text:
    State of Wisconsin ex rel. Willie C. Simpson, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Court of Appeals

      No. 01-0008.

      Submitted on briefs September 12, 2001.

    Decided December 20, 2001.

    2002 WI App 7
    (Also reported in 640 N.W.2d 527.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Willie C. Simpson, pro se.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Kathleen M. Ptacek, assistant attorney general.
    Before Dykman, Deininger and Lundsten, JJ.

       Petition to review denied 3-19-02.

   DYKMAN, J.

¶ 1. Willie Simpson appeals from an order affirming a decision of the Division of Hearings and Appeals (DHA) to revoke Simpson's probation. DHA made its decision after finding that Simpson had violated conditions of his probation by having sexual contact with LeAnn H., a six-year-old girl. Simpson argues that his right to due process was violated because, at his revocation hearing, the administrative law judge failed to make a specific finding of good cause for not allowing him to cross-examine LeAnn, as required by Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). He also contends that DHA erred when it concluded that he was not entitled to sentence credit for the time he spent on electronic monitoring.

¶ 2. We agree with Simpson that the ALJ erred in failing to make a good cause finding. However, we conclude the error was harmless because good cause exists, its basis is found in the record, and its finding is implicit in the ALJ's ruling. Further, Simpson is not entitled to sentence credit for the time he spent on electronic monitoring because he was not then in "custody" within the meaning of Wis. Stat. § 973.155 (1997-98). We therefore affirm.

Background

¶ 3. A jury convicted Willie Simpson of second-degree sexual assault of a child in 1997. The circuit court imposed and stayed a fifteen-year prison sentence and placed Simpson on probation for five years. As a condition of probation, the court required Simpson to serve one year at the House of Corrections, with four months to be served at the House of Corrections and the remainder on electronic monitoring. While on probation, Simpson was prohibited from, among other things, violating any state or federal statutes, and having any contact with minors without prior approval of his agent.

¶ 4. On September 21, 1999, police arrested Simpson and the State charged him with sexual assault of a child. Soon after, the Department of Corrections recommended that Simpson's probation be revoked. DOC alleged that Simpson had sexual contact with LeAnn H., whose birth date is July 12, 1993, from January 1998 to September 1999.

¶ 5. At the revocation hearing, LeAnn's mother, Tracy H., testified that Simpson and his wife, Francesca, had provided childcare for LeAnn on occasion while Tracy was working. According to Tracy, LeAnn would stay at the Simpsons while they were watching LeAnn. One day after being picked up from school by Tracy, LeAnn complained to her mother that the janitor at school was teasing her. Tracy told LeAnn, "If anyone ever messes with you, you have to tell mama." In response, LeAnn told her mother: "I'm sorry. I've been keeping a secret from you." When Tracy asked her what the secret was, LeAnn told her that Simpson had "messed with her." LeAnn further explained that, when she spent the night at the Simpsons, Simpson would take off her underwear and "rub[] his stuff on her stuff."

¶ 6. Police officer Cheryl Lehnert also testified. Officer Lehnert works in a specialized unit dealing with sexual assaults. She interviewed LeAnn after Tracy called the police on September 21, 1999. In her police report, Lehnert wrote that she asked LeAnn "if anyone had ever touched her private parts." LeAnn stated that "Will" had touched her, and that he had done it when she "spent the night over there," both when she was five and six years old. LeAnn told Lehnert that "Will" would wake her up while she was sleeping, take off her underwear, and "put his 'private parts' against her 'private parts' and would start humping her."

¶ 7. In her testimony, Lehnert stated that she confirmed that "Will" meant Willie Simpson by asking LeAnn to identify, while driving in the car, where "Will" lived, and that LeAnn correctly pointed to Simpson's home without any coaching. Lehnert also testified that she had interviewed LeAnn alone, outside the presence of Tracy.

¶ 8. Finally, Francesca Simpson testified that LeAnn had spent the night at her and Simpson's home on three occasions. Francesca spoke to both Tracy and LeAnn the night Tracy reported the assault to the police. Francesca testified that Tracy told her on the phone that she believed "somebody [is] messin' with my daughter, but I don't think it was Will [Simpson]." Francesca also testified that LeAnn told her that Simpson had "touched" her on two occasions, one night when the power went out and while Francesca was in the shower, and again when LeAnn and Simpson's daughter were sleeping in a tent made out of blankets. When Francesca asked LeAnn, "Did anybody make you say this?" Francesca testified that LeAnn took a long pause and then responded, "What, Mommy, what?" Neither LeAnn nor Simpson testified at the hearing.

¶ 9. In a written decision, the ALJ found that Simpson violated his probation by having sexual contact with LeAnn. The ALJ based this finding on Tracy's testimony. The ALJ found "the disclosures by L[eAnn] H. to her mother, Tracy H[.], to be reliable." The ALJ then concluded that there were no appropriate alternatives to revocation. He granted Simpson sentence credit for the time he spent at the House of Corrections, but did not grant him sentence credit for August 30, 1997, to February 28, 1998, the time he spent on electronic monitoring. The administrator for DHA sustained the ALJ's decision, concluding that LeAnn's out-of-court statements bore "sufficient indicia of reliability to establish by a preponderance of the evidence that Mr. Simpson sexually assaulted her in violation of his probation rules." Further, DHA concluded that Simpson was not entitled to sentence credit from August 30, 1997, to February 28, 1998, because "electronic monitoring is not 'custody' within the meaning of Wis. Stat. § 973.155." Simpson filed a petition for a writ of certiorari with the Milwaukee County Circuit Court, and the circuit court affirmed DHA's decision. Simpson appeals.

Opinion

A. Standard of Review

¶ 10. In a review of a decision to revoke probation, we defer to the decision of the Division of Hearings and Appeals, applying the same standard as the circuit court. See State ex rel. Washington v. Schwarz, 2000 WI App 235, ¶ 16, 239 Wis. 2d 443, 620 N.W.2d 414; Von Arx v. Schwarz, 185 Wis. 2d 645, 655, 517 N.W.2d 540 (Ct. App. 1994). Our review is limited to the following questions: (1) whether DHA kept within its jurisdiction; (2) whether DHA acted according to law; (3) whether DHA's actions were arbitrary, oppressive or unreasonable and represented its will rather than its judgment; (4) and whether the evidence was such that DHA might reasonably make the decision in question. Von Arx, 185 Wis. 2d at 655.

B. Right to Confront LeAnn H.

¶ 11. Simpson does not argue that there was insufficient evidence for DHA to reasonably conclude that he violated the conditions of his probation. Rather, Simpson asserts that DHA failed to act according to law. He contends that his right to due process was violated when the ALJ permitted Tracy and Lehnert to testify regarding what LeAnn had told them because he was then prevented from exercising his right to confront an adverse witness. For support, Simpson points to Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973).

¶ 12. In Morrissey, a parolee had his parole revoked without a revocation hearing. 408 U.S. at 472-73. The Court noted the now oft-repeated principle that parolees are not entitled to the "full panoply of rights" due to criminal defendants. Id. at 480; see also State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 220, 252 N.W.2d 660 (1977). However, because parole revocation involves a loss of liberty and inflicts a "grievous loss" on the parolee, the Due Process Clause in the Fourteenth Amendment demands that parolees have an opportunity to be heard before the decision to revoke parole is made. Morrissey, 408 U.S. at 482, 487. Moreover, the Court concluded that among the "minimum requirements of due process," is "the right to confront and cross-examine adverse witnesses (unless the hearing examiner specifically finds good cause for not allowing confrontation)." Id. at 489. The Court emphasized that it had "no thought to create an inflexible structure for parole revocation procedures," and that the "process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversarial trial." Id. at 489-90.

¶ 13. The following year, Gagnon held that the due process requirements enunciated in Morrissey regarding parole revocations are equally applicable to probation revocations. See id. at 786; see also State v. Hardwick, 144 Wis. 2d 54, 58, 422 N.W.2d 922 (Ct. App. 1988). The holdings from Morrissey and Gagnon were reaffirmed in Black v. Romano, 471 U.S. 606, 612 (1985).

¶ 14. Although the ALJ found LeAnn's out-of-court statements to be reliable, the ALJ did not make a specific finding regarding whether there was "good cause" under Morrissey and Gagnon for failing to require LeAnn to testify. DHA also concluded that LeAnn's statements were reliable. Simpson argues that his due process rights were violated and that the decision to revoke his probation must be reversed. In response, the State argues that the ALJ was not required to make a finding of good cause because the hearsay evidence was reliable. We are thus confronted with two questions. First, does an ALJ's failure to make a specific finding regarding good cause require automatic reversal? Second, if automatic reversal is not required, was the good cause requirement otherwise met in this case?

