author: ROGGENSACK, J.

text:
    ABC for Health, Inc. and Wisconsin Coalition for Advocacy, Petitioners-Appellants-Cross-Respondents, AARP, Petitioner, v. Commissioner of Insurance, Respondent-Respondent, Blue Cross/Blue Shield United of Wisconsin, Interested Party-Respondent-Cross-Appellant.
    Court of Appeals

      No. 00-2944.

      Submitted on briefs June 11, 2001.

    Decided December 6, 2001.

    2002 WI App 2
    (Also reported in 640 N.W.2d 510.)

      On behalf of the petitioners-appellants-cross-respondents, the cause was submitted on the briefs of Robert A. Peterson, Jr. of ABC for Health, Inc. of Madison; Jeff Spitzer-Resnick of Wisconsin Coalition for Advocacy of Madison; and. Michael Schuster of AARP of Washington, D.C.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Peter C. Anderson, assistant attorney general.
    On behalf of the interested party-respondent-cross-appellant, the cause was submitted on the briefs of Joseph C. Branch, Michael D. Flanagan, and Thomas R. Hrdlick of Foley & Lardner of Milwaukee; Stephen P. Hurley oí Hurley Burish & Milliken SC of Madison; and Stephen E. Bablitch of Bablitch Law Office of Madison.
    Brief of amicus curiae was filed by William J. Toman and Valerie Bailey-Rihn of Quarles & Brady LLP of Madison on behalf oí Medical College of Wisconsin, Inc.

    Brief of amicus curiae was filed by Thomas M. Pyper and Cynthia L. Buchko of Whyte Hirschboeck Dudek, S.C. of Madison on behalf of the University of Wisconsin Medical School.

    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 3-19-02.

   ROGGENSACK, J.

¶ 1. ABC for Health, Inc., Wisconsin Coalition for Advocacy and AARP (collectively, ABC) appealed the circuit court's decision to affirm the Commissioner of Insurance's approval of the conversion of Blue Cross/Blue Shield United of Wisconsin (BC/BSUW) from a nonprofit, non-stock insurance corporation to a for-profit, stock insurance corporation. BC/BSUW cross-appealed, challenging the circuit court's lack of a decision on its contention that ABC does not have standing to contest the conversion plan. ABC does not object to the actual conversion, but rather, it objects to the proposed use of the conversion proceeds, arguing that the use approved by the Commissioner violates the cy pres doctrine and Wis. Stat. §§ 701.10 and 181.1302(3)(b) (1999-2000). We affirm the judgment of the circuit court without deciding the standing issue raised by BC/BSUW because we conclude that (1) neither the cy pres doctrine, nor § 701.10, nor § 181.1302(3) applies to the conversion of BC/BSUW, and (2) the Commissioner's approval of the plan of conversion represents the more reasonable interpretation and application of the statutes the Commissioner is charged with administering.

BACKGROUND

¶ 2. BC/BSUW was originally incorporated in 1939 as Associated Hospital Service, Inc., a nonprofit, non-stock hospital service corporation. In 1979, Associated Hospital Service, Inc. took over the business of a surgical care plan in Milwaukee and reorganized as BC/BSUW. In 1999, BC/BSUW filed an application for approval of a plan to convert from a nonprofit, non-stock corporation to a for-profit, stock corporation under Wis. Stat. § 613.75, which incorporates Wis. Stat. § 611.76, with the Office of the Commissioner of Insurance.

¶ 3. Pursuant to the plan of conversion, BC/BSUW is to become a wholly-owned subsidiary of United Heartland Group, Inc., a stock corporation which will act as a holding company for BC/BSUW. All of the stock of the holding company will then be transferred to Blue Cross & Blue Shield Public Health Foundation and subsequently sold to the public by the Foundation. The capital raised through the Foundation's sale of the stock in the holding company will be used to fund public health initiatives through the Medical College of Wisconsin and the University of Wisconsin Medical School.

¶ 4. Prior to deciding whether to approve the plan of conversion, including how the proceeds from the sale of the stock would be used, the Commissioner conducted Class 1 contested case hearings on BC/BSUW's application for conversion. As part of this hearing process, the Commissioner appointed an appraisal committee which met numerous times to review the structure of the conversion plan, the value of BC/BSUW and the proposed uses for the proceeds of the stock sale. The Commissioner also conducted public information hearings throughout the state where numerous people testified or submitted written statements. ABC submitted testimony as part of those hearings and it also cross-examined certain witnesses.

¶ 5. When participating in the hearings, ABC asserted that the cy pres doctrine prevents the use of the stock sale proceeds in the manner envisioned by the plan. However, the Commissioner concluded that the cy pres doctrine did not apply; that BC/BSUW was never a charitable trust; and that the conversion plan, as modified, complied with the requirements of Wis. Stat. § 611.76(7)(a). Although ABC does not object to the actual conversion from a nonprofit, non-stock corporation to a for-profit, stock corporation, it does object to the Foundation's use of the sale proceeds as approved by the Commissioner. The circuit court affirmed the Commissioner. ABC appealed, and BC/BSUW cross-appealed, contending that ABC has no standing to challenge the conversion.

DISCUSSION

Standard of Review.

¶ 6. We review the decision of the Commissioner, rather than that of the circuit court. DOR v. Johnson Welding & Mfg. Co., 2000 WI App 179, ¶ 6, 238 Wis. 2d 243, 617 N.W.2d 193. We affirm an agency's findings of fact if they are supported by substantial evidence in the record. Wis. Stat. § 227.57(6); Madison Gas & Elec. Co. v. Public Serv. Comm'n of Wisconsin, 109 Wis. 2d 127, 133, 325 N.W.2d 339, 342 (1982).

