective services. Men and women who are mentally ill, dependent on alcohol or drugs, or homeless and without food need protective services.

¶ 44. Developmentally disabled persons, defined in Wis. Stat. § 55.01(2) as individuals "having a disability attributable to mental retardation, cerebral palsy, epilepsy, autism or another neurological condition closely related to mental retardation," are especially needy. Their disabilities make them vulnerable to exploitation, and their conditions usually continue indefinitely. When the developmentally disabled are so totally incapable of providing for their own care or custody as to create a substantial risk of serious harm to themselves or others, they are subject to involuntary placement under Chapter 55. Wis. Stat. § 55.06.

¶ 45. Historically, human needs have outpaced government resources. Human services must compete for funding with other worthy causes such as education, public safety, and the natural environment. In this milieu, citizens organize to promote their preferences. When they do not achieve their goals, they sometimes turn to the judiciary, hoping to win in court what they have been unable to secure in the legislature. Vincent v. Voight, 2000 WI 93, 236 Wis. 2d 588, 614 N.W.2d 388, is a case in point.

¶ 46. Advocates for the developmentally disabled are among those who have used litigation to gain their objectives. Twelve years ago, these advocates attempted to compel additional expenditures by Wisconsin eounties for the developmentally disabled. Their vehicle was a case from La Crosse County in which a circuit judge had declined to order the transfer of two developmentally disabled persons from the Northern Wisconsin Center to facilities in the community. D.E.R. v. La Crosse County, 155 Wis. 2d 240, 455 N.W.2d 239 (1990). The circuit court concluded that the county had fulfilled its statutory duty by funding protective placements with moneys the county had received from the state and federal governments and with moneys the county had appropriated as matching funds. Id. at 242.

¶ 47. This court responded with a historic decision. The issue, we said, was whether the circuit court erred in refusing to order placements in the least restrictive environments under Wis. Stat. § 55.06(9)(a) "on the sole ground that the county had fulfilled its statutory duty by funding protective placements with moneys the county receives from the federal and state governments and with moneys the county appropriates as matching funds." Id. at 246. The court responded that "the legislature did not intend to limit the county board's duty to fund protective placements under ch. 55 to the funds the county receives in state and federal funding and the funds the county appropriates to match state funds." Id. at 242. The court explained that:

The legislature has not expressly limited the county's responsibility in ch. 55 to make placements to the least restrictive environment to funds available from state or federal sources and county matching funds. Nothing in ch. 55 indicates that the funding limitations of secs. 51.42 and 51.437 apply to protective placements under sec. 55.06.

Id. at 252 (emphasis added).

¶ 48. The court's opinion carefully analyzed the existing statutes and turned aside the county's statutory interpretation.

¶ 49. The county relied on a phrase — "to the maximum degree of feasibility" — contained in the legislative declaration of policy for Chapter 55. It argued that this language meant that practical financial considerations limit the circuit court's discretion to order placements in the least restrictive environment. Id. at 247. The court disagreed, asserting that: "We cannot find a legislative statement in sec. 55.001 or any other provision in ch. 55 that requires the circuit court to consider the availability and source of funds when placing an individual in the least restrictive environment." Id. at 248.

¶ 50. The county argued that the funding restraints under Chapter 51 apply with equal force to protective placements made pursuant to Chapter 55. Id. at 250. The court disagreed. It observed that sections 51.42(3)(ar)4 and 51.437(4m)(a) both used the phrase "within the limits of available state and federal funds and of county funds appropriated to match state funds," id. at 250-51, but that "neither ch. 51 nor ch. 55 expressly applies the ch. 51 funding limitations to ch. 55 protective placements." Id. at 251. "Nothing in ch. 55 indicates that the funding limitations of secs. 51.42 and 51.437 apply to protective placements under sec. 55.06." Id. at 252.

¶ 51. Responding to the county's fiscal arguments, the court acknowledged that the county and its taxpayers may suffer a significant financial burden when the state mandates county action and fails to provide funds adequate to carry out the mandate. Id. at 253-54. "The bounties must, however, look to the legislature, not the courts, for relief when the fiscal burdens created by legislative mandates become onerous." Id. at 254 (emphasis added). "We conclude that the legislature did not intend to limit the county board's duty to fund protective placements in the least restrictive environment under ch. 55 to the funds the county receives in state and federal funding and the funds the county appropriates in matching funds." Id. at 255.

¶ 52. In 1995 the legislature enacted 1995 Wis. Act 92 (the Act) in direct response to the D.E.R. decision. The Legislative Reference Bureau Analysis of 1995 Assembly Bill 244, which became the Act, refers to the D.E.R. case by name and states that "the bill prohibits requiring a county to provide funding in addition to its funds required to match state funds, to protectively place a person." 1995 Wis. Act 92 addresses the D.E.R. decision point by point.

¶ 53. First, the Act firmed up the funding limitations in Chapter 51, strengthening the provisions in Wis. Stat. §§ 51.42(3)(ar)4 and 51.437(4m)(a) and adding new language to Wis. Stat. §§ 51.001(1), 51.42(1)(b), 51.437(4)(a), and 51.61(1)(e).

¶ 54. Second, the Act borrowed the exact limiting language cited by this court from Chapter 51 and placed it in three different sections of Chapter 55: Wis. Stat. §§ 55.001, 55.06(9)(a), and 55.045. One of these sections is the "Declaration of Policy" referenced in the D.E.R. opinion. Wis. Stat. § 55.001.

¶ 55. Third, the Act amended the specific provision litigated in D.E.R., Wis. Stat. § 55.06(9)(a). This subsection now reads in relevant part:

Factors to be considered in making protective placement shall include the needs of the person to be protected for health, social or rehabilitative services; the level of supervision needed; the reasonableness of the placement given the cost and the actual benefits in the level of functioning to be realized by the individual; the limits of available state and federal funds and of county funds required to be appropriated to match state funds; and the reasonableness of the placement given the number or projected number of individuals who will need protective placement and given the limited funds available. The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual.