¶ 15. With regard to the first question, neither the U.S. nor the Wisconsin Supreme Court has provided any direct guidance regarding the consequences of an ALJ's failure to make a specific finding of good cause. The State relies on Egerstaffer v. Israel, 726 F.2d 1231 (7th Cir. 1984), for the proposition that the need to make a finding of good cause "vanishes" "if the proffered evidence itself bears substantial guarantees of trustworthiness." Id. at 1234. We cannot agree, however, that the requirement of finding good cause ever simply "vanishes." Morrissey, Gagnon, and Black hold unequivocally that hearing examiners must specifically find that good cause exists for not allowing confrontation of adverse witnesses. The Court made no exception for making this finding when evidence is reliable. Therefore, regardless whether the reliability of evidence can be a basis for a finding of good cause (which we will discuss further below), an ALJ may not avoid making such a finding whenever he or she determines that the evidence is reliable. We therefore agree with Simpson that the ALJ erred by failing to comply with Morrissey.

¶ 16. We do not agree, however, that this error requires automatic reversal. Constitutional error is generally subject to a harmless error analysis. State v. Howard, 211 Wis. 2d 269, 293, 564 N.W.2d 753 (1997). Such error is harmless if the court is "able to declare a belief that it was harmless beyond a reasonable doubt," i.e., that there is no "reasonable possibility" that the error might have contributed to the outcome of the proceeding. Chapman v. California, 386 U.S. 18, 23-24 (1967); see also State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). Consistent with a harmless error analysis, we conclude that the failure to make a specific finding of good cause is harmless where good cause exists, its basis is found in the record, and its finding is implicit in the AL J's ruling. See United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1995); see also United States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997) (applying harmless error test to trial court's failure to make good cause finding). Although a failure to find good cause does not require automatic reversal, we encourage ALJs to make such a finding, and state their reasons for doing so. This better ensures that both due process is given and that good cause will be determined on appeal.

¶ 17. We turn next to the question whether the present facts satisfy this test. Although Simpson emphasizes that the ALJ's failure to find good cause constitutes grounds for automatic reversal, he also argues that no basis for finding good cause exists because there were alternatives to relying on hearsay, such as use of videotaped testimony, and because the proffered evidence was unreliable. The State contends that there was good cause because LeAnn's out-of-court statements were reliable.

¶ 18. State and federal courts have not been consistent in their descriptions of "good cause." Many appellate courts engage in a balancing test, in which the probationer's need for confrontation is weighed against the government's interest in denying confrontation. E.g., Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999); United States v. Martin, 984 F.2d 308, 312 (9th Cir. 1993); United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986); State v. Yura, 825 P.2d 523, 530 (Kan.1992). In applying this test, courts consider a number of factors, including the difficulty or expense in obtaining live witnesses, the danger that live testimony could impose on the witness, the importance of the evidence in the decision to revoke, and the reliability of the evidence the government offers in place of live testimony.

¶ 19. However, courts considering these factors are not always clear or in agreement regarding whether the government must show both that there are barriers to obtaining a live witness and that the proffered evidence is reliable, or if a strong showing regarding reliability is sufficient. Compare United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994) (holding that reliability of evidence does not satisfy good cause requirement if the government fails to provide an explanation for not producing a witness); State v. Dahl, 990 P.2d 396, 401 (Wash. 1999) ("[T]he reliability of the hearsay must be considered in light of the difficulty in procuring live witnesses.") with Walker, 117 F.3d at 420 (concluding that failure to conduct balancing test is harmless where evidence was reliable).

¶ 20. We agree with those courts concluding that a finding of good cause should generally be based upon a balancing of the need of the probationer in cross-examining the witness and the interest of the State in denying confrontation, including consideration of the reliability of the evidence and the difficulty, expense, or other barriers to obtaining live testimony. Because "[c]ross-examination is the principle means by which the believability of a witness and the truth of his testimony are tested," see Davis v. Alaska, 415 U.S. 308, 316 (1974), the State should provide a reason for why it will not make a witness available for cross-examination. This conclusion is supported by State ex rel. Harris v. Schynidt, 69 Wis. 2d 668, 683-84, 230 N.W.2d 890 (1975), in which the court upheld a hearing examiner's finding of good cause after both concluding that the hearsay evidence met the excited utterance exception under Wis. Stat. § 908.03 and that it was reasonable not to produce the witness because of the nature of the charge (sexual assault) and the age of the alleged victim (five years old).4 Further, the Court in Gagnon specifically alluded to "the difficulty and expense of procuring witnesses" as a factor to consider with respect to a probationer's right to confront adverse witnesses. 411 U.S. at 782 n.5.

¶ 21. However, a rule requiring reversal of a revocation decision in each instance that the record fails to show that obtaining live testimony would have been difficult for the State would create a standard in revocation hearings that is stricter than in criminal trials. Even the right to confront adverse witnesses in a criminal prosecution is not absolute. In that context, it is not always necessary that a witness be declared unavailable before his or her out-of-court declarations may be admitted into evidence if the proffered hearsay "has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule," White v. Illinois, 502 U.S. 346, 356-57 (1992). A focus on reliability, therefore, comports with the central purpose of confrontation, namely, "to ensure the reliability of the

4 State ex rel. Harris v. Schmidt, 69 Wis. 2d 668, 682, 230 N.W.2d 890 (1975), is the only Wisconsin case applying the Morrissey - Gagnon good cause requirement. Although the Harris court agreed with the hearing examiner that good cause existed based on reliability and the difficulty inherent in cross-examining child victims of sexual assault, it did not explain whether this was a minimum requirement or otherwise provide a framework for applying the test in future cases. Further, while we acknowledge the factual similarity between Harris and the present case, Harris is not controlling as there is no basis in the record from which we could infer that the ALJ determined that LeAnn was unable to testify or even considered her age in deciding that confrontation would be denied. evidence." Maryland v. Craig, 497 U.S. 836, 845 (1990). Consequently, the more reliable the proffered evidence is, the less necessary it would be for the State to show that obtaining a witness's live testimony would be difficult.

¶ 22. We need not determine, however, the contours of the good cause requirement, because we conclude that the test is always met when the evidence offered in lieu of an adverse witness's live testimony would be admissible under the Wisconsin Rules of Evidence. Cf. State ex rel. Prellwitz v. Schmidt, 73 Wis. 2d 35, 39, 242 N.W.2d 227 (1976) (holding that there was no "constitutional barrier" to considering DOC records in probation revocation hearings because they fell within the public records hearsay exception under Wis. Stat. § 908.03(8)). Further, because the testimony proffered by the State in this case would have been admissible under the Wisconsin Rules of Evidence, we conclude that the Morrissey - Gagnon good cause requirement was satisfied.

¶ 23. State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d 77 (1988), set out the requirements for admitting into evidence the hearsay statement of child sexual assault victims under the residual exception to the hearsay rules. In Sorenson, the supreme court held that, because there is "a compelling need for admission of hearsay arising from young sexual assault victims' inability or refusal to verbally express themselves in court. . ., use of the residual [hearsay] exception [under Wis. Stat. § 908.03(24)] is an appropriate method to admit these statements if they are otherwise proven sufficiently trustworthy." Id. at 243. Under the residual exception, hearsay evidence may be admitted at trial if it possesses " 'circumstantial guarantees of trustworthiness' comparable to those existing for enumerated exceptions." Id. Further, the residual exception may be used whether or not the child is available to testify. See id. at 242; State v. Oliver, 161 Wis. 2d 140, 143, 467 N.W.2d 211 (Ct. App. 1991). The supreme court enumerated a non-exclusive set of factors that courts may consider in assessing whether a child's statements are admissible. The weight accorded each factor may vary and no single factor is dispositive. Sorenson, 143 Wis. 2d at 246.

First, the attributes of the child making the statement should be examined, including age, ability to communicate verbally, to comprehend the statements or questions of others, to know the difference between truth and falsehood, and any fear of punishment, retribution or other personal interest, such as close familial relationship with the defendant, expressed by the child which might affect the child's method of articulation or motivation to tell the truth.

Id. at 245.

¶ 24. With regard to this factor, we note that LeAnn was six years old when she made the statements to Tracy and Lehnert. At that age, LeAnn was "unlikely to review an incident of sexual assault and calculate the effect of a statement about it," thus suggesting she was telling the truth. Id. at 246 (citing State v. Padilla, 110 Wis. 2d 414, 422, 329 N.W.2d 263 (Ct. App. 1982)). Further, Lehnert testified that LeAnn was "very bright" and "gave good answers" to the preliminary questions Lehnert asked her to establish LeAnn's level of development. According to the police report, she was able to count from one to twenty and recite her ABC's. She was also able to identify male and female anatomy, referring to both a vagina and a penis as "private part." Finally, there is no indication in the record that LeAnn did not know the difference between falsity and truth. She stated to Lehnert that "to tell the truth means you don't lie."

Second, the court should examine the person to whom the statement was made, focusing on the person's relationship to the child, whether that relationship might have an impact upon the statement's trustworthiness, and any motivation of the recipient of the statement to fabricate or distort its contents.

Id. at 245.