¶ 7. Whether Wis. Stat. § 611.76(7)(a) has been satisfied by the conversion plan approved by the Commissioner and whether the cy pres doctrine or Wis. Stat. § 701.10 or Wis. Stat. § 181.1302(3)(b) precludes approval of the conversion plan are questions of law. While we are not bound by an agency's conclusions of law in the same manner as we are bound by its factual findings, we may nonetheless defer to an agency's legal conclusions. Begel v. LIRC, 2001 WI App 134, ¶ 6, 246 Wis. 2d 345, 631 N.W.2d 220.

¶ 8. If a statute is ambiguous, we accord the agency's interpretation or application of that statute either great weight deference, due weight deference or de novo review, depending on the circumstances. Id. at ¶ 7 (citing UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57, 61 (1996)). We accord great weight deference only when all four of the following elements are met: (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 special knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. UFE, 201 Wis. 2d at 284, 548 N.W.2d at 61. We apply due weight deference when "the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286, 548 N.W.2d at 62. This deference is largely accorded the administrative agency because the legislature has charged the agency with the enforcement of the statute in question. Id. Under this standard, we will not overturn a reasonable agency decision that furthers the purpose of the statute unless we determine that there is a more reasonable interpretation under the applicable facts. Id. at 286-87, 548 N.W.2d at 62. Finally, we will apply de novo review to an agency's legal conclusion if any one of the following is true: (1) the legal issue is one of first impression; (2) there is no evidence of any special agency expertise or experience in dealing with the legal issue presented; or (3) the agency's position on the legal issue has been so inconsistent as to provide no real guidance. DOR v. Caterpillar, Inc., 2001 WI App 35, ¶ 7, 241 Wis. 2d 282, 625 N.W.2d 338.

¶ 9. Here, although the parties agree that the Commissioner has not ruled on a plan of conversion such as the one presented by BC/BSUW, the Commissioner has acted on at least two conversion applications for mutual insurance companies. Additionally, the Commissioner is charged with administering Wis. Stat. §§ 611.76(7)(a) and 613.75. Therefore, a decision by the Commissioner is likely to create more certainty among those who choose to petition for conversions in the future. Accordingly, we apply due weight deference to the Commissioner's conclusion that the conversion plan satisfies § 611.76(7)(a), and we will sustain it unless we conclude that another interpretation of the statute is more reasonable.

¶ 10. However, the same cannot be said for the Commissioner's determinations under chs. 181 and 701, as those are not chapters that the legislature designated the Commissioner to administer. Therefore, we will apply de novo review to whether the statutes in chs. 181 and 701 cited by ABC apply to this transaction. Additionally, we will apply de novo review to whether the cy pres doctrine applies to this insurance company conversion because cy pres is a legal doctrine developed through court decisions, and the administrative agency is interpreting those decisions. See Motola v. LIRC, 219 Wis. 2d 588, 597, 580 N.W.2d 297, 300 (1998).

Cy Pres Doctrine.

¶ 11. The cy pres doctrine may be applied where there has been a bequest to a charity and the exact intent of the donor cannot be accomplished. Bletsch v. Barth, 25 Wis. 2d 40, 48, 130 N.W.2d 275, 278 (1964). Therefore, a court of equity will attempt to accomplish the next best similar charitable purpose. Board of Trs. of Beloit College v. Farrow, 29 Wis. 2d 506, 515, 139 N.W.2d 72, 77 (1966). Wisconsin Stat. § 701.10 codifies the common law doctrine of cy pres in regard to "charitable trusts." A charitable trust is one in which the "income or principal presently or in the future must be used by the trustee exclusively for a charitable purpose as defined in s. 701.10(1)." Wis. Stat. § 701.01(2). A charitable purpose is one focused on "relief of poverty, advancement of education, advancement of religion, promotion of health, governmental or municipal purposes or any other purpose the accomplishment of which is beneficial to the community." Section 701.10(1). A charitable trust is a type of "established charitable entity," which entity is defined in § 701.10(4) as a "corporation, unincorporated association or trust operated exclusively for a charitable purpose. ..."

¶ 12. ABC seeks to invalidate the uses permitted by the plan of conversion for the proceeds of the sale of the stock through the doctrine of cy pres or the application of Wis. Stat. § 701.10. However, even if we were to assume, arguendo, that either common law cy pres or § 701.10 were a tool with the potential to invalidate BC/BSUW's conversion plan, ABC must show that BC/BSUW is an entity operated exclusively for charitable purposes, see Bletsch, 25 Wis. 2d at 48, 130 N.W.2d at 278, and that the assets of BC/BSUW were gifts to an entity which operated exclusively for charitable purposes. See § 701.10(1). ABC has not done so.

¶ 13. The record conclusively shows that BC/BSUW has not been operated exclusively for charitable purposes. At least since 1979 when Associated Hospital Service, Inc. was reorganized as BC/BSUW, it has provided health insurance to individuals who paid premiums. Although it operated as a nonprofit corporation, being a nonprofit, non-stock corporation is different from operating exclusively as a charitable entity. For example, BC/BSUW has not qualified for I.R.C. § 501(c)(3) (2000) status because that section requires, among other things, that the organization be operated "exclusively for religious, charitable ... or educational purposes." Additionally, there is nothing in the record which shows BC/BSUW was created or maintained through charitable gifts. It sold insurance to people who paid premiums to become policyholders. Therefore, we conclude that the Commissioner was correct in determining that neither the cy pres doctrine nor Wis. Stat. § 701.10 is an impediment to the plan of conversion.