Wis. Stat. § 55.06(9)(a) (emphasis added). The emphasized portion of the subsection is the language added by 1995 Wis. Act 92.

¶ 56. These provisions echo the precise concerns articulated in the D.E.R. decision. In short, counties took their cue from this court and looked to the legislature for relief. The legislature responded to the court's opinion almost word for word and provided the relief requested.

¶ 57. The legislative history of 1995 Assembly Bill 244 supports the plain, unambiguous language of the Act. Opponents of the proposed funding limitations offered amendments to the bill seeking to insert a reasonableness standard in lieu of a funding limitation. These amendments were rejected.

¶ 58. The majority opinion professes not to understand the intended effect of the legislature's clear language. It devises a new rule: "[T]he County is required to make an affirmative showing of a good faith, reasonable effort to find and fund an appropriate placement in accordance with the factors outlined in § 55.06(9)(a)." Majority op. at ¶ 1. It opines that Dunn County failed to make such a showing at the time of the final hearing on placement, and thus affirms the circuit court's order requiring the County to spend more money on protective placements than "the limits of available state and federal funds and of county funds required to be appropriated to match state funds." Id, at ¶¶ 1,42. It fudges on the proposition that the sentence, "The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual," is a defense against a court order that requires spending more money.

¶ 59. What does "a good faith, reasonable effort to... fund an appropriate placement in accordance with the factors outlined in § 55.06(9)(a)" mean? In Wis. Stat. § 55.06(9)(a), the sentence limiting a county's duty to provide funding is not a listed factor; it is a separate sentence. If the sentence is treated as a factor, it is the dominant factor. If it is not treated as a factor, it must be treated as a condition that overrides the factors.

¶ 60. Even the sentence in subsection (9) that calls for placement "in the least restrictive environment consistent with the needs of the person to be placed" is not unconditional. It reads "consistent with the needs of the person to be placed and with the placement resources of the appropriate board specified under s. 55.02." Wis. Stat. § 55.06(9) (emphasis added). The primacy of the funding limitation could not be more plain.

¶ 61. Counties are creatures of the legislature. State ex rel. Conway v. Elvod, 70 Wis. 2d 448, 450, 234 N.W.2d 354 (1975). "In governmental matters, the county is simply the arm of the state." Dane Co. v. H&SS Dep't, 79 Wis. 2d 323, 330, 255 N.W.2d 539 (1977). It exists "in large measure to help handle the state's burden of political organization and civil administration." Id. If the state has plenary power to direct counties what to do, it must also have power to limit their responsibilities. It exercised that power in 1995 Wis. Act 92.

¶ 62. State and federal governments provide most of the funding for protective services for persons with developmental disabilities. The principal funding sources are community aids and the waiver programs related to Medical Assistance.

¶ 63. Community aids are the largest source of state aid to counties. See Yvonne M. Arsenault, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 48, Community Aids 1 (2001) [hereinafter Community Aids]. Counties received $304.9 million in community aids in fiscal year 2000. Id. By contrast, the state's other large source of aid to counties, the shared revenue program, totaled only $189.7 million in that year. Id. Community aids are distributed to the counties through the Wisconsin Department of Health and Family Services (DHFS), to provide services in two broad categories: (1) social services for low-income persons and children in need; and (2) services for persons with mental illness, substance abuse problems, or developmental disabilities. Id. County allocations are determined by a three-factor statutory formula that takes into consideration a county's needs, an urban-rural factor, and the county's ability to pay. Id. at 2. In 2000 the statutes required counties to provide matching funds in the amount of 9.89 percent for the basic county allocation of community aids. Wis. Stat. § 46.495(1)(d); Community Aids, supra, at 6.

¶ 64. Most Wisconsin counties appropriate more money for protective services than they are required to appropriate under state law. Community Aids, supra, at 6. Dunn County is no exception. Dunn County's "over-match" for calendar years 1994-1999 is shown as follows:

1994: 1,056,547
1995: 1,010,081
1996: 1,255,055
1997: 1,054,709

1998: 1,169,693

1999: 2,192,249

¶ 65. In 1999 Dunn County's overmatch of $2,192,249 exceeded the $1,859,550 allocation from the state. Id. at 17, 22. Dunn County spent approximately $13.5 million on health and human services in 1999. Wisconsin Department of Revenue, County and Municipal Revenues and Expenditures 1999 3 (2001), available at http://www.dor.state.wi.us/html/stats.html. This subject area was the largest single item in the county budget. Id. The county's 1999 overmatch of $2,192,249 represented more than 6 percent of its total budget. Id. No amount of overmatch spending will secure a greater allocation of community aids for a county than the legislature has budgeted. Wis. Stat. § 46.40(2).

¶ 66. Medical Assistance waiver programs are another major source of assistance to counties for protective services. See Yvonne M. Arsenault and Richard Megna, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 50, Services for Persons with Developmental Disabilities 9 (2001) [hereinafter Services for Persons with Developmental Disabilities]. Medical Assistance is a program that provides health services to low-income persons. See Rachel Carabell and Richard Megna, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 43, Medical Assistance and Badger-Care 1 (2001) [hereinafter Medical Assistance and BadgerCare]. "Medicaid," as it is otherwise known, is administered by DHFS within strict federal guidelines regarding eligibility, types of services, payment levels and administration. Id.

¶ 67. The state has secured a series of federal waivers to develop innovative methods of delivering or paying for medical assistance services. Id. at 44. For instance, CIP IA and CIP IB are two "community integration programs" that help people with developmental disabilities. Id. at 45. The CIP IA program funds services for people who are relocated from state centers for the developmentally disabled. See Services for Persons with Developmental Disabilities, supra, at 9. The CIP IB program funds services for people relocated or diverted from nursing homes and intermediate care facilities to community-based programs. Id. The state pays a 41 percent match to obtain federal Medicaid dollars for these programs and then reimburses the counties for their costs of community integration services. Id. at 10. Counties have the option to step forward and put up additional match money from community aids or local taxes to secure federad funds. See Medical Assistance and BadgerCare, supra, at 45. This occurs in more than two-thirds of the CIP IB cases. Id.