¶ 25. LeAnn told both her mother and Officer Lehnert that Simpson had sexually assaulted her. In neither case was LeAnn prompted to specifically identify Simpson, yet she did in both conversations. Because "it would be natural for a child who has been physically abused by another to inform a parent of that abuse," the fact that LeAnn first told her mother provides the statements with a circumstantial guarantee of trustworthiness. State v. Oliver, 161 Wis. 2d 140, 467 N.W.2d 211 (Ct. App. 1991). Although Francesca's testimony suggested that Tracy had told LeAnn to fabricate an abuse allegation, Simpson has offered no apparent motive for why Tracy would seek to coerce her daughter into making a false accusation, or for Tracy to distort LeAnn's statements. Further, even if Tracy had an incentive to lie, there is no indication that Officer Lehnert would have the same incentive. LeAnn spoke to Lehnert alone, so LeAnn could not have been coached by Tracy during the interview. But LeAnn repeated, in even greater detail, what she had told her mother. This further suggests the veracity of LeAnn's. statements.

Third, the court should review the circumstances under which the statement was made, including relation to the time of the alleged assault, the availability of a person in whom the child might confide, and other contextual factors which might enhance or detract from the statement's trustworthiness.

Sorenson, 143 Wis. 2d at 245-46.

¶ 26. LeAnn did not relate the alleged assaults to her mother immediately after they took place. However, "Contemporaneity and spontaneity of statements are not as crucial in admitting the hearsay statement of young sexual assault victims under the residual exception." Id. at 249. Further, LeAnn explained that she waited to tell her mother because Simpson told her to keep it secret. LeAnn related the incident to her mother immediately after Tracy told LeAnn, "If anyone ever messes with you, you have to tell mama."

Fourth, the content of the statement itself should be examined, particularly noting any sign of deceit or falsity and whether the statement reveals a knowledge of matters not ordinarily attributable to a child of similar age.

Id. at 246.

¶ 27. There is nothing in the content of LeAnn's statements showing any signs of falsity. Simpson claims that LeAnn made inconsistent statements, and that when she "was asked if Mr. Simpson had molested her 'SPECIFICALLY' she denied it." It is true that in March 1999 Tracy had asked LeAnn, "Has Will ever messed with you?" and LeAnn denied it. But again, this is not surprising when LeAnn had later stated that Simpson had told her not to tell anyone about the incidents.

¶ 28. LeAnn "volunteered sufficiently graphic accounts of sexual contact to suggest the source of her knowledge was within the realm of her experience." State v. Jagielski, 161 Wis. 2d 67, 75, 467 N.W.2d 196 (Ct. App. 1991). Although Tracy testified only that LeAnn told her that Simpson had "rubbed his stuff on her stuff," LeAnn was more detailed with Lehnert. She told Lehnert: "Will" would wake her up while she was sleeping, push her nightgown up, take off her underwear and "put his 'private parts' against her 'private parts' and would start humping her. LeAnn described humping as push ups, stating you go up and down." LeAnn even noted that Simpson once put her underwear back on backwards so she had to take them off and put them back on right before she went back to sleep.

Finally, other corroborating evidence, such as physical evidence of assault, statements made to others, and opportunity or motive of the defendant, should be examined for consistency with the assertions made in the statement.

Sorenson, 143 Wis. 2d at 246.

¶ 29. Simpson emphasizes repeatedly that a doctor's examination of LeAnn had shown no sign of a sexual assault. Based on LeAnn's description of events, however, there is no reason that there would be physical evidence, since LeAnn stated that he had taken off her underwear and "rubbed" his "private parts" on her "private parts;" LeAnn's statements do not indicate that there was any penetration. Simpson also argues that LeAnn's testimony is unreliable because it contained "substantial inconsistencies." However, the only inconsistencies that Simpson refers to are those between LeAnn's statements to Francesca and LeAnn's statements to Tracy and Lehnert regarding exactly when the assaults occurred. For example, Francesca testified that LeAnn told her that Simpson had not touched her the night the electricity went out, but according to Lehnert, LeAnn stated that this was one of the times. We do not consider this disparity in accounts to be determinative. LeAnn's statements to both Tracy and Lehnert were almost completely consistent, and even Francesca agreed that LeAnn stated to her that Simpson had "touched" her twice.

¶ 30. Considering the factors as a whole, we conclude that LeAnn's statements possess sufficient circumstantial guarantees of trustworthiness to qualify under the residual hearsay exception. We therefore further conclude that good cause existed and its basis is found in the record, and because the ALJ found specifically that the evidence was reliable, a finding of good cause was implicit in the ALJ's ruling. Accordingly, the ALJ's failure to specifically find good cause was harmless error.

C. Sentence Credit

¶ 31. Wisconsin Stat. § 973.155(l)(a) provides: "A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Simpson argues that DHA erroneously interpreted § 973.155 when it concluded that he was not entitled to sentence credit for the time he spent under electronic monitoring. Statutory interpretation is a question of law that we review de novo. State ex rel. Saffold v. Schwarz, 2001 WI App 56, ¶ 5, 241 Wis. 2d 253, 625 N.W.2d 333.

¶ 32. Wisconsin Stat. § 973.155(l)(a) does not define the term "custody." Although Wis. Stat. § 973.10(1) provides that "imposition of probation shall have the effect of placing the defendant in the custody of the department," the supreme court has not considered § 973.10(1) controlling for sentence credit purposes. Rather, in State v. Magnuson, 2000 WI 19, ¶ 25, 233 Wis. 2d 40, 606 N.W.2d 536, the supreme court held that "for sentence credit purposes an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status." In determining whether an individual would have been subject to an escape charge, we look both to the general escape statute, Wis. Stat. § 946.42, as well as "other statutory provisions in which the legislature has classified certain situations as restrictive and custodial by attaching escape charges for an unauthorized departure from those situations." Id. at ¶ 26.

¶ 33. Turning first to Wis. Stat. § 946.42, we note that a probationer cannot be charged with escape under that statute unless he or she is in "actual custody or is subject to a confinement order under [Wis. Stat.] s. 973.09(4)." See Wis. Stat. § 946.42(l)-(2). The statute further defines "actual custody" as including "a secured correctional facility," "a secured child caring institution," "a secure detention facility," "a Type 2 child caring institution," or "a juvenile portion of a county jail, or of a peace officer or institution guard." Section 946.42(l)(a). None of these situations applies to Simpson. Furthermore, "confinement" under Wis. Stat. § 973.09(4) does not include monitored home detention. State v. Eastman, 220 Wis. 2d 330, 337-38, 582 N.W.2d 749 (Ct. App. 1998).

¶ 34. Simpson refers us to Wis. Stat. § 302.425, regarding home detention programs. Under § 302.425(6), any "prisoner" who intentionally fails "to remain within the limits of his or her detention or to return to his or her place of detention" may be charged with escape. This section only applies, however, to "prisoners" who have been placed in a home detention program by the DOC, a sheriff, or a superintendent. Wis. Stat. § 302.425(2)-(2g). Because Simpson was placed on electronic monitoring by the circuit court, he would not be subject to an escape charge under § 302.425(6). See Magnuson, 2000 WI 19, at ¶ 38 (holding that § 302.425 does not apply unless a defendant was placed in home detention by a sheriff, a superintendent, or DOC). Similarly, Simpson could not have been charged with escape from community residential confinement under .Wis. Stat. § 301.046(6) because Simpson was not placed on electronic monitoring by DOC. Wis. Stat. § 301.046(3); Magnuson, 2000 WI19 at ¶ 33.

¶ 35. Although there are a number of other statutory provisions providing for escape charges, none of them applies here. See Wis. Stat. § 301.048(5) (escape from intensive sanctions program); Wis. Stat. § 303.065(2) (escape from work release program); Wis. Stat. § 303.10(5) (escape from county work camp); Wis. Stat. § 938.533(3m) (escape from juvenile placement under corrective sanctions program); Wis. Stat. § 938.538(4)(a) (escape from serious juvenile offender program); Wis. Stat. § 938.539(4) (escape from Type 2 secured correctional facility). Therefore, DHA correctly concluded that Simpson was not entitled to sentence credit for the time he spent on electronic monitoring.

By the Court. — Order affirmed.

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

       The Confrontation Clauses in both the Sixth Amendment and article I, section 7, are not directly implicated because those provisions apply only to criminal prosecutions, while probation revocation hearings are civil proceedings. See State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 513, 563 N.W.2d 883 (1997).

       We acknowledge that some courts have determined that a failure to specifically find good cause does require automatic reversal. See, e.g., State v. Alderman, 590 N.E.2d 836, 838 (Ohio Ct. App. 1990); Commonwealth v. Davis, 336 A.2d 616, 624 (Pa. Super. 1975); State v. Austin, 685 A.2d 1076, 1081 n.2 (Vt. 1996). None of these cases, however, explains why a harmless error analysis would be inapplicable to determinations regarding the right to confront an adverse witness in a revocation hearing, even though the Supreme Court has repeatedly held it does apply to Confrontation Clause cases. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Because a probationer's right to confront witnesses is subject to more restrictions than a criminal defendant's similar right, we are not persuaded that a stricter standard should be used in revocation hearings than in criminal trials.