Wis. Stat. §§ 181.1301 and 181.1302.

¶ 14. ABC contends that the acquisition of BC/BSUW's assets by the holding company, which in turn issued stock equivalent to the assets' value and then transferred the stock to the Foundation, was a distribution which violated Wis. Stat. §§ 181.1301 and 181.1302(3). ABC argues that because the Foundation will sell the former assets of BC/BSUW as shares of stock and then donate the shareholders' payments to the Medical College of Wisconsin and the University of Wisconsin Medical School, BC/BSUW has made an illegal distribution. ABC argues that only distributions which are in accord with the distributions which could have been made on dissolution under BC/BSUW's original 1939 articles of incorporation are lawful. We conclude that ABC's argument is without merit for a number of reasons.

¶ 15. First, a corporate conversion is not a corporate dissolution. A dissolution terminates the corporation's legal existence and is the event immediately proceeding the liquidation or winding-up of a corporation's business. Black's Law Dictionary 486 (7th ed. 1999). The methods for dissolution of a solvent insurance corporation are set out in Wis. Stat. § 613.74. Those statutes envision a cessation of doing business by the corporation. A conversion, on the other hand, does not end the corporation's on-going business activities, but instead is a change in the corporate form of doing business. Black's Law Dictionary at 332. The methods to convert a service insurance corporation into a stock or a mutual insurance corporation are set out in Wis. Stat. § 613.75, which incorporates some of the provisions of Wis. Stat. § 611.76.

¶ 16. Second, BC/BSUW's articles of incorporation were amended in 1979 to permit distributions to "the medical colleges" upon dissolution. ABC does not argue that BC/BSUW's members were without authority to amend its articles of incorporation. Nor could it so contend, as the articles of incorporation filed in 1939 specifically permit amendments. Therefore, we conclude that ABC's reliance on the 1939 articles is misplaced.

¶ 17. Third, while it is true that Wis. Stat. § 181.1301 states that "[ejxcept as provided in s. 181.1302, a corporation may not make any distributions," the payments to the medical schools do not fit within the statutory definition of a "distribution." Wisconsin Stat. § 181.0103(10) instructs that " '[distribution1 means the payment of a dividend or any part of the assets, income or profit of a corporation to its members, directors or officers...." Here, the objected-to payments to the Medical College of Wisconsin and the University of Wisconsin Medical School are not payments to BC/BSUW's, the holding company's or the Foundation's members, directors or officers. Additionally, if we were to stop our examination with the transfer of the newly issued stock to the Foundation, which is proposed as a non-stock corporation organized under ch. 181, exempt from federal income taxes under I.R.C. § 501(c)(4) and without members, we would also conclude that no distribution occurred. The Foundation is not a member, director or officer of the holding company or of BC/BSUW. Therefore, the stock transfer to the Foundation is not a distribution as defined in § 181.0103(10).

¶ 18. Fourth, Wis. Stat. § 181.1302 was created by 1997 Wis. Act 79, § 48, effective January 1, 1999, which repealed and recreated ch. 181. Section 181.1302 permits distributions from non-stock corporations, which distributions had previously been prohibited. Those changes were in accord with the legislature's decision to permit non-stock corporations to operate on a for-profit basis. See Leg. Ref. Bureau Analysis. However, there is nothing in chs. 181, 611 or 613 to indicate that those revisions were intended to impose new obligations on a non-stock corporation seeking approval for a statutory conversion.

¶ 19. And finally, BC/BSUW's plan of conversion appears to have been drawn to equitably address the value BC/BSUW accumulated while it was a nonprofit entity so that the Commissioner would conclude that conversion was not contrary to the interests of the public, pursuant to Wis. Stat. § 611.76(7). The plan did so through a public stock sale and the immediate gifting of all the proceeds received from the sale to the Medical College of Wisconsin and the University of Wisconsin Medical School. By requiring the gifting of all the proceeds, the plan prevents the new shareholders who pay for shares in the for-profit corporation from acquiring an interest in the value BC/BSUW accumulated as a nonprofit entity, and it affords the benefit of that value to two other entities that are operated to serve the public good, the Medical College of Wisconsin and the University of Wisconsin Medical School. Accordingly, we agree with BC/BSUW that Wis. Stat. §§ 181.1301 and 181.1302 cannot be applied to reverse the Commissioner's approval of BC/BSUW's plan of conversion, but rather, compliance with the relevant provisions of § 611.76 is the proper focus for determining whether the conversion is lawful.

Wis. Stat. §§ 611.76 and 613.75.

¶ 20. Wisconsin Stat. § 613.75 authorizes the conversion of a service insurance corporation into a stock insurance corporation. It states in relevant part:

(1) AUTHORIZATION. Any service insurance corporation may be converted into a stock insurance corporation under ch. 611 upon complying with sub. (2) and as much of s. 611.76 as is applicable

Wisconsin Stat. § 611.76 requires a resolution by the board of the company petitioning to convert, stating that the conversion is in the best interests of the policyholders, the reasons for and the purposes of the proposed conversion and its anticipated effect on the policyholders. Section 611.76(2). The Commissioner must then investigate the application and plan of conversion, appoint an appraisal committee, examine the financial circumstances of the company and determine whether it is operated according to law and whether it will continue to be lawfully operated under the plan of conversion. Section 611.76(3)-(4). Hearings are to be held before a decision is made under subsec. (7). Section 611.76(6).