¶ 68. Clearly, a county may appropriate additional money for protective services and may acquire additional federal funds as a result. But Chapter 55 does not require a county to do so. "The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual." Wis. Stat. § 55.06(9)(a).

¶ 69. As a practical matter, a county may not be able to locate additional funds when a circuit court issues an order for a less restrictive placement, unless it diverts money from other programs. Not all community aids dollars are spent on developmentally disabled persons. In the future, the biggest source of additional funding for the developmentally disabled may be money diverted from other persons in need. These spending priorities ought to be decided by policymakers in other branches of government, not by the courts.

¶ 70. Thousands of Wisconsin citizens need protective services. This case is not about the legitimacy of these needs. This case is about the power of state courts to force additional county spending for human services when a county has fulfilled all its obligations under state law.

¶ 71. In my view, supporters of the developmentally disabled must look to the legislature, not the courts, for the relief they seek. Because the majority appears to decide otherwise, I respectfully dissent.

¶ 72. I am authorized to state that Justices JON E WILCOX and DIANE S. SYKES join this dissent.

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

       Dunn County appealed from an order of the Circuit Court for Dunn County, William C. Stewart, Judge.

       Judy K. previously had been the subject of a protective placement that was vacated because she was at the time living in the least restrictive environment capable of meeting her needs.

       The Legislative Fiscal Bureau's Informational Paper #50, titled "Services for Persons with Developmental Disabilities" and dated January, 2001, provides useful background on the CIP IA program. Page nine of the Paper explains as follows:
      Federal law authorizes the U.S. Department of Health and Human Services, Health Care Financing Administration to waive certain MA [Medical Assistance] requirements to enable states to provide home- and community-based services to persons who would otherwise require care in an institution. In Wisconsin, there are six such programs that operate under four MA waivers: (1) the community integration program IA (CIP IA); (2)... .
      According to the Legislative Fiscal Bureau's Informational Paper #43, "Medical Assistance and BadgerCare," at page 44, the four waiver programs "are intended to reduce the number of persons who would receive long-term care services in nursing homes or institutions."

       Ciesielski in his testimony referred to figures of 42% and 58%, although Legislative Fiscal Bureau sources cited by Judy K. indicate that the ratio is 41% to 59%. For purposes of our review, the precise rate is not important.

       Shortly after D.E.R. v. La Crosse County, 155 Wis. 2d 240, 455 N.W.2d 239 (1990), the court of appeals held that a county's obligation to place developmentally disabled individuals in the least restrictive environment applied even where the type of community placement sought did not already exist. See Fond du Lac County v. J.G.S., 159 Wis. 2d 685, 687, 465 N.W.2d 227 (Ct. App. 1990).

       The excerpted portions of Wis. Stat. § 55.06(9)(a) appear in one continuous paragraph in the official version of the statutes, but we have broken that paragraph into several for ease of reading.

       The Legislative Fiscal Bureau's Informational Paper #48, "Community Aids," dated January, 2001, begins with this explanation:

       The legislature amended other provisions similarly in Wis. Stat. ch. 55. Section 55.001 now provides that protective services:
      should, to the maximum degree of feasibility under programs, services and resources that the county board of supervisors is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds, allow the individual the same rights as other citizens, and at the same time protect the individual from exploitation, abuse and degrading treatment.
      Similarly, Wis. Stat. § 55.045 now provides:
      The appropriate county department designated under s. 55.02 shall, within the limits of available state and federal funds and of county funds required to be appropriated to match state funds, provide for the reasonable program needs of persons who are protectively placed or who receive protective services under this chapter, including reasonable expenses for the evaluations required by s. 55.06(8).

       The facts and posture of this case do not require that we determine all possible sources of funds encompassed by this statutory language. Thus, we need not determine today exactly what funds are "required to be appropriated to match state funds." This question, however, is answered implicitly by the dissent. The dissent assumes, in apparent agreement with the County, that the language "funds that are required to be appropriated to match state funds" applies only to county funds required to match community aids. It is by making this assumption that the dissent can reach its incorrect conclusion that our decision requires the County "to spend more money. . . than 'the limits of available state and federal funds and of county funds required to be appropriated to match state funds.'." Dissent at ¶ 58.
      While it is laudable that most counties provide community aids "overmatch," see dissent at ¶ 64, this does not answer the question of what funds are "required to be appropriated to match state funds" in an individual protective placement. The dissent apparently agrees with the County that its funding obligations in any given placement may be zero because it has made the only required match via community aids funds.

       Because we affirm the circuit court's order to the extent it provided relief specific to Judy K., we need not reach her arguments as to the constitutionality of § 55.06(9)(a) or its interaction with the Americans with Disabilities Act.
      In addition, we need not remand this case for a determination on placement. The parties at oral argument acknowledged that Judy K. was presently in a community placement pursuant to the circuit court's order. Judy K.'s placement, like all ch. 55 placements, is subject to annual review. See State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 84, 362 N.W.2d 104 (1985).

       The legislature has assigned to county boards the primary responsibility for the care of the mentally ill, developmentally disabled, and substance abusers residing in their counties. Wis. Stat. § 51.42(1)(b).

       The Legislative Reference Bureau analysis specifically points out that under the court's decision in D.E.R. v. La Crosse Co., 155 Wis. 2d 240, 455 N.W.2d 239 (1990), a county could be "required to provide funding in addition to federal, state and matching county funds" in order to protectively place a person. See Legislative Reference Bureau Drafting File for 1995 Wis. Act 92, Analysis by the Legislative Reference Bureau of 1995 A.B. 244 at 1.