       We recognize that a hearsay statement that satisfies the requirements of the Wisconsin Rules of Evidence may not be sufficiently reliable to satisfy the requirements of the Confrontation Clause. See State v. Oliver, 161 Wis. 2d 140, 145, 467 N.W.2d 211 (Ct. App. 1991). However, the Rules of Evidence and the Confrontation Clause "protect similar values." Idaho v. Wright, 497 U.S. 805, 814 (1990). Of course, neither the Rules nor the Sixth Amendment apply at revocation hearings and an AU's failure to comply with either of them will not necessarily be error. We only conclude that an ALJ's observance of the Wisconsin Rules of Evidence is sufficient to satisfy the good cause requirement under Morrissey and Gagnon.

       Simpson does not challenge the sufficiency of the evidence, but we also note that DHA could reasonably conclude that DOC had shown by a preponderance of the evidence that Simpson violated the conditions of his probation. Although its decision was based entirely on hearsay, this is sufficient to prove a probation violation so long as the hearsay is reliable. See State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 583, 326 N.W.2d 768 (1982). But see Colina v. State, 629 So.2d 274, 275 (Fla. Dist. App. 1993) (holding that probation violation cannot be proven by hearsay evidence alone); Stanley v. State, 587 So.2d 1258, 1259 (Ala. Crim. App. 1991) (same); State v. Carey, 620 A.2d 201, 205 (Conn. Ct. App. 1993), rev'd on other grounds, 636 A.2d 840 (Conn. 1994) (same).


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alan C. Campbell, Defendant-Appellant.

    Court of Appeals

      No. 01-0758-CR.

      Submitted on briefs October 5, 2001.

    Decided December 20, 2001.

    2002 WI App 20
    (Also reported in 642 N.W.2d 230.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Alexander D. Cossi, Cossi Law Offices, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Daniel J. O'Brien, assistant attorney general.
    Before Vergeront, PJ., Dykman and Lundsten, JJ.

       Petition to review denied 4-22-02.

   DYKMAN, J.

¶ 1. Alan Campbell appeals from a judgment of conviction for carrying a firearm as a felon contrary to Wis. Stat. § 941.29(2) (1999-2000). Campbell stipulated that he was in possession of a firearm and that he was convicted of forgery in Ohio. However, Campbell asserts that the Ohio conviction would not be a felony in Wisconsin because the Ohio forgery statute is broader than the Wisconsin forgery statute, and that the circuit court improperly looked to Campbell's conduct in Ohio to consider whether the crime would be a felony in Wisconsin. Alternatively, Campbell contends that the Ohio statute is ambiguous, and that the rule of lenity requires a conclusion that the forgery not be considered a felony in Wisconsin. We conclude that the circuit court correctly considered Campbell's conduct in finding him guilty under § 941.29 and that Campbell's conduct in Ohio would be a felony in Wisconsin. Further, it is unnecessary to decide whether the Ohio statute is ambiguous because it has no bearing on our interpretation of § 941.29. We therefore affirm.

¶ 2. In 1999, while in Ohio, Campbell was convicted of forgery, pursuant to Ohio Rev. Code Ann. § 2913.31(A)(1). In October 2000, while in Wisconsin, he was charged with possessing a firearm as a felon under Wis. Stat. § 941.29(2). Campbell filed a motion to dismiss the charges, but the court denied the motion.

¶ 3. At trial, Campbell stipulated to the following:

1. The defendant, Alan C. Campbell, was convicted in Hamilton County, Ohio, on November 2, 1998 of a violation of Section 2913.31(A)(1) of the Ohio Revised Code.
2. On March 14, 2000, at 7311 W. Capitol Drive, City of Milwaukee, Milwaukee County, Wisconsin, the defendant knowingly possessed a firearm, a .25 caliber handgun.

Based on these stipulations, and on the certified record from Ohio, which showed that the Ohio conviction was based upon Campbell's forgery of a $350 check, the circuit court found him guilty of felony possession under § 941.29(2). Campbell appeals.

Meaning of "Crime" in Wis. Stat. § 941.29(l)(b)

¶ 4. Campbell challenges the circuit court's interpretation of Wis. Stat. § 941.29. Interpretation of a statute is a question of law that we review de novo. Geiger v. Milwaukee Guardian Ins. Co., Inc., 188 Wis. 2d 333, 336, 524 N.W.2d 909 (Ct. App. 1994). The purpose of statutory interpretation is to discern the intent of the legislature, and the first step is to consider the language of the statute. See State v. Hansen, 2001 WI 53, ¶ 9, 243 Wis. 2d 328, 334, 627 N.W.2d 195.

¶ 5. Under Wis. Stat. § 941.29(1)(b), a person is prohibited from possessing a firearm if he or she was "[c]onvicted of a crime elsewhere that would be a felony if committed in this state." Campbell contends that his conviction under Ohio Rev. Code Ann. § 2913.31(A)(1) would not be sufficient to prove a felony in Wisconsin. Under Ohio law, it is a felony to forge any writing. Ohio Rev. Code Ann. § 2913.31(A)(1) and (C). In Wisconsin, however, forgery is only a felony when it involves a specific type of writing. Wisconsin Stat. § 943.38(1) provides:

Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class C felony:
(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or
(b) A public record or a certified or authenticated copy thereof; or
(c) An official authentication or certification of a copy of a public record; or
(d) An official return or certificate entitled to be received as evidence of its contents.

According to Campbell, because § 943.38(1) requires proof of a specific writing, but Ohio Rev. Code Ann. § 2913.31(A)(1) does not, his conviction in Ohio would not be considered a felony in Wisconsin, and therefore would not subject him to prosecution under § 941.29.

¶ 6. We agree with Campbell that the Ohio forgery statute is broader than Wisconsin's, and that looking solely at the language of the Ohio statute would be insufficient to prove that Campbell was guilty of possessing a firearm as a felon. However, we are not limited to considering the language of the statute.

¶ 7. Rather, we agree with the State that the circuit court was entitled to look at the underlying conduct supporting Campbell's conviction. The term "crime" is defined in Wis. Stat. § 939.12 as "conduct which is prohibited by state law and punishable by fine or imprisonment or both." (Emphasis added.) Further, Wis. Stat. § 939.22(6), provides that the meaning of "crime" in § 939.12, is applicable to chapters 939 through 948 of the Wisconsin Statutes. Therefore, in determining whether Campbell violated Wis. Stat. § 941.29(2), the circuit court properly considered Campbell's conduct that led to his conviction in Ohio.

¶ 8. Count one in the indictment against Campbell in the Ohio conviction stated: "Campbell... with purpose to defraud or knowing he was facilitating a fraud, forged a writing of Robert Bouldin without his authority, to wit: his signature on a $350 check." Campbell pleaded guilty to this count. A guilty plea carries with it admission of the facts charged against the individual. See State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 539, 280 N.W.2d 316 (Ct. App. 1979); State v. McCreary, 200 N.E.2d 787, 788 (Ohio Ct. App. 1964). Campbell thus admitted when he pleaded guilty that he forged a $350 check.

¶ 9. Forging a check is a felony in Wisconsin. Campbell's conduct falls under Wis. Stat. § 943.38(l)(a), since the check he forged is a writing "whereby legal rights or obligations are created." See State v. Koch, 175 Wis. 2d 684, 707, 499 N.W.2d 152 (1993). Because Campbell's conduct in Ohio would have been a felony if committed in Wisconsin, the circuit court properly found Campbell guilty of violating Wis. Stat. § 941.29.

¶ 10. Because we conclude that Wis. Stat. § 939.12 and Wis. Stat. § 941.29 require circuit courts to consider the underlying conduct of an out-of-state conviction, we disagree with Campbell's contention that Taylor v. United States, 495 U.S. 575 (1990), supports his position. In Taylor, the Supreme Court considered the application of 18 U.S.C. § 924(e)(2)(B)(ii), which authorizes sentence enhancement when a defendant has a prior conviction for a "violent felony," including "burglary." One issue in the case was how courts should determine whether a defendant had been convicted of "burglary" since states varied widely on how they defined the crime and some states had no crime named "burglary" at all. The Court decided that it would "look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. at 600. This conclusion, however, was based in large part on the language and legislative history of Section 924(e), which referred to "a person who . . . has three previous convictions," and defined "violent felony" in terms oí "elements." Id. at 600-01.

¶ 11. In the context of Wis. Stat. § 941.29, "crime" is unambiguously defined under Wis. Stat. § 939.12 as "conduct," unlike the case in Taylor. Id. We recognize, as did Taylor, that in the few cases where the out-of-state statute is broader than the Wisconsin statute and the prior conviction is not based upon a guilty plea, proving the facts necessary to obtain a conviction under § 941.29 could be a daunting task for the State and a cumbersome experience for both the defendant and the circuit court. Regardless, however, of the reasoning or policy of Taylor, it is the policy of the state legislature and not the United States Congress that we must follow when we interpret Wisconsin statutes. Our statutes define crimes as "conduct," and, therefore, we are required to interpret § 941.29 in light of that definition.