¶ 21. After a full review of BC/BSUW's application and plan of conversion, the Commissioner concluded that the requirements of Wis. Stat. § 611.76 that are applicable to the proposed conversion had been met. The Commissioner also concluded that the reasonable expectations of the public would be served by the plan and that the plan did not violate the law, was not contrary to the interests of the public or to the interests of the policyholders. The Commissioner further concluded that the plan was not detrimental to the safety and soundness of the insurer or the contractual rights and reasonable expectations of the policyholders. None of these conclusions, except as they are impacted by the proposed use of the stock sale proceeds which we have discussed in the preceding sections of this opinion, is contested by ABC; therefore, we do not examine them in detail. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285, 292 (Ct. App. 1998) ("[I]n order for a party to have an issue considered by this court, it must be raised and argued within its brief."). Accordingly, we conclude that the Commissioner's interpretation of Wis. Stat. §§ 613.75 and 611.76 as applied to the BC/BSUW conversion from a nonprofit, non-stock corporation to a for-profit, stock corporation is reasonable and that denying approval is not more reasonable. Therefore, we affirm the decision of the circuit court.

CONCLUSION

¶ 22. We affirm the judgment of the circuit court without deciding the standing issue raised by BC/BSUW because we conclude that (1) neither the cy pres doctrine, nor Wis. Stat. § 701.10, nor Wis. Stat. § 181.1302(3) applies to the conversion of BC/BSUW, and (2) the Commissioner's approval of the plan of conversion represents the more reasonable interpretation and application of the statutes the Commissioner is charged with administering.

By the Court. — Judgment affirmed.

       AARP has now been voluntarily dismissed from the appeal.

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

       Its initial articles of incorporation provided that upon dissolution the net assets of the company were to be disbursed
        pro rata to participating hospitals with which Associated Hospital Service, Inc. had had contracts for patient services.

       In the restated articles filed in 1979, a paragraph was added permitting distributions upon dissolution to "the medical colleges." Additionally, BC/BSUW's articles of incorporation were changed in 1998 to permit BC/BSUW's board to establish a plan to distribute the corporation's unrestricted net assets if dissolution were to occur. All restricted net assets were to be distributed in accord with the restrictions present upon receipt of the assets by the company.

       The Medical College of Wisconsin works "in the interest of public and private health ... to give free medical, surgical and hospital treatment and care to the sick and afflicted." See Commissioner's Findings of Fact, ¶ 22, which are uncontested by ABC.

       The University of Wisconsin Medical School serves "the public interest by promoting service to the public ... designed to educate people and improve the human condition." Its mission is, as is that of the Medical College of Wisconsin, to provide health care education, research, patient care and community service. See Commissioner's Findings of Fact, ¶¶ 22, 23, which are uncontested by ABC.

       ABC also relies on Wis. Stat. § 613.69 to bolster its contentions regarding cy pres and Wis. Stat. §§ 181.1301 and 181.1302. However, as this argument was not made to either the Commissioner or the circuit court, we do not consider it here. County of Columbia v. Bylewski, 94 Wis. 2d 153, 171, 288 N.W.2d 129, 138-39 (1980).

        See Wis. Stat. § 181.28 (1995-96).


source: Caselaw Access Project

author: HOOVER, EJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Ronald J. Frank, Defendant-Appellant.

    Court of Appeals

      No. 01-1252-CR.

      Submitted on briefs December 3, 2001.

      Decided December 11, 2001.

    2002 WI App 31
    (Also reported in 640 N.W.2d 198.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jane Krueger ; Smith of Oconto Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review filed.

   HOOVER, EJ.

¶ 1. Ronald Frank appeals a judgment of conviction for sexual contact with a child under the age of thirteen years, contrary to Wis. Stat. § 948.02(1). He argues that (1) the trial court erred when it ruled that other acts evidence would be admissible; (2) it was plain error when the trial court admitted evidence of a polygraph examination and statements made during and immediately following that examination; and (3) the trial court's evidentiary rulings prevented the real controversy from being tried. We conclude that Frank waived his right to appeal the other acts ruling by entering into a Wallerman stipulation, any error regarding the polygraph examination was not plain and the real controversy was tried. See State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996). We therefore affirm the judgment.

I. Background

¶ 2. On April 12-13, 1997, Frank attended a birthday party. Frank, a recovering alcoholic subject to blackouts, testified that he was drinking at the party but not to the point of blacking out. Frank even testified that he was not so intoxicated that he could not drive. Further, Frank testified that he had a history of drinking to the point of passing out and sleeping naked in the living room when he visited the home.

¶ 3. Two years later, Frank was charged with sexual contact with a child under the age of thirteen. The State filed a motion to introduce other acts evidence at trial to show intent and motive. The evidence involved testimony from another child under thirteen who claimed Frank improperly touched her. The trial court granted the motion after a hearing, but no written order was entered. Frank entered into a Waller-man stipulation, thereby conceding intent and motive. A jury found Frank guilty, and the trial court entered judgment and sentenced him to forty years in prison. Frank now appeals.

II. Wallerman Stipulation

¶ 4. Frank argues that he was, once the trial court erroneously deemed other acts evidence admissible, "required" to enter into the Wallerman stipulation He further argues that the Wallerman stipulation deprived him of the right to present evidence that his intent was negated by voluntary intoxication, which he characterizes as his only viable defense. The State maintains that Frank was not required to enter into the Wallerman stipulation and that, by doing so, he waived his right to appeal the other acts ruling. It also contends that Frank had no viable defense precluded by the Wallerman stipulation and therefore gave up nothing.