       In a letter calling for amendments, the Wisconsin Coalition For Advocacy states: "AB 244 makes cost to counties an

        overriding factor and makes all the other considerations (including overall cost to taxpayers) secondary." Legislative Reference Bureau Drafting File for 1995 Wis. Act 92, Letter from Wisconsin Coalition For Advocacy to Senator Carol Buettner dated September 5,1995. Senator Gwendolynne S. Moore introduced numerous amendments suggested by advocacy groups concerned with the strong limitations on funding. The legislature was fully aware that the cost to counties was the dominant consideration and passed the bill in its original form. See Legislative Reference Bureau Drafting File for 1995 Wis. Act 92, Bill History for A.B. 244.

        See Rachel Cissne, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 50, Financial Assistance to Counties for Human Services 23 (1997).

         Id.

        See Rachel Carabell, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 49, Financial Assistance to Counties for Human Services 18 (1999).

         Id.

         See Yvonne M. Arsenault, Wisconsin Legislative Fiscal Bureau, Informational Paper No. 48, Community Aids 17 (2001).

        Id.


source: Caselaw Access Project

author: DIANE S. SYKES, J. JON E WILCOX, J.

license: Public Domain

text:
    Tri-Tech Corporation of America, Plaintiff-Respondent, v. Americomp Services, Inc., Defendant, James Schmidt, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 00-3195.

      Oral argument February 5, 2002.

    Decided July 3, 2002.

    2002 WI 88
    (Also reported in 646 N.W.2d 822.)

      For the defendant-appellant-petitioner there were briefs by Dayten P. Hanson, Milwaukee, and oral argument by Dayten P. Hanson.

    For the plaintiff-respondent there was a brief by Robert J. Welcenbach, Michael J. Widmann and Welcen-bach & Widmann, Milwaukee, and oral argument by Robert J. Welcenbach.

   DIANE S. SYKES, J.

¶ 1. The issue in this case is whether the treble damages remedy of Wis. Stat. § 895.80 (1999-2000) is available for civil theft by contractor under Wis. Stat. § 779.02(5), and if so, whether it requires proof of the elements of the criminal offense under Wis. Stat. § 943.20(l)(b), including criminal intent. We hold that it is, and it does.

¶ 2. By its terms, Wis. Stat. § 779.02(5) makes misappropriation of contractor trust funds punishable as a theft under Wis. Stat. § 943.20. Wisconsin Statute § 895.80, which provides a civil treble damages remedy to victims of certain intentional property crimes, includes Wis. Stat. § 943.20 as one of the predicate criminal offenses for which the remedy is available. The elements of criminal theft by contractor under Wis. Stat. §§ 943.20(l)(b) and 779.02(5) include specific criminal intent, to-wit, that the defendant knowingly retained possession of or used contractor trust funds without the owner's consent, contrary to his authority, and with intent to convert such funds for his own use or the use of another.

¶ 3. Here, the circuit court granted summary judgment awarding treble damages to the plaintiff, and the court of appeals affirmed. Because the plaintiff did not present prima facie evidence for summary judgment on the required elements of the cause of action, including specific criminal intent, we reverse.

I — i

¶ 4. In the fall of 1999, the defendant Americomp Services, Inc. was hired by The Frantz Group to install a computer network at The Frantz Group's offices in Mequon. Americomp in turn hired the plaintiff TriTech Corporation of America to provide some of the necessary materials, supplies, and services for the job. The contract was performed, The Frantz Group paid Americomp, and Tri-Tech billed Americomp $27,807.95 for its work on the subcontract. Americomp did not pay Tri-Tech's invoice, and Tri-Tech sued.

¶ 5. Americomp and James Schmidt, Americomp's president and sole shareholder, were named as defendants. They filed an answer admitting that Tri-Tech had provided materials, supplies, and services for The Frantz Group computer network installation in the sum of $27,807.95. They also admitted receipt and nonpayment of Tri-Tech's invoice, although they denied the allegations in the complaint regarding demand for and refusal of payment, as well as the specific allegations regarding Tri-Tech's theft by contractor treble damages cause of action.

¶ 6. Tri-Tech moved for summary judgment, initially against Americomp only. Americomp and Schmidt then filed an amended answer claiming a set off in the amount of $5,700.71. The summary judgment motion was scheduled to be heard on June 19, 2000. Three days before the hearing, on June 16, 2000, Americomp effectuated mail service of a brief in opposition to the motion, together with an affidavit from Schmidt. In the affidavit, Schmidt stated that The Frantz Group did not own the property where the computer network installation had been performed. He also stated that the work did not constitute an "improvement" to the property, and denied that Americomp was a "prime contractor" within the meaning of the statute.

¶ 7. The circuit court granted summary judgment against Americomp on its contract liability, in the amount of $22,107.24, which took into account the set off. Tri-Tech reserved its claims against Schmidt personally.

¶ 8. A few weeks after summary judgment on the contract claim was granted, Tri-Tech moved for summary judgment against Schmidt, seeking the treble damages remedy under Wis. Stat. § 895.80 in the amount of $83,423.85. In support of the motion, TriTech submitted Schmidt's answers to interrogatories, in which Schmidt again denied that the money paid to Americomp by The Frantz Group was for "improvements," and also stated that The Frantz Group did not own the property where the work was performed. However, among Schmidt's interrogatory answers was the following:

The money received from The Frantz Group was placed into the business manager account at Port Washington State Bank. Port Washington Statement [sic] Bank had an assignment of that receivable, and it also has a general business security agreement encumbering all of the assets of AmeriComp, including the accounts receivable.

¶ 9. Schmidt did not serve or submit any new affidavits, discovery materials or a brief in response to the summary judgment motion. He argued at the motion hearing that the treble damages cause of action under Wis. Stat. § 895.80 did not apply, because the statute does not list Wis. Stat. § 779.02, the civil theft by contractor statute, as one of the predicate offenses that would trigger a cause of action under the statute. Alternatively, he argued that the statute requires an intentional violation, and there was a factual dispute on the issue of intent. Finally, Schmidt argued that the work performed by Tri-Tech did not constitute an "improvement" as that term is defined in Chapter 779, because it did not provide a "permanent benefit" to the property.