Rule of Lenity

¶ 12. Campbell contends that the Ohio forgery statute is ambiguous, and therefore the rule of lenity dictates that his forgery conviction should not be construed as a felony under Wisconsin law. Campbell is correct in asserting that the Wisconsin and Ohio statutes do not share the same elements. However, we are not concerned with the ambiguity of the Ohio statute on forgery. The only question is whether Campbell's crime would be considered a felony in Wisconsin. We have concluded that it is. The rule of lenity, therefore, does not apply.

By the Court. — Judgment affirmed.

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

       Ohio rev. Code ann. § 2913.31(A) reads in part:
      (A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:

        (1) Forge any writing of another without the other person's authority;
      Depending on the type, forgery is classified as anywhere from a fifth-degree felony to a second-degree felony. See Ohio Rev. Code Ahn. § 2913.31(C).

       Perhaps the State can prove conduct by showing that all the elements of a Wisconsin felony are included in the elements of an out-of-state crime, and that the other state's judiciary has interpreted the elements of the out-of-state crime in a way which would make that conduct a Wisconsin felony. This issue is not present, here, however, and we do not address it.


author: VERGERONT, PJ.

text:
    Beverly Enterprises, Inc. d/b/a Glenfield Health Care Center, Plaintiff-Appellant, v. Wisconsin Labor and Industry Review Commission and Betty J. Lewis-Jones, Defendants-Respondents.
    Court of Appeals

      No. 01-0970.

      Submitted on briefs September 12, 2001.

    Decided December 20, 2001.

    2002 WI App 23
    (Also reported in 640 N.W.2d 518.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peter L. Albrecht and Brandon N. Krueger of LaFollette, Godfrey & Kahn, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen M. Sobota, assistant attorney general.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.
   VERGERONT, PJ.

¶ 1. Beverly Enterprises, Inc., appeals the circuit court's order affirming a decision and order of the Labor and Industry Review Commission. LIRC ordered Beverly Enterprises to pay Betty Lewis-Jones $10,097.30, a portion of a sum that LIRC had previously ordered Beverly Enterprises to pay her under Wis. Stat. § 102.35(3) (1997-98) for wrongful refusal to rehire. Beverly Enterprises had withheld $10,097.30 as taxes from the sum previously ordered. LIRC's decision in this case also imposed penalties on Beverly Enterprises for bad faith, inexcusable delay, interest, and attorney's fees under Wis. Stat. §§ 102.18(l)(bp) and 102.22(1), (2) and (3) (1999-2000). Beverly Enterprises contends that LIRC's position that awards under § 102.35(3) are not taxable under 26 U.S.C. § 104(a)(1) is in error and, therefore, the company could lawfully withhold an amount from the sum it was ordered to pay Lewis-Jones. Alternatively, Beverly Enterprises contends that even if LIRC's interpretation of those statutes is correct, its own interpretation to the contrary is reasonable, and the reasonableness of its own position precludes a determination of bad faith and inexcusable delay.

¶ 2. We conclude that LIRC properly ordered Beverly Enterprises to pay Lewis-Jones $10,097.30 because LIRC's prior order, never reversed or modified, did not authorize Beverly Enterprises to pay Lewis-Jones any less than the entire sum ordered. We also conclude that LIRC's determinations that Beverly Enterprises acted in bad faith and inexcusably delayed payment are reasonable. Therefore we affirm.

BACKGROUND

¶ 3. In March 1997, an administrative law judge (ALJ) for the Worker's Compensation Division found Beverly Enterprises had violated Wis. Stat. § 102.35(3) (1997-98) by unreasonably refusing to rehire Betty Lewis-Jones, who had been off work due to a work-related injury. The ALJ ordered Beverly Enterprises to pay $31,903 to Lewis-Jones within twenty-one days, as well as additional amounts to her attorney for his fees and costs. Beverly Enterprises filed a petition for review with LIRC, and LIRC affirmed the ALJ's findings and order. Beverly Enterprises appealed LIRC's decision in the circuit court and, in November 1998, the circuit court affirmed LIRC's decision. At no time — before the ALJ, LIRC, or the circuit court — did Beverly Enterprises raise the issue of whether it was authorized to withhold taxes from the amount it was ordered to pay Lewis-Jones under § 102.35(3).

¶ 4. Beverly Enterprises did not appeal the circuit court's decision. Shortly after that decision, Beverly Enterprises tendered a check to Lewis-Jones for $21,805.70. On inquiry by Lewis-Jones's attorney, Beverly Enterprises explained that it had deducted $10,097.30 as tax withholding. Lewis-Jones's attorney informed Beverly Enterprises of a prior LIRC decision, Lancour v. Meurer Bakeries, WC Claim No. 84-54115 (LIRC Nov. 20, 1990), which held that an award under Wis. Stat. § 102.35(3) is not subject to federal taxation. In response, Beverly Enterprises retendered a check for $21,805.70 with a response that "[w]e believe that, to the extent this is true, the position taken by ... [LIRC] is inconsistent with federal law and that a good faith argument exists for the modification or revision of. . . [LIRC's] position on this issue."

¶ 5. Lewis-Jones petitioned the Worker's Compensation Division for a hearing, and a hearing was scheduled on the issues of Beverly Enterprises' bad faith in refusing to pay the $10,097.30 under Wis. Stat. § 102.18(l)(bp); a 10% increase in compensation for inexcusable delay in payment under Wis. Stat. § 102.22(1); and interest under § 102.22(2) and (3). The parties stipulated to the facts and presented briefs on their legal positions.

¶ 6. The ALJ concluded that Beverly Enterprises had acted in bad faith and, in addition to ordering the company to pay Lewis-Jones the $10,097.30, the ALJ awarded the maximum penalty under Wis. Stat. § 102.18(1)(bp) — $15,000. The ALJ first determined that Beverly Enterprises did not have a reasonable basis for not paying the full amount ordered because: Beverly Enterprises had not provided applicable legal authority for its interpretation of the federal tax statute; LIRC had made its position very clear in Lancour-, the wording of the order in this case unambiguously ordered that Beverly Enterprises was to pay $31,903 to Lewis-Jones, not $31,903 less withholding taxes; and Beverly Enterprises had had the opportunity to assert its position on withholding taxes in its appeal to LIRC and in the circuit court, but had not done so. The ALJ next determined that Beverly Enterprises had knowledge of the lack of a reasonable basis for failing to pay Lewis-Jones the full amount ordered because it was informed on multiple occasions in January and February 1999 by Lewis-Jones's attorney of the division's and LIRC's policy that benefits payable under Wis. Stat. § 102.35(3) are not taxable, and Beverly Enterprises disregarded that information and reissued the check in the reduced amount.

¶ 7. For the same reasons, the ALJ concluded that Beverly Enterprises had not established that its failure to pay the $10,097.30 was reasonable or excusable. Therefore, the ALJ ruled, Beverly Enterprises had violated Wis. Stat. § 102.22(1). The ALJ awarded 10% of the amount withheld as increased compensation. In addition, the ALJ awarded interest under § 102.22(2) and (3) on the $21,805.70 up to the date of its payment on February 5,1999; the interest on the $10,097.30 was not set but was to continue to accrue until that sum was paid.

¶ 8. Beverly Enterprises petitioned LIRC for review of the ALJ's decision. LIRC agreed with the ALJ's findings of fact and conclusions of law. The focus of LIRC's memorandum decision was its conclusion that, if Beverly Enterprises believed it had a right to withhold taxes from the $31,903, it should have appealed the amount of the award. Since Beverly Enterprises did not do that, LIRC concluded, its decision to withhold taxes knowing LIRC's position on the issue constituted bad faith and inexcusable delay.

¶ 9. Beverly Enterprises sought review in the circuit court of LIRC's decision, and the circuit court affirmed.

DISCUSSION

¶ 10. We first address Beverly Enterprises' challenge to LIRC's order that it pay Lewis-Jones the $10,097.30 it withheld for taxes. Beverly Enterprises contends that the dispositive issue in resolving this challenge is the proper interpretation of 26 U.S.C. § 104(a)(1), which exempts from taxable income "amounts received under workmen's compensation acts as compensation for personal injuries or sickness." According to Beverly Enterprises, because the award under Wis. Stat. § 102.35(3) was for its failure to rehire Lewis-Jones, that award was not exempt from taxation under the plain language of the federal statute. Beverly Enterprises acknowledges that LIRC has previously rejected this argument in Lancour, hut it contends that decision is erroneous.