¶ 5. We conclude that the trial court's ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we also agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation.

¶ 6. In Wallerman, we held that a defendant can concede elements of a crime in order to avoid the introduction of other acts evidence. Id. at 167-68. Whether to allow such a stipulation is within the trial court's discretion. See id. at 168 n.4. We later concluded that an attorney's failure to know and apply Wallerman was deficient performance and prejudiced the outcome of the trial, thereby constituting ineffective assistance of counsel. State v. DeKeyser, 221 Wis. 2d 435, 443, 585 N.W.2d 668 (Ct. App. 1998).

¶ 7. Frank claims that DeKeyser "requires . .. that defense counsel enter into a Wallerman stipulation once the motion in limine to exclude such evidence has been denied. Trial counsel was therefore forced to enter into a Wallerman stipulation. . . ." DeKeyser says no such thing. Rather, DeKeyser's attorney was deficient for not knowing about Wallerman and, therefore, for failing to strategize whether the defendant should have conceded elements of a crime in order to avoid the introduction of other acts evidence. DeKeyser, 221 Wis. 2d at 443. The key phrase is that the defendant may concede. There is no requirement that a defendant must concede an element if the trial court rules that other acts evidence is admissible. Indeed, one of the issues in DeKeyser was whether the defendant would have conceded an element had his attorney known and advised him about Wallerman. See DeKeyser, 221 Wis. 2d at 443.

¶ 8. Here, the trial court ruled the other acts evidence admissible but it was not, in fact, ever admitted at trial. Frank entered into the Wallerman stipulation on the issues whether the touching that constituted the charged sexual contact "was done intentionally" and whether it was done "with the purpose to become sexually aroused or gratified." He thereby rendered the evidence inadmissible.

¶ 9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. We agree with the Washington Court of Appeals' observation: "Error cannot be assigned to a trial court ruling denying a motion in limine to exclude evidence because the ruling is advisory and tentative. ... The error, if any, is committed, not at the time of the ruling, but only when evidence is improperly admitted over objection at trial." State v. Austin, 662 P.2d 872, 874 (Wash. Ct. App. 1983) (citations omitted).

¶ 10. Similarly, the Maryland Court of Special Appeals noted:

[T]here is substantial authority for the proposition that . the denial of a motion in limine cannot in and of itself constitute reversible error. State v. Garrett, 183 N.W.2d 652 (Iowa 1971). The court there stated:
"It may be error (to deny a motion in limine) but cannot be reversible error. The reason is simple. The objectionable material has not yet reached the jury's ears. It may never reach the jury. ... It is only when the (objectionable) material is offered in the jury's presence that the harm or error, if any, has been done."

Ory v. Libersky; 389 A.2d 922, 930 (Md. Ct. Spec. App. 1978); accord Harley-Davidson Motor Co. v. Daniel, 253 S.E.2d 783, 785 (Ga. Ct. App. 1979).

¶ 11. Frank argues that the general rule should not be applied here because the other acts evidence was rendered inadmissible when Frank entered into the Wallerman stipulation. By that stipulation, Frank gave up his right to contest intent issues and to present the defense of voluntary intoxication with respect to those issues.

¶ 12. A defendant can avoid the impact of a pretrial ruling that evidence of his prior convictions was admissible to impeach him and preclude the State from introducing the evidence of his prior convictions by declining to take the stand in his defense. To follow that course, however, the defendant gives up his right to testify in his own defense. The Supreme Court declared in Luce v. United States, 469 U.S. 38, 39-43 (1984), that if a criminal defendant takes that course and declines to testify in response to a trial court's ruling denying his motion to forbid use of his prior conviction to impeach his credibility, he is not entitled to appellate review of that ruling.

¶ 13. The Supreme Court recently elaborated on the choice confronted by the defendant in Luce\

[H]ere petitioner runs into the position taken by the Court in a similar, but not identical, situation in Luce v. United States, 469 U.S. 38 (1984), that "[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative." Id., at 41. Only when the government exercises its option to elicit the testimony is an appellate court confronted with a case where, under the normal rules of trial, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous. In our view, there is nothing "unfair," as petitioner puts it, about putting petitioner to her choice in accordance with the normal rules of trial.

Ohler v. United States, 529 U.S. 753, 759 (2000).

¶ 14. Precisely the same thing can be said here. Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. With respect to that choice, what the Supreme Court said in Ohler can be said here: "[T]here is nothing 'unfair'. . . about putting [Frank] to [his] choice ...." Id.

¶ 15. According to the Supreme Court, we should not speculate whether the State would actually have introduced the other acts evidence if Frank had not entered into the Wallerman stipulation. In Luce, the Court said:

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government could have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.

Id. at 42. The State might have elected not to use the other acts evidence to avoid diverting the jury's attention from the victim at hand to the victim of the "other acts." It might also have elected not to use the other acts evidence to avoid the risk of reversal of the conviction. Frank may not obtain relief based on speculation as to whether the evidence would actually have been admitted absent the Wallerman stipulation. Such speculative harm is not sufficient to warrant review of the trial court's ruling.

¶ 16. Frank also argues that he was harmed by the trial court's ruling that other acts evidence was admissible because he gave up his right to present a defense on the issue of intent and purpose. However, by his own admission, Frank had no defense to present on those issues and, therefore, Frank gave up nothing when he chose between the Wallerman stipulation and the possible presentation of other acts evidence. Frank testified that he did not touch the victim. If Frank invoked an intoxication defense, he would be admitting the actions but claiming he lacked intent because he was intoxicated. Frank was not prejudiced by having to choose between defenses that are diametrically opposed and patently inconsistent.