¶ 10. The lawyers for both sides made cursory reference to the Schmidt affidavit filed on the earlier motion, but did not argue any factual matters contained in the affidavit or otherwise base their arguments on it. Rather, both sides focused on the legal issue of whether a violation of the civil theft by contractor statute was eligible for the treble damages remedy in the first place, and whether the computer network cabling constituted a permanent improvement to property for purposes of Wis. Stat. § 779.02(5).

¶ 11. The Waukesha County Circuit Court, the Honorable J. Mac Davis, granted Tri-Tech's motion for summary judgment against Schmidt. The court concluded that the treble damages remedy of Wis. Stat. § 895.80 was available, because that statute specifically encompassed the criminal theft statute, Wis. Stat. § 943.20, which in turn was "cross-referenced" in the civil theft by contractor statute, Wis. Stat. § 779.02(5). The court also concluded that the computer network cabling was an "improvement" for purposes of Wis. Stat. § 779.02(5), because "the parties concede it's computer cabling, it's run into the building, complete absence of any contrary evidence, the only reasonable conclusion is that this is similar to electrical wiring or other wiring. ..." Finally, the circuit court held that the "intentional requirement doesn't require an intention to commit a criminal act, just requires that the conduct be intentional." The court granted the summary judgment against Schmidt in the amount of $70,055.02.

¶ 12. Schmidt appealed, reiterating the arguments he had made in the circuit court. He also argued, for the first time, that The Frantz Group was not a property "owner" within the meaning of Wis. Stat. § 779.02(5).

¶ 13. The court of appeals affirmed. The court first concluded that the issue of whether The Frantz Group was a property "owner" had been waived. The court noted that Schmidt had not filed any affidavits in response to the summary judgment motion against him, and said he was not entitled to rely upon his earlier affidavit already in the record from the summary judgment motion against Americomp. Tri-Tech Corp. of America v. Americomp Services, Inc., 2001 WI App 191, ¶ 14, 247 Wis. 2d 317, 633 N.W.2d 683. The court also invoked the waiver rule that disallows arguments raised for the first time on appeal. Id. at ¶ 13.

¶ 14. The court of appeals also held as a matter of law that computer network cabling constituted an improvement providing a permanent benefit to property within the meaning of Wis. Stat. §§ 779.01(2)(a) and 779.02(5). Id. at ¶ 19.

¶ 15. Finally, the court of appeals held that the treble damages remedy of Wis. Stat. § 895.80 was available for civil theft by contractor under Wis. Stat. § 779.02(5), because the latter statute makes violations punishable under the criminal theft statute, Wis. Stat. § 943.20, which in turn is specifically enumerated as one of the predicate offenses in the treble damages statute. Id. at ¶¶ 24-27. The court noted, however, that "there is a difference between criminal and civil theft by contractor. The difference is that the criminal statute requires wrongful intent and the civil statute does not." Id. at ¶ 27.

¶ 16. Accordingly, the court of appeals held that proof of criminal intent is required in a treble damages action under Wis. Stat. § 895.80, although only to the civil burden of proof. Id. at ¶¶ 27-29. In defining the criminal intent required, however, the court of appeals was not entirely consistent.

¶ 17. On the one hand, the court of appeals approved the circuit court's characterization of the intent element as requiring only proof of general intent: "The trial court in our case put it nicely. It said that the 'intentional requirement doesn't require an intention to commit a criminal act, just requires that the conduct be intentional.' The trial court was correct." Id. at ¶ 32. On the other hand, the court of appeals cited the criminal intent definitions found in State v. Blaisdell, 85 Wis. 2d 172, 176, 270 N.W.2d 69 (1978), and State v. Hess, 99 Wis. 2d 22, 28, 298 N.W.2d 11 (Ct. App. 1980), both of which set forth a requirement of specific criminal intent, that is, proof that the defendant retained contractor trust funds without the owner's consent, contrary to his authority, and with intent to convert those funds to his own use or the use of another. Id. at ¶¶ 31-34.

¶ 18. In any event, the court of appeals held that Tri-Tech had established a prima facie case on criminal intent, because a refusal to deliver contractor trust funds on demand is prima facie evidence of criminal intent under Wis. Stat. § 943.20(1)(b). Id. at ¶¶ 35-36. Because Schmidt had not submitted any affidavits in response to the motion, the court of appeals concluded that he had failed to join issue on the criminal intent element, and affirmed the summary judgment against him. ¶¶ 37-38. We accepted review.

HH hH

¶ 19. This case requires us to interpret Wis. Stat. §§ 895.80, 779.02 and 943.20, which is a question of law subject to de novo review. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 10, 244 Wis. 2d 758, 628 N.W.2d 833. We must also decide whether summary judgment was appropriately granted, which we do independently, although benefiting from the lower courts' analyses. Yanke v. Carson, 2000 WI 74, ¶ 10, 236 Wis. 2d 257, 613 N.W.2d 102.

¶ 20. Wisconsin Statute § 895.80 was enacted in 1995 as part of the budget bill, and provides a treble damages remedy to victims of certain intentional property crimes, most of which involve some form of theft by fraud:

Property damage or loss. (1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50, 943.61, or 943.76 ....
(2) The burden of proof in a civil action under sub. (1) is with the person who suffers damage or loss to prove his or her case by a preponderance of the credible evidence.
(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:
(a) Treble damages
(b) All costs of investigation and litigation that were reasonably incurred.
(4) A person may bring a civil action under sub. (1) regardless of whether there has been a criminal action related to the loss or damage under sub. (1) and regardless of the outcome of any such criminal action.

See 1995 Wis. Act 27, § 7223m.