¶ 11. We do not agree with Beverly Enterprises that we should begin our analysis by deciding if LIRC's interpretation of 26 U.S.C. § 104(a)(1) in Lancour was correct. The basis for LIRC's decision that Beverly Enterprises owed Lewis-Jones $10,097.30 was not a rejection of the merits of the company's interpretation of the federal statute. Rather, the basis was LIRC's interpretation of its prior-order that Beverly Enterprises pay $31,903 to Lewis-Jones: LIRC concluded that order plainly did not authorize Beverly Enterprises to withhold an amount from that sum for taxes, and Beverly Enterprises did not obtain a modification or reversal of that order. The proper issue, therefore, is whether LIRC's construction of its prior order is correct.

¶ 12. The parties have not briefed the standard of review for this issue. However, we conclude it is appropriate to utilize the standard of review we employ when the meaning of a trial court's written order is in

dispute. In that situation, the issue of the meaning of the order is a question of law, as is the issue whether there is an ambiguity in the order; if there is an ambiguity, we defer to the trial court's resolution of that ambiguity. Schultz v. Schultz, 194 Wis. 2d 799, 805-06, 807-08, 535 N.W.2d 116 (Ct. App. 1995).

¶ 13. Here LIRC's prior order stated:

That within twenty one days, respondent... [Beverly Enterprises] shall pay to applicant, the sum of Thirty one thousand nine hundred three dollars ($31,903); to Thomas Domer, applicant's attorney, the sum of Eight thousand eight dollars ($8,008), as attorney's fees, and the sum of One hundred twenty nine dollars ($129), as reimbursement for costs. This order pertains solely to applicant's claim for benefits under sec. 102.35(3), Stats.

We agree with LIRC that the order plainly requires Beverly Enterprises to pay the full amount of $31,903 to Lewis-Jones and does not authorize paying anything less to her for any reason. However, even if we were to conclude the order is ambiguous because it could also reasonably be read to mean that Beverly Enterprises is liable for $31,903 under Wis. Stat. § 102.35(3), but may withhold from Lewis-Jones a portion of that for taxes, we would defer to LIRC's resolution of that ambiguity. Thus, the result would be the same: we affirm LIRC's decision that it ordered Beverly Enterprises to pay Lewis-Jones $31,903 and, since that order was never modified or reversed, Beverly Enterprises owed her $10,097.30.

¶ 14. Beverly Enterprises argues that the issue of whether it had to withhold taxes under federal law did not arise until it was ready to pay Lewis-Jones after it failed to overturn LIRC's decision on the merits of the violation of Wis. Stat. § 102.35(3). Therefore, Beverly Enterprises argues, it is unfair to preclude it from litigating that issue at that later time. However, this argument is simply another way of saying that LIRC's order did not require that Beverly Enterprises pay Lewis-Jones the full $31,903, and we have just explained why we reject that interpretation of LIRC's order.

¶ 15. We next address Beverly Enterprises' challenge to LIRC's decision on bad faith. Wisconsin Stat. § 102.18(1) (bp) provides that LIRC may assess up to 200% of compensation due to a bad faith refusal to pay worker's compensation due the employee, subject to a maximum penalty of $15,000. The test for bad faith is whether the claimant has shown: (1) the absence of a reasonable basis for the employer's or insurer's decision to deny benefits; and (2) the employer's or insurer's knowledge or reckless disregard of a lack of a reasonable basis for denying or delaying payment. North Am. Mech., Inc. v. LIRC, 157 Wis. 2d 801, 807-08, 460 N.W.2d 835 (Ct. App. 1990).

¶ 16. LIRC's findings of facts are conclusive on appeal so long as they are supported by credible and substantial evidence, and factual findings include the drawing of one of several reasonable inferences from undisputed facts. Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541 N.W.2d 241 (Ct. App. 1995). Whether a particular set of facts constitutes bad faith is a question of law. Kimberly-Clark Corp. v. LIRC, 138 Wis. 2d 58, 66, 405 N.W.2d 684 (Ct. App. 1987).

¶ 17. Although we are not bound by an agency's conclusion of law, we may accord it deference. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). We give great weight deference when:

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

Id. We also give great weight to an agency's interpretation of a statute when it is intertwined with factual determinations or with value or policy judgments. Kannenberg v. LIRC, 213 Wis. 2d 373, 385, 571 N.W.2d 165 (Ct. App. 1997). We give a lesser amount of deference— due weight — when the agency has some experience in the area, but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute. UFE Inc., 201 Wis. 2d at 286.

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

¶ 19. Beverly Enterprises argues that we should review LIRC's decision on bad faith de novo because the only issue is the proper interpretation and application of a federal statute — 26 U.S.C. § 104(a)(1) — and LIRC has no experience or expertise with respect to this statute. We disagree. Although the reasonableness of Beverly Enterprises' interpretation of that statute is a proper factor for LIRC to consider in deciding whether Beverly Enterprises acted in bad faith, we do not agree that it is the only factor. Whether Beverly Enterprises acted reasonably in not paying Lewis-Jones the full $31,903 ordered by LIRC depends on a number of other factors, such as the reasonableness of: the company's interpretation of LIRC's order; not previously raising the issue of withholding taxes before the ALJ, LIRC, or the circuit court; and not paying Lewis-Jones the full amount even after it was informed of the Lancour decision.

¶ 20. We conclude that LIRC's determination whether Beverly Enterprises exercised bad faith is entitled to great weight deference. LIRC is the agency directly responsible for applying Wis. Stat. § 102.18(1)(bp) to worker's compensation disputes. It has done so in a substantial number of cases over the twenty-year history of that statute, and has consequently developed considerable expertise in applying it. Deference to LIRC's interpretation and application of the bad faith standard provides uniformity and consistency in its application. Finally, the decision whether an employer has a reasonable basis for not making a payment, and whether the employer knew or recklessly disregarded the lack of a reasonable basis, is a decision very much intertwined with value and policy judgments that are properly made by LIRC. We see no reason to give a lesser degree of deference to LIRC in this case because Beverly Enterprises' rationale for withholding payment is its disagreement with LIRC's interpretation of 26 U.S.C. § 104(a)(1). Interpreting the federal tax statute requires an analysis of Wis. Stat. § 102.35(3), which LIRC is charged with administering; LIRC has interpreted 26 U.S.C. § 104(a)(1) as applied to awards under § 102.35(3) in Lancour, and it affirmed in the later case of Giese v. Associated Contractors Corp., WC Claim No. 89-075597 (LIRC Mar. 4, 1992), that an award received under § 102.35(3) is not taxable.

¶ 21. Giving great weight deference to LIRC's determination that Beverly Enterprises did not have a reasonable basis for not paying Lewis-Jones the $10,097.30, we conclude the determination was reasonable. LIRC could reasonably decide that it was unreasonable for Beverly Enterprises not to: (1) pay to Lewis-Jones the full amount LIRC ordered; or (2) seek a modification allowing it to withhold an amount for taxes; or (3) seek a clarification if it was unclear whether the order allowed it to withhold for taxes. Beverly Enterprises asserted no reason that it did not do one of these things other than its belief that its action complied with federal tax law, and LIRC could reasonably decide that was an inadequate explanation. LIRC could also reasonably decide that Beverly Enterprises acted unreasonably when it withheld the payment after being informed of the Lancour decision, simply because it did not agree with that decision, and without even then attempting to obtain a ruling authorizing withholding. Finally, LIRC's determination that Beverly Enterprises' disagreement with the Lancour decision was not based on persuasive authority was also reasonable: although Beverly Enterprises' interpretation of the federal statute and its application to Wis. Stat. § 102.35(3) payments may be reasonable, Beverly Enterprises presented no revenue ruling regarding payments of this type under a worker's compensation statute, no legislative history, and no controlling case authority to support its interpretation. LIRC could reasonably decide that it was therefore unreasonable for Beverly Enterprises not to follow LIRC's prior decision on the precise issue, or at least attempt to obtain a reconsideration of the issue.

¶ 22. We also conclude that LIRC's determination under the second part of the bad faith standard is reasonable. LIRC found that after the circuit court upheld the original award, Lewis-Jones's attorney on several occasions informed Beverly Enterprises' attorney of LIRC's policy that benefits paid under Wis. Stat. § 102.35(3) are not taxable, including specifically informing him of the Lancour decision, but Beverly Enterprises disregarded the information and instead reissued payment to Lewis-Jones for $21,805.70. Beverly Enterprises did not seek a ruling from the IRS nor from the Department of Workforce Development. LIRC could reasonably infer from this that Beverly Enterprises either knew it did not have a reasonable basis for withholding a portion of the payment or simply did not care whether it had. Beverly Enterprises contends that, even if it did not have a reasonable basis for withholding payments, it had a good faith belief it did. However, LIRC has chosen to draw a different inference from the evidence, and, because the inference is a reasonable one, we accept it.