¶ 17. Frank described the nature of his defense to the charge in a written response to the State's motion to admit the other acts evidence: "The defendant does not dispute the claim that if there were touching that it was for either [sic] sexual gratification. He claims that. the touching did not happen." That statement was made before the trial court ruled the other acts evidence admissible and therefore was not the product of. the trial court's ruling.

¶ 18. Frank suggests that he would have mounted an intoxication defense on the issue of intent. However, Frank's trial testimony revealed that he had no viable intoxication defense to offer. The alleged sexual contact with the victim occurred during the night and early morning hours of April 12-13, 1997. Frank testified that, notwithstanding the fact that he had been drinking on April 12 and that he had suffered alcoholic blackouts on other occasions, he did not have an alcoholic blackout on April 12 or 13, 1997. On the contrary, he testified that he "remember[ed] that day very well" and that he was "clear what [he] did" on the evening of April 12-13. Describing the effect of his drinking on the occasion in question, Frank testified:

I was very much aware of how much I had going on that night. I was drinking. I was not in the blackout state. I was not even intoxicated to the point where I didn't think I could drive, and I did leave the house at about 2:30, quarter after 2:00, 2:30 or so, right in that area is when I decided that I wasn't gonna stay there.

¶ 19. Frank's testimony not only fails to support, but affirmatively belies an intoxication defense. The degree of intoxication that would be necessary to establish an intoxication defense would have to have been significantly more than drinking that did not even render Frank incapable of driving and that did not in any way impair his recollection of the evening in question. See generally State v. Strege, 116 Wis. 2d 477, 482-91, 343 N.W.2d 100 (1984). Based upon Frank's elected strategy, the only defense available was the one Frank pursued: that the acts described by the victim did not occur. The trial court's ruling on the admissibility of the other acts evidence did not prejudice Frank. He gave up no viable defense when he entered into the Wallerman stipulation.

III. Real Controversy

¶ 20. Frank argues that the real controversy was not tried because entering into the Wallerman stipulation precluded him from presenting his voluntary intoxication defense. See Wis. Stat. § 752.35. He contends that once the trial court ruled that the other acts evidence was admissible, he had to enter the stipulation. We conclude that the real controversy was not the defense Frank could have presented. Rather, the real controversy in this case was whether Frank was present and touched the victim. That was tried.

¶ 21. Under this heading in his brief, Frank complains about hearsay testimony from Arlene B., the victim's grandmother. At trial, Arlene testified about a conversation in which her granddaughter revealed the secret that "Frank had crawled into bed with her and taken her underwear off and was just doing other things . ..The foregoing quote is the full extent to which Arlene testified about Frank's actions toward her granddaughter.

¶ 22. This alleged hearsay has nothing to do with whether the reed controversy was tried. Moreover, the testimony was not erroneously admitted. It was introduced to explain how the sexual assault allegations came out and how the incident was first reported, and the jury received a proper limiting instruction. Frank's contention that "the details of the alleged sexual conduct" made this testimony inadmissible hearsay fails. The record discloses that Arlene did not testify as to details concerning the assault itself.

IV Evidence of Polygraph Examination

¶ 23. Frank argues that the State impermissibly presented evidence to the jury about a polygraph examination. A police officer testified that he asked Frank if he would take a polygraph. The officer said Frank agreed to take one, but he did not testify whether a polygraph was administered. Subsequently, David Thompson, an "expert forensic interviewer," testified that he interviews people for the purpose of court appearances. He testified as to the details of his interview with Frank.

¶ 24. Frank contends that it is "clear beyond any possible doubt, no reasonable juror could have failed to conclude that Mr. Thompson was the polygraph examiner and that the statements to which he testified were made to him during the course of administering the polygraph examination ...We reject his contentions because they are neither supported nor logically compelled by the record. Moreover, Thompson, the "expert forensic examiner" Frank contends was undoubtedly the polygraph examiner, never mentioned the word polygraph in his testimony. We conclude that the State presented no evidence to the jury regarding Frank's polygraph examination.

¶ 25. Even if we had concluded that the trial court erred by allowing Thompson to testify, the error did not rise to the level of plain error. The "plain error" doctrine set forth in Wis. Stat. § 901.03(4) requires Frank to establish that there indeed was error and that the error was plain. See United States v. Olano, 507 U.S. 725, 732-34 (1993). In this context, plain "is synonymous with 'clear' or, equivalently, 'obvious.'" Id. at 734. Further, a plain error is one that is "both obvious and 'substantial' or 'grave,' and the rule is 'reserved for cases where there is the likelihood that the [error] has denied a defendant a basic constitutional right.'" State v. Vinson, 183 Wis. 2d 297, 303, 515 N.W.2d 314 (Ct. App. 1994) (citations omitted). Frank identified no basic constitutional right implicated, and he concedes,

"[t]here is no evidence in the record as to the time separation, if any, between the polygraph examination and-the post-polygraph interview ... The record does not reveal the circumstances under which Frank made his statements to Thompson. It is not possible to say that admission of the statements was error, much less "plain" error. Any perceived error is merely speculative.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted.

       In State v. Wallerman, 203 Wis. 2d 158, 167-68, 552 N.W.2d 128 (Ct. App. 1996), we set out a specific procedure to follow when the defendant wants to concede an element of a crime in order to avoid introduction of other acts evidence.