¶ 21. A statute creating a treble damages remedy is regarded as punitive rather than remedial, and is strictly construed. John Mohr & Sons, Inc. v. Jahnke, 55 Wis. 2d 402, 411, 198 N.W.2d 363 (1972). The legislature's adoption of the lowest civil burden of proof — "preponderance of the credible evidence" — is a departure from the common law rule that intentional fraud cases are subject to the intermediate burden of "clear, satisfactory and convincing evidence." See Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 529 N.W.2d 905 (1995); Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437 (1980); Kuehn v. Kuehn, 11 Wis. 2d 15, 30, 104 N.W.2d 138 (1960).

¶ 22. The statute lists only criminal offenses as the predicates for the treble damages remedy. The civil theft by contractor statute, Wis. Stat. § 779.02(5), is nowhere mentioned. However, as both the circuit court and court of appeals correctly noted, the civil theft by contractor statute provides that a misappropriation of contractor trust funds is punishable under the criminal theft statute, Wis. Stat. § 943.20, and criminal theft is one of the offenses enumerated in Wis. Stat. § 895.80.

¶ 23. The civil theft by contractor statute provides that funds paid by a property owner to a contractor for improvements to the property constitute a trust for the benefit of those having claims due and owing for labor or materials on the contract:

(5) THEFT BY CONTRACTORS. The proceeds of any mortgage on land paid to any prime contractor or any subcontractor for improvements upon the mortgaged premises, and all moneys paid to any prime contractor or subcontractor by any owner for improvements, constitute a trust fund only in the hands of the prime contractor or subcontractor to the amount of all claims due or to become due or owing from the prime contractor or subcontractor for labor and materials used for the improvements, until all the claims have been paid, and shall not be a trust fund in the hands of any other person. The use of any such moneys by any prime contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute and then only to the extent of the amount actually in dispute, have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor or subcontractor of moneys so misappropriated and is punishable under s. 943.20. If the prime contractor or sub-contractor is a corporation, such misappropriation also shall be deemed theft by any officers, directors or agents of the corporation responsible for the misappropriation.

Wis. Stat. § 779.02(5) (emphasis added).

¶ 24. This statutory language makes clear that a misuse of contractor trust funds can form the basis of a prosecution for criminal theft by contractor under Wis. Stat. § 943.20. Because Wis. Stat. § 943.20 is one of the offenses that qualifies for the treble damages remedy of Wis. Stat. § 895.80, we agree with the court of appeals' conclusion that treble damages are available for theft by contractor under Wis. Stat. § 779.02(5), provided, however, that the elements of both the civil and the criminal statutes are proven, albeit to the civil preponderance burden of proof. Stated differently, the basis of liability for criminal theft by contractor is a violation of the trust fund provisions of Wis. Stat. § 779.02(5), plus the criminal intent required by Wis. Stat. § 943.20(1)(b). See State v. Wolter, 85 Wis. 2d 353, 362-63, 270 N.W.2d 230 (Ct. App. 1978) (the criminal theft statute is the conduit through which the civil theft by contractor statute becomes operative criminally, and the difference between the two is criminal intent).

¶ 25. Wisconsin Statute § 943.20(1)(b) makes it a crime for a trustee to intentionally use, transfer, conceal, or retain trust funds without the beneficiary's consent, contrary to the trustee's authority, and with intent to convert such funds to the trustee's own use or the use of another:

943.20 Theft. (1) ACTS. Whoever does any of the following may be penalized as provided in sub. (3):
(b) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money, security, instrument, paper or writing without the owner's consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner. A refusal to deliver any money or a negotiable security, instrument, paper or other negotiable writing, which is in his or her possession or custody by virtue of his or her office, business or employment, or as trustee or bailee, upon demand of the person entitled to receive it, or as required by law, is prima facie evidence of an intent to convert to his or her own use within the meaning of this paragraph....
(3) PENALTIES. Whoever violates sub. (1):
(c) If the value of the property exceeds $2,500, is guilty of a Class C felony.

Wis. Stat. § 943.20(l)(b) and (3)(c) (emphasis added).

¶ 26. The elements of the offense of criminal theft by contractor are: "(1) the defendant acted as a prime contractor; (2) the defendant received money for the improvement of land from the owner or a mortgagee; (3) the defendant intentionally used the money for purposes other than the payment of bona fide claims for labor or materials prior to the payment of such claims; (4) the use was without the owner or mortgagee's consent, and contrary to the defendant's authority; (5) the defendant knew the use was without consent and contrary to his authority; and (6) the defendant used the money with the intent to convert it to his own use or the use of another." Hess, 99 Wis. 2d at 28 (emphasis added); see also Blaisdell, 85 Wis. 2d at 176.

¶ 27. Schmidt argues that summary judgment was improper because of material factual disputes on several of the required elements of the claim, including the element of criminal intent, the matter of The Frantz Group's ownership of the property in question, and the issue of whether the computer network cabling was an "improvement." We agree.

A. Intent.

¶ 28. The criminal offense requires intent to defraud, but intent is almost always proven circumstantially, and "may be inferred from a defendant's conduct." Blaisdell, 85 Wis. 2d at 179. Indeed, the statute itself sets forth one acceptable method of proof: a defendant's refusal to pay a claim upon demand to one entitled to be paid out of trust funds is prima facie evidence of the defendant's intent to convert the trust funds to his own use. Wis. Stat. § 943.20(1)(b).

¶ 29. However, while the intent element required for conviction of the criminal offense — and, more importantly here, for the treble damages remedy under Wis. Stat. § 895.80 — may be inferred from circumstantial evidence, it is nevertheless a specific intent requirement, and it is the plaintiffs burden to prove it. Accordingly, the court of appeals' endorsement of the circuit court's legal conclusion that only general intent is required (the statute "just requires that the conduct be intentional") was clearly incorrect.

¶ 30. Indeed, it is specific criminal intent that makes the civil offense punishable criminally: "some additional element of culpability, whether it be denominated as wrongful, criminal, fraudulent, felonious, or wrongfully fraudulent, must be shown to sustain a criminal conviction for theft by contractor." Hess, 99 Wis. 2d at 28-29 (explaining the language in Blaisdell that intent to defraud is required for the criminal offense). Accordingly, to sustain a cause of action for treble damages under Wis. Stat. § 895.80 for theft by contractor under Wis. Stat. § 943.20, the plaintiff must prove, by a preponderance of the credible evidence, the elements of the criminal offense, including that the defendant knowingly retained, concealed, or used contractor trust funds without the owner's consent, contrary to his authority, and with intent to convert such funds to his own use or the use of another.