¶ 23. Our review of LIRC's decision that Beverly Enterprises inexcusably delayed payment to Lewis-Jones follows a similar analysis and arrives at a similar conclusion. Under Wis. Stat. § 102.22(1), payments that the employer inexcusably delays may be increased by 10%. This provision is designed to assess a penalty in the absence of an acceptable excuse. Coleman v. American Universal Ins. Co., 86 Wis. 2d 615, 625, 273 N.W.2d 220 (1979). Therefore, a penalty is not appropriate when there is a good-faith basis for not making payments. Id. Beverly Enterprises asserts that its delay in paying the $10,097.30 is not inexcusable because its interpretation of 26 U.S.C. § 104(a)(1) constitutes a good-faith basis for not paying.

¶ 24. For the reasons we have discussed with respect to bad faith penalties under Wis. Stat. § 102.18(l)(bp), we accord great weight deference to LIRC's application of Wis. Stat. § 102.22(1) to the facts in this case. See Milwaukee County v. DILHR, 48 Wis. 2d 392, 396, 180 N.W.2d 513 (1970). LIRC's determination that the delay in paying Lewis-Jones the $10,097.30 was inexcusable was based on the same facts and reasoning as its determination on bad faith. Because we have already concluded that LIRC's determination of bad faith was reasonable, it follows that LIRC's determination that the delay in payment was inexcusable is also reasonable.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 102.35(3) (1997-98) provides:
      (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical'and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.

       Wisconsin Stat. § 102.18(l)(bp) provides:
      The department may include a penalty in an award to an employee if it determines that the employer's or insurance carrier's suspension of, termination of or failure to make payments or failure to report injury resulted from malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. The department may award an amount which it considers just, not to exceed the lesser of 200% of total compensation due or $15,000.... The department may, by rule, define actions which demonstrate malice or bad faith.

       Wisconsin Stat. § 102.22(1) provides in part:
      Penalty for delayed payments; interest. (1) .... If the employer . .. inexcusably delays for any length of time in making any other payment that is due an injured employee, the payments as to which the delay is found may be increased by 10%....

       Wisconsin Stat. § 102.22(2) and (3) provide:
      (2) If the sum ordered by the department to be paid is not paid when due, that sum shall bear interest at the rate of 10% per year.... The department has jurisdiction to issue award for payment of such interest at any time within one year of the date of its order, or upon appeal after final court determination. Such interest becomes due from the date the examiner's order becomes final or from the date of a decision by the labor and industry review commission, whichever is later.
      (3) If upon petition for review the commission affirms an examiner's order, interest at the rate of 7% per year on the amount ordered by the examiner shall be due for the period beginning on the 21st day after the date of the examiner's order and ending on the date paid under the commissioner's decision. If upon petition for judicial review under s. 102.23 the court affirms the commission's decision, interest at the rate of 7% per year on the amount ordered by the examiner shall be due up to the date of the commission's decision, and thereafter interest shall be computed under sub. (2).

       The ALJ ordered that portions of these awards be paid to Lewis-Jones's attorney, with the result that Beverly Enterprises was ordered to pay Lewis-Jones $12,000 of the bad faith penalty, $807.78 of the additional 10%, and $3,360.71 in interest.

       In its brief in this court, LIRC argues that its decision is justified under the doctrines of waiver and claim preclusion. However, LIRC did not refer to either doctrine in its decision, and each doctrine requires the consideration of one or more factors that are extraneous to the decision LIRC actually made. Therefore, we do not frame the issue for our review in terms of either of these doctrines.

       We review LIRC's decision, not that of the trial court. Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996).

       Wisconsin Stat. § 102.18(l)(bp) was enacted in 1981. Laws of 1981, ch. 92, § 14. A few of the cases in which LIRC has applied it are: Schuh v. Conagra Grocery Prods. Co., WC Claim No. 1999-023346 (LIRC Sept. 28, 2001); Janusz v. Pizza Hut

        Inc. Store #503035, WC Claim No. 1999-008591 (LIRC May 31, 2001); Stage v. Carver Boat Corp., WC Claim No. 1998001441 (LIRC May 7, 2001); Smith v. Longview Fibre Co., WC Claim No. 1990024253 (LIRC Oct. 29, 1998); Starkl v. JC Penney Milwaukee Catalog, WC Claim No. 90065879 (LIRC June 13, 1996); Giese v. Associated Contractors Corp., WC Claim No. 89-075597 (LIRC Mar. 4, 1992); Lancour v. Meurer Bakeries, WC Claim No. 84-54115 (LIRC Nov. 20, 1990).

       Since it is unnecessary to this opinion, we do not decide what standard of review would be appropriate were we reviewing a LIRC decision interpreting 26 U.S.C. § 104(a)(1), rather than a decision on bad faith, nor do we decide whether LIRC's interpretation of that statute as applied to payments under Wis. Stat. § 102.35(3) is correct.

       Under Wis. Admin. Code § DWD 80.05(1) any party may apply to the Department of Workforce Development for resolution of a dispute involving matters under Wis. Stat. ch. 102 and the department will issue an order "as shall be lawful and just under the circumstances." This is what Lewis-Jones did when she sought penalties and interest. Beverly Enterprises provides no reason why it did not or could not avail itself of this procedure once the dispute developed between it and Lewis-Jones over the taxability of the award issued under Wis. Stat. § 102.35(3).

       On the other hand, there may be inexcusable delay without bad faith. Coleman v. American Universal Ins. Co., 86 Wis. 2d 615, 625, 273 N.W.2d 220 (1979).

       This section was enacted in 1917. Laws of 1917, ch. 624, § 1 (Section 2394-18m); see also Milwaukee County v. DILHR, 48 Wis. 2d 392, 396, 180 N.W.2d 513 (1970). In addition to the Lancour, Janusz, Schuh, Smith, Stage, and Starkl decisions cited in footnote 9, other cases in which LIRC has applied Wis. Stat. § 102.22(1) include: Salzman v. Customized Transp. Inc., WC Claim No. 1999-004125 (LIRC Aug. 28, 2001); Galvin v. Tropic Banana Co., WC Claim No. 1998011253 (LIRC June 3, 1999); Peters v. Aarrow Elec. Castings, WC Claim No. 93068348 (LIRC Nov. 25, 1996).

       Beverly Enterprises also challenges LIRC's award of interest, but the premise of this challenge is that Beverly Enterprises is correct on the other issues it raises. Since we have decided all other issues against Beverly Enterprises, there is no need to separately address the issue of interest.


author: SCHUDSON, J.

text:
    Danny L. Schroeder, Plaintiff-Respondent, v. State Farm Mutual Automobile Insurance Co., Defendant-Appellant, Linda K. Bourdo, Defendant.
    Court of Appeals

      No. 01-0252.

      Submitted on briefs December 4, 2001.

    Decided December 27, 2001.

    2002 WI App 11
    (Also reported in 640 N.W.2d 215.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas E. Goss, Jr., of Mueller, Goss & Possi, S.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Virginia M. Antoine, of Habush, Habush & Rottier, S.C., of Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. State Farm Mutual Automobile Insurance Co. appeals from the circuit court order granting Danny L. Schroeder's motion for declaratory judgment. The circuit court concluded that Schroeder's State Farm automobile insurance policy's antistacking provision was ambiguous and, therefore, that it did not preclude payment under the policy's uninsured motor vehicle provision even though payment had been made under the uninsured motor vehicle provision of Schroeder's ex-wife's State Farm policy, following the death of their daughter.

¶ 2. State Farm argues that recent decisions, including Estate of Dorschner v. State Farm Mutual Automobile Insurance Co., 2001 WI App 117, 244 Wis. 2d 261, 628 N.W.2d 414, review denied, 2001 WI 114, 246 Wis. 2d 175, 634 N.W.2d 321, decided six months after the circuit court's decision in the instant case, require reversal. State Farm is correct and, accordingly, we reverse.

I. BACKGROUND

¶ 3. On August 22, 1996, Schroeder's sixteen-year-old daughter, Dorine, was killed in an auto accident while riding as a passenger in an uninsured motor vehicle. Schroeder and his ex-wife, Linda K. Bourdo, each had a car insured with State Farm. Each of the two policies provided $50,000 uninsured motor vehicle coverage per person, and each included the following antistacking provision:

Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles insured, or premiums paid, the limits for uninsured motor vehicle coverage under this policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limits of uninsured motor vehicle coverage available for bodily injury suffered by an insured in any one accident.

It is undisputed that, under each policy, Dorine was a "personQ covered" as an "insured" and that "bodily injury" included death resulting from bodily injury. See also Wis. Stat. § 632.32(4)(a) (1999-2000) (Uninsured motorist coverage is "[f]or the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom."). It also is undisputed that both Schroeder and Bourdo are not only named "insured[s]" under their respective policies, but also "insured[s]" under each other's policies, as heirs of Dorine.

¶ 4. As a result of Dorine's death, State Farm paid Schroeder and Bourdo $50,000 — the policy limit under the uninsured motor vehicle provision of her policy. Consequently, State Farm applied the antistacking provision of Schroeder's policy and denied his claim for an additional $50,000 payment.