       In both State v. Austin, 662 P.2d 872, 874 (Wash. Ct. App. 1983), and Ory v. Libersky, 389 A.2d 922, 930 (Md. Ct. Spec. App. 1978), the trial court's ruling admitting the evidence was made by denying a motion in limine to exclude the evidence. Here it was made by granting a motion in limine seeking admission of the evidence. We view the difference as inconsequential.

       Frank seems to be suggesting that had the State not attempted to introduce the other acts evidence and the trial court not ruled that evidence admissible, he would have testified differently at his trial, providing a basis for an intoxication defense. We reject this argument because it would mean one version would have been a fabrication.

       Whether the State may elicit if a defendant was asked to take or agreed to take a polygraph test is not at issue in this case.

       In United States v. Olano, 507 U.S. 725, 732-34 (1993), the Supreme Court interpreted the federal plain error doctrine set out in Fed. R. CRiM. E 52(b). That rule was the model for Fed. R. Evid. 103(d), and Wis. Stat. § 901.03(4) is substantially identical to Rule 103(d). Therefore, federal decisions like Olano interpreting Rule 52(b) are "highly relevant in defining the scope of [§ 901.03(4)]. Virgil v. State, 84 Wis. 2d 166, 190, 267 N.W.2d 852 (1978).


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Dennis L. Daggett, Defendant-Respondent.

    Court of Appeals

      No. 01-1417-CR.

      Submitted on briefs October 18, 2001.

      Decided December 11, 2001.

    2002 WI App 32
    (Also reported in 640 N.W.2d 546.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Russell E. Berg, district attorney.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Julie A. Smith of Meno-monie.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 2-19-02.

       Originally assigned as a one-judge appeal under Wis. Stat. Rule 752.31(2), this case was reassigned to a three-judge panel by order dated December 5,2001. See Wis. Stat. Rule 809.41(3). All statutory references are to the 1999-2000 version unless otherwise noted.

   CANE, C.J.

¶ 1. The State appeals from a pretrial order suppressing the results of a chemical analysis of Dennis Daggett's blood. We reverse the order because we conclude that the warrantless blood draw, performed by a doctor in the police booking room, was reasonable and, therefore, constitutional.

Background

¶ 2. The essential facts are undisputed. Daggett was arrested for operating while intoxicated after citizen informants contacted the police. The informants reported that Daggett had driven his car into their driveway, had driven down the middle of the road away from their residence, and had returned to the residence on foot. The informants said Daggett appeared to be under the influence of intoxicants or other substances.

¶ 3. Deputy Tom Gunderson responded to the call and found Daggett asleep at the informants' residence. Gunderson woke Daggett, observed that Daggett appeared to be intoxicated and asked him to perform field sobriety tests. Daggett refused and Gunderson arrested him for operating a vehicle while under the influence.

¶ 4. Gunderson transported Daggett to the county jail where he read Daggett the Informing the Accused form and asked whether Daggett would submit to a test to determine the amount of alcohol in his blood. Daggett refused. Nonetheless, Daggett's blood was withdrawn without a warrant in the booking room at the jail by Dr. Eugene Jonas while two officers restrained Daggett. The blood test results revealed a blood alcohol concentration of .336%. Daggett was charged with operating while intoxicated (third offense), and operating with a prohibited alcohol concentration (third offense), contrary to Wis. Stat. § 343.63(1)(a) and (b), respectively.

¶ 5. Daggett moved to suppress the results of the blood test on grounds that the blood draw was unlawful because it took place in the county jail booking room, rather than in a hospital. At the motion hearing, Gunderson testified that it is the sheriffs department's policy not to take defendants to the hospital for a blood draw, but rather to have dispatch call a doctor to the jail. "If there isn't a doctor available, we usually go to River Falls Area Hospital," Gunderson testified. Gun-derson explained that it is his understanding that the department's policy is designed to save money by avoiding the cost of emergency room visits. The circuit court granted Daggett's motion to suppress and this appeal followed. We reverse and remand to the circuit court for further proceedings.

Discussion

¶ 6. The State argues that the blood draw in the booking room was justified under State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). Bohling outlined the constitutional requirements for warrantless blood tests in Wisconsin:

[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

Id. at 533-34 (footnote omitted).

¶ 7. At issue here is the third requirement-:whether the method used to take the blood sample was a reasonable one and was performed in a reasonable manner. Whether the warrantless blood draw — a search under the Fourth Amendment to the United States Constitution and art. I, §-11, of the Wisconsin Constitution — was reasonable is a question of constitutional law that we review de novo. See State v. Thorstad, 2000 WI App 199, ¶ 4, 238 Wis. 2d 666, 618 N.W.2d 240.

¶ 8. Daggett concedes that having a physician draw the blood presents no constitutional or statutory problems. However, he objects to the location of the blood draw: the booking room at the county jail. Daggett takes the position that for a blood draw to be conducted in a constitutionally reasonable manner, it "must be conducted by medical personnel in a hospital setting." Daggett's argument is based on Bohling, Thorstad and Schmerber v. California, 384 U.S. 757 (1966), all of which involved blood draws that took place in hospital settings.

¶ 9. Daggett argues that, pursuant to Schmerber, blood draws in a non- medical environment are unconstitutional. Schmerber stated:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Schmerber, 384 U.S. at 771-72. From this statement, Daggett infers a two-part requirement for blood draw-si that blood be withdrawn by medical personnel in a medical environment.