¶ 31. Here, the answer and amended answer filed by Americomp and Schmidt specifically denied the allegations in the complaint pertaining to the treble damages cause of action, admitting only nonpayment of the invoice, for which summary judgment had earlier been granted against Americomp on its contract liability. Issue had therefore been joined, and it was TriTech's obligation to demonstrate a prima facie case for summary judgment on all the elements of criminal theft by contractor — including the requisite specific criminal intent element — before the burden would shift to Schmidt on summary judgment. See Wis. Stat. § 802.08(2) and (3). More specifically, Tri-Tech was required to establish, by way of admissions, affidavits, or some other evidentiary material, that Schmidt knowingly retained or used contractor trust funds, contrary to his authority, and with intent to convert such funds to his own use or the use of another.

¶ 32. It did not do so. Instead, it relied entirely on the pleadings, in which Schmidt had denied the allegations in the treble damages cause of action; the earlier judgment on the contract claim against Americomp, which was insufficient by itself to establish liability for the criminal offense and therefore the treble damages claim; and Schmidt's interrogatory answers, which did not contain factual admissions sufficient to establish a prima facie case on criminal intent, even by way of the evidentiary method specifically approved in the statute, that is, proof of refusal to pay contractor funds on demand of one entitled to receive them. The interrogatories were silent as to demand and refusal to pay, and Tri-Tech did not submit any affidavits or any other evidentiary material in support of its summary judgment motion. That Schmidt's interrogatory answers admitted depositing the payment from The Frantz Group into a bank account encumbered by a security interest is insufficient by itself to establish a prima facie case of specific criminal intent.

¶ 33. Accordingly, the court of appeals should not have construed Schmidt's failure to submit an affidavit in response to the summary judgment motion as a failure to join issue. Schmidt had joined issue in his answer and amended answer, and because Tri-Tech failed to establish a prima facie case on the element of specific intent necessary to sustain the treble damages claim, summary judgment should not have been granted. See Jones v. Sears Roebuck & Co., 80 Wis. 2d 321, 326-27, 259 N.W.2d 70 (1977) (the failure of opponent of summary judgment to submit counter-affidavits does not entitle the movant to summary judgment if movant's submissions do not contain sufficient evidentiary facts to establish prima facie case); see also Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 655-56, 158 N.W.2d 387 (1968) (when supporting evidence is based upon ultimate facts and not evidentiary facts, the plaintiff has not made out a case for summary judgment).

B. Ownership

¶ 34. Tri-Tech was also required to establish a prima facie case that The Frantz Group was an "owner" of property within the meaning of Wis. Stat. § 779.02(5). Wisconsin Statute § 779.01(2)(c) defines "owner" for purposes of the construction lien law as "the owner of any interest in land who, personally or through an agent, enters into a contract, express or implied, for the improvement of the land."

¶ 35. As noted above, Schmidt's answer and amended answer denied the allegations in the treble damages cause of action, and so issue was joined on all elements of the claim. Again as noted above, the only item of evidentiary value submitted by Tri-Tech in support of its motion for summary judgment against Schmidt was Schmidt's interrogatory answers, in which he specifically stated that "The Frantz Group does not own this said property." Schmidt's affidavit, submitted in opposition to the earlier summary judgment motion, also contained the same factual representation.

¶ 36. The court of appeals held that Schmidt had waived the issue of whether The Frantz Group was an "owner" within the meaning of the statute because he did not submit any opposing affidavits in response to the summary judgment motion, contrary to Wis. Stat. § 802.08(2), and because he did not argue the ownership issue in the circuit court. It is true that Schmidt did not submit any new affidavits in response to the summary judgment motion, although both parties mentioned the earlier Schmidt affidavit in their arguments. We know of no requirement that an affidavit already of record must be filed a second time in order to be entitled to consideration.

¶ 37. The waiver, if there was one, was in the failure to specifically argue the ownership issue in the circuit court. We note, however, that Tri-Tech did not establish a prima facie case on The Frantz Group's ownership of the property, as it was required to do. Indeed, the only evidence in the record — Schmidt's interrogatory answers and his earlier affidavit— averred that The Frantz Group did not own the property.

¶ 38. In any event, we have already concluded that summary judgment was improperly granted; accordingly, this case will be returned to the circuit court for further proceedings. While Schmidt may have waived The Frantz Group's ownership of the property as an appellate issue by failing to argue it before the circuit court on the summary judgment motion, the waiver will have no consequence on remand.

C. Improvement

¶ 39. Tri-Tech was also required to establish a prima facie case that the contract in question was for an "improvement" to land within the meaning of the statute. Wisconsin Statute § 779.01(2)(a) defines "improvement" as "any building, structure, erection, fixture, demolition, alteration, excavation, filling, grading, tiling, planting, clearing or landscaping which is built, erected, made or done on or to land for its permanent benefit." Citing Wisconsin Department of Revenue v. A.O. Smith Harvestore Products, Inc., 72 Wis. 2d 60, 67-68, 240 N.W.2d 357 (1976), Schmidt argues that the summary judgment record fails to establish a prima facie case that the computer network cabling at issue in this case constituted an "improvement."

¶ 40. The A.O. Smith Harvestore case sets forth the test for determining whether particular articles of property constitute fixtures: ". . Whether 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.'" Id. at 67-68 (citing Premonstratensian Fathers v. Badger Mut. Ins. Co., 46 Wis. 2d 362, 367, 175 N.W.2d 237 (1970)). The statutory definition of "improvement" for purposes of construction lien and trust fund rights requires a "permanent benefit" to the land. We also stated in A.O. Smith Harvestore, 72 Wis. 2d at 73, that "[w]here a tenant installs fixtures, there is a presumption that they are temporary and that he intends to remove them at the end of the lease period."