¶ 5. Challenging State Farm's denial, Schroeder argued that the policy's antistacking provision did not apply and, further, that Wis. Stat. § 632.32(5)(f), the 1995 enactment allowing antistacking provisions, was unconstitutional because it denied him substantive due process of law. The circuit court concluded that the policy's antistacking provision was ambiguous and, therefore, must be construed in Schroeder's favor. Granting Schroeder declaratory judgment on that basis, the court did not decide his constitutional challenge.

¶ 6. On appeal, Schroeder again argues that the antistacking provision of his policy is inapplicable to the circumstances of this case. He also reiterates his argument that Wis. Stat. § 632.32(5)(f) unconstitutionally denies him substantive due process of law.

II. DISCUSSION

A. Applicability

¶ 7. The interpretation and application of an an-tistacking provision of an automobile insurance policy present questions of law subject to this court's de novo review. See Dorschner, 2001 WI App 117 at ¶ 3. Whether an antistacking provision is ambiguous presents a question of law we also review without deference to the circuit court. See id.

¶ 8. Schroeder argues that the antistacking provision of his policy is either inapplicable to his circumstances or ambiguous so that, in any event, it does not preclude his claim for uninsured motorist coverage merely because of the uninsured motor vehicle payment made under his ex-wife's policy. He focuses on the phrase, "similar coverage applying to other motor vehicles," and contends that the phrase either does not encompass the uninsured motor vehicle coverage under his ex-wife's policy or, at the very least, is ambiguous on that point. We conclude, however, that Schroeder's interpretation is incorrect. It ignores the antistacking provision's "regardless" phrase and fails to adequately account for this court's decision in Dorschner.

¶ 9. Schroeder strives mightily to establish that the antistacking provision of his policy refers only to "similar coverage" within his own policy, and to "other motor vehicles" covered under his own policy. He explains:

[S]ince the anti[]stacking provision uses the term "similar" coverage, this must mean coverage similar to the type of coverage which is initially referred to in the provision. The provision initially refers to "uninsured motor vehicle coverage under this policy" and it says that the limits of that coverage cannot be added to the limits of "similar coverage applying to other motor vehicles." Therefore, the term "similar coverage" must refer to coverage that is similar to "uninsured motor vehicle coverage under this policy." One must then ask: What type of coverage is "similar" to "uninsured motor vehicle coverage under this policy"? The answer is: other uninsured motor vehicle coverage under this policy. A policy may provide uninsured motor vehicle coverage with respect to more than one vehicle. Therefore, the anti[]stacking provision essentially means that the limits of uninsured motor vehicle coverage provided under the policy with respect to one vehicle cannot be added to the limits of uninsured motor vehicle coverage provided under the policy with respect to other vehicles.
If State Farm had intended to provide in the anti[]stacking provision that the limits of uninsured motor vehicle coverage under the policy could not be added to the limits of any other uninsured motor vehicle coverage, regardless of whether that coverage was provided under the same policy or another policy, State Farm could have said that. It could have said, for instance, that "the limits for uninsured motor vehicle coverage under this policy may not be added to the limits of any other uninsured motor vehicle coverage, under this policy or another policy." However, State Farm did not say that.

We disagree. Indeed, State Farm, in effect, did "say that" and more. By prefacing the antistacking provision with the all-encompassing introductory words — "Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles insured, or premiums paid" — State Farm did everything semantically possible to extend its antistacking endorsement to any other policy providing coverage.

¶ 10. In Dorschner, this court considered circumstances that, in many important respects, are similar to those of the instant case. Dorschner was a passenger in an insured car when she was killed in an auto accident with an uninsured vehicle driven by a drunk driver. See Dorschner, 2001WI App 117 at ¶ 2. The policy covering the car in which Dorschner was riding provided uninsured motorist coverage; the policy paid Dorschner's estate the full limits of that coverage. Id. The estate then sought to collect the policy limits under the uninsured motorist provision of Dorschner's State Farm policy. Id.

¶ 11. Dorschner's State Farm policy, however, included an antistacking clause identical to the one in the instant case. See id. at ¶ 4. Rejecting the argument that the antistacking provision was ambiguous, we concluded: "[T]he antistacking clause . .. tracks verbatim the language [Wis. Stat.] § 632.32(5)(f) which authorizes such provisions. We assume this is an example of what the legislature viewed as an unambiguous means of conveying the antistacking provision." Id. at ¶ 12 (emphasis added).

¶ 12. While Schroeder points out that the facts of Dorschner do not line up exactly with those of his case, he fails to explain how the slight distinctions make any difference. After all, according to the introductory words of the antistacking provision in the State Farm policies, regardless of whether an uninsured motor vehicle payment has been made under a policy issued to the owner of an insured vehicle (as in Dorschner), or under a policy issued to a victim's parent (as in the instant case), the antistacking limitation is triggered. Thus, our conclusion in Dorschner controls this case as well.

B. Constitutionality

¶ 13. As noted, the circuit court did not address Schroeder's constitutional argument; we do so here. See State v. Holland Plastics Co., 111 Wis. 2d 497, 504-05, 331 N.W.2d 320 (1983) (appellate court may address issue raised but not resolved in circuit court where circuit court disposed of case on separate basis).

¶ 14. As the supreme court recently reiterated in reviewing a due-process challenge to another provision of Wis. Stat. § 632.32: "The constitutionality of a statute presents a question of law that we review de novo. A statute is presumed to be constitutional, and[] every presumption will he used to sustain the law if at all possible. The challenger bears the heavy burden of overcoming that presumption." Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 10, 236 Wis. 2d 113, 613 N.W.2d 557 (citations omitted).

¶ 15. Schroeder argues that Wis. Stat. § 632.32(5)(f), as applied to the circumstances of this case, is unconstitutional under Wis. Const, art. I, § 1 and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Pointing out that before enactment of the statute in 1995, State Farm's antistacking provision would have been disallowed, Schroeder maintains that, but for § 632.32(5)(f), he would have been entitled to stack his policy's uninsured motor vehicle coverage on the uninsured motor vehicle coverage of his ex-wife's policy. Therefore, Schroeder asserts, "there is no doubt" that the statute deprives him of rights under his insurance contract. We disagree.

¶ 16. "The threshold inquiry when analyzing an alleged violation of substantive due process is whether the challenger has established a deprivation of a liberty or property interest protected by the Constitution." Dowhower, 2000 WI 73 at ¶ 14. Here, under the supreme court's rationale in Dowhower, presented in a closely related context, we conclude that Schroeder has failed to establish any deprivation of a constitutionally protected liberty or property interest, even assuming the existence of such a liberty or interest.

¶ 17. In Dowhower, the supreme court considered a substantive due-process challenge to Wis. Stat. § 632.32(5)(i)l. Id. at ¶ 12. The court assumed, without deciding, that the Dowhowers, challenging the statute, had "identified and set forth" a constitutionally protected liberty or property interest. Id. at ¶ 15. Nevertheless, the court concluded that they had not established that the statute deprived them of any such interest or right. Id.

¶ 18. The supreme court concluded that "an insurer may reduce payments" under an uninsured or underinsured motor vehicle (UIM) insurance policy provision, "provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will he arrived at by combining payments made from all sources." Id. at ¶ 33. Accordingly, the court held that the statute "on its own terms does not deprive the Dowhowers of any state or federal constitutional right to enter into insurance contracts without fraud, and, as a result, it does not present a substantive due process violation." Id. at ¶ 36.

¶ 19. Again, Schroeder correctly notes that his circumstances are distinguishable; after all, his due-process challenge is to a subsection of Wis. Stat. § 632.32 that was not at issue in Dowhower. But, once again, Schroeder has offered nothing to establish that this distinction makes any difference. Indeed, even if the essential similarities between reducing clauses and antistacking clauses were not self-evident, the supreme court and this court have equated them for analytical purposes. See Blazekovic v. City of Milwaukee, 2000 WI 41, ¶ 20, 234 Wis. 2d 587, 610 N.W.2d 467 ("The first four provisions, § 632.32(5)(f)-(5)(i), primarily address anti[]stacking and reducing clauses, validating such clauses to avoid the duplication of benefits permitted under prior case law [preceding the legislative change in 1995]."); see also Dorschner, 2001 WI App 117 at ¶ 12 (The "rationale" of Dowhower, analyzing the reducing clause authorized under Wis. Stat. § 632.32(5)(i), is "also applicable to this case" involving the antistacking provision under § 632.32(5)(f).). Thus, we conclude, recent case law solidifies the legal foundation on which we must also reject Schroeder's constitutional challenge.

By the Court. — Order reversed.

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

       According to his affidavit, however, Schroeder did not receive any portion of that payment.

       WISCONSIN Stat. § 632.32(5)(f) provides:
      A policy may provide that regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid[,] the limits for any coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident.

       WisConsin Const. art. I, § 1 states: "All people are bora equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides, in relevant part, "nor shall any State deprive any person of life, liberty, or property, without due process of law."

       WISCONSIN Stat. § 632.32(5)(i), the statutory authorization for "reducing" clauses in automobile insurance policies, provides, in relevant part:
      A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.