¶ 41. The circuit court and the court of appeals construed the "improvements" issue as a question of law. It can be, but usually is not, and is not in this case. We stated in A.O. Smith Harvestore that "the application of [the test for fixtures] is normally a question of fact" but can become a question of law "when only one reasonable conclusion may be drawn from the evidence." Id. at 68.

¶ 42. We cannot address the question of whether only one reasonable conclusion can be drawn from the evidence, for the simple reason that there is no evidence in the record as to whether the computer network cabling comprised an "actual physical annexation" to the property, was an "application or adaptation to the use or purpose" of the property, and was intended to be permanent. In addition, Schmidt's interrogatory answers, which are of record, state as a matter of fact that The Frantz Group did not own the property in question, giving rise at least to an inference that its computer network was not intended to be permanent at that location. Accordingly, for this additional reason, summary judgment was improperly granted.

¶ 43. In summary, we conclude that the treble damages remedy of Wis. Stat. § 895.80 is available for civil theft by contractor under Wis. Stat. § 779.02(5), by operation of Wis. Stat. § 943.20. To sustain a cause of action for treble damages, however, the elements of both statutes, including the specific criminal intent element required by Wis. Stat. § 943.20, must be proven. Because Tri-Tech failed to establish a prima facie case on the element of specific criminal intent, and because there is a factual dispute about whether the computer network cabling is an "improvement" for purposes of Wis. Stat. § 779.02(5), summary judgment was improperly granted. We reverse the court of appeals and remand the case to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause remanded for proceedings consistent with this opinion.

JON E WILCOX, J.

¶ 44. (concurring in part, dissenting in part). I agree with the court's determination on summary judgment in this case. However, I disagree with the court's conclusion on the availability of treble damages. Under the plain language of the statute, treble damages are not available for a civil action for theft by contractor under Wis. Stat. § 779.02(5) (1999-2000). For that reason, I respectfully dissent.

¶ 45. This case presents us with a question of statutory interpretation. When we interpret a statute, our primary purpose is to discern the intent of the legislature. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 14, 245 Wis. 2d 1, 628 N.W.2d 893. To determine this intent, we look first to the plain language of the statute. Id. If the statutory language is clear and unambiguous, we do not look beyond the statutory language to ascertain its meaning. Id.

¶ 46. The statutory language here is straightforward. Wisconsin Stat. § 895.80 states:

(1) Any person who suffers damage or loss by reason of intentional conduct... that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61, or by reason of intentional conduct... that is prohibited under s. 943.201, has a cause of action against the person who caused the damage or loss.
(3) If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following:
(a) Treble damages.

This provision clearly lists the statutory violations under which treble damages -will be available. The statute at issue here, Wis. Stat. § 779.02, as the majority points out, is clearly not among them. Majority op. at ¶ 22.

¶ 47. Under the rule of expressio unius est exclu-sio alterius, when the legislature specifically enumerates provisions in a statute, this court presumes that the legislature intended to exclude other non-included provisions. Georgina G. v. Terry M., 184 Wis. 2d 492, 512, 516 N.W.2d 678 (1994). When enacting a statute, the legislature is also presumed to act with knowledge of existing statutes. H.F. v. T.F., 168 Wis. 2d 62, 69, 483 N.W.2d 803 (1992). Therefore, we must infer that the legislature was aware of the cause of action for theft by contractor under Wis. Stat. § 779.02, and refused to include it in the treble damages statute.

¶ 48. As the majority points out, the treble damages statute is punitive rather than remedial, and it must therefore be strictly construed. Majority op. at ¶ 21 (citing John Mohr & Sons, Inc. v. Jahnke, 55 Wis. 2d 402, 411, 198 N.W.2d 363 (1972)). This further leads me to the conclusion that we cannot read a cause of action for treble damages into the statute where the legislature did not choose to include it. Thus, I would conclude that the treble damages remedy is not available for a civil action for theft by contractor.

¶ 49. For the foregoing reasons, I respectfully dissent.

       Unless otherwise noted, all further references to the Wisconsin Statutes will be to the 1999-2000 version of the statutes.

       This was late under Wis. Stat. § 802.08(2), which requires affidavits in opposition to summary judgment to be served at least five days before the hearing.

       The amount demanded constituted the original amount claimed by Tri-Tech — $27,807.95—trebled.

       The judgment is triple the damages of the original judgment against Americomp ($22,107.24), plus attorney's fees and costs ($3,311.00).

       We note that the issue of intent is generally not readily susceptible of determination on summary judgment. 'We have stated — '. . . the issue of... intent is not one that properly can be decided on a motion for summary judgment. Credibility of a person with respect to his subjective intent does not lend itself to be determined by affidavit." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 190, 260 N.W.2d 241 (1977)(citing Doern v. Crawford, 30 Wis. 2d 206, 214, 140 N.W.2d 193(1966)); see also Green Spring Farms v. Spring Green Farms Assoc. Ltd., 172 Wis. 2d 28, 41, 492 Wis. 2d 392 (Ct. App. 1992).

       Schmidt argues that because Tri-Tech did not file any hen notice or construction lien, he was not on notice that this was a construction contract, requiring him to hold payments from the property owner in trust for the benefit of those with claims for labor and materials provided on the contract. However, in Wisconsin Dairies Cooperative v. Citizens Bank & Trust, 160 Wis. 2d 758, 776, 467 N.W.2d 124 (1991), we held that "neither the language of sec. 779.02(5), Stats., the legislative history, the policies behind the statute, nor our prior decisions support a conclusion that the legislature intended to terminate the trust fund if the subcontractor failed to preserve its lien rights. To the contrary, these factors demonstrate that the legislature intended to provide two independent and alternative remedies for protecting subcontractors — the construction lien provisions, see, e.g., sec. 779.01(3), and the trust fund statute."

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.