¶ 10. Daggett also finds support in Thorstad, where the court stated, "Like the defendants in Schmer-ber andBohling, Thorstad's blood test was performed in a medical environment and therefore done by a reasonable method in a reasonable manner." See Thorstad, 2000 WI App 199 at ¶ 15.

¶ 11. The State argues that neither Bohling nor Thorstad established a bright line rule that blood can only be withdrawn in certain locations, and that both cases just happened to involve a hospital setting. Thus, the State contends case law does not mandate that blood be withdrawn at a hospital or other facility designed to perform medical procedures. The State argues that drawing blood in a booking room is reasonable because blood draws are commonly done in non-medical locations, such as in libraries and schools.

¶ 12. Furthermore, the State contends that Pierce County has good reasons for arranging to have blood withdrawn at the jail by a medical professional. First, the environment in the jail's booking room does not pose a personal risk of infection and pain to the person whose blood is withdrawn. Second, personnel are available at the jail to assist if a defendant physically refuses to cooperate with the blood draw. Third, it saves Pierce County citizens money because it is less expensive to pay a doctor to visit the jail than to pay for an emergency room visit.

¶ 13. The circuit court concluded that there may be some circumstances where a blood draw taken at a location other than a medical facility would pass the constitutional test of reasonableness. The court continued: "However, based on the Bohling case and the Thorstad case, it would be the rare case in which a blood draw taken at a facility other than one designed to perform medical procedures, such as a clinic, nurse's office in a jail or hospital would be reasonable." The court found that the blood draw in this case was not reasonable because the State "advanced no compelling reason why the blood draw needed to take place in the booking room of the Pierce County Jail rather than in a hospital setting."

¶ 14. We conclude that the method used to take the blood sample was a reasonable one and was performed in a reasonable manner. At the outset, we reject Daggett's assertion that blood draws must take place in a hospital setting in order to be constitutionally reasonable. See State v. Sickler, 488 N.W.2d 70 (S.D. 1992) (drawing of blood in county jail setting was constitutionally permissible). Although Schmerber urged caution, it did not categorically reject the possibility that a blood draw could take place in a non-medical setting. See Schmerber, 384 U.S. at 771-72.

¶ 15. Rather than establishing a bright-line rule, Schmerber recognized a spectrum of reasonableness. At one end of the spectrum is blood withdrawn by a medical professional in a medical setting, which is generally reasonable. Toward the other end of the spectrum is blood withdrawn by a non-medical profession in a non-medical setting, which would raise "serious questions" of reasonableness. See id.

¶ 16. A blood draw by a physician in a jail setting may be unreasonable if it "invites an unjustified element of personal risk of infection and pain." See id. There is no such evidence here. It is undisputed that the blood draw was performed by a physician, which satisfies both statutory and constitutional requirements. See Wis. Stat. § 343.305(5)(b). Further, the physician used a blood test kit provided by the State Laboratory of Hygiene.

¶ 17. Additionally, there is no evidence that the physician determined that the blood draw could not be performed consistent with medically accepted procedures. In the absence of evidence to the contrary, it is unreasonable to conclude that a medical professional authorized to draw blood under Wis. Stat. § 343.305(5)(b) would perform his or her duties in a manner that would endanger the health of the blood donor.

¶ 18. Finally, there is no evidence in the record to suggest that the jail booking room, although not a sterile environment, presented any danger to Daggett's health. As the State notes, blood is commonly withdrawn in non-sterile environments using medically accepted procedures. We conclude that the blood draw location was reasonable. Therefore, we reverse the order suppressing the blood test results and remand the matter to the circuit court for further proceedings.

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

       Wisconsin Stat. § 343.305(5)(b) provides a list of those who are qualified to draw blood in operating while intoxicated cases:
      ft)) Blood may be withdrawn from the person arrested for violation of s. 346.63 (1), (2), (2m), (5) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or a local ordinance in conformity with s. 346.63 (1), (2m) or (5), or as provided in sub. (3) (am) or (b) to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician. (Emphasis added.)

       The State also argues that because Wis. Stat. § 343.305(5) (b) only specifies the qualified medical professionals who can draw blood and fails to require a specific location for the blood draw, there is no statutory requirement that blood be drawn in a medical environment. Even if the State is correct, the location nonetheless may be limited constitutionally.

       Sometimes the circuit court used the term "hospital" while other times it referred to medical facilities. Although Daggett argues that the only reasonable medical environment is a hospital, case law contradicts his assertion. Even though the blood draws in Schmerber and Thorstad took place in a hospital, both courts used the more generic term "medical environment" in their discussion. See Schmerber v. California, 384 U.S. 757, 772 (1966); State v. Thorstad, 2000 WI App 199 ¶ 15, 238 Wis. 2d 666, 618 N.W.2d 240. Although we decline to decide whether specific facilities (e.g., a nurse's office in a jail) qualify as a "medical environment," we conclude that the term is not limited to hospitals. Moreover, we conclude that a blood draw can, in some circumstances, be reasonable in a non-medical setting provided the setting does not pose a "personal risk of infection and pain." See Schmerber, 384 U.S. at 771-72.


author: PETERSON, J.

text:
    Renee K. VanCleve and Thomas C. VanCleve, Plaintiffs-Respondents, v. City of Marinette and Wausau Insurance Company, Defendants-Appellants, Kenneth Keller, d/b/a Keller Cement Contractors, Keller Cement Contractors, Auto Owners Insurance, and State Farm Fire & Casualty Co., Defendants.
    Court of Appeals

      No. 01-0231.

      Oral argument December 3, 2001.

    Decided December 18, 2001.

    2002 WI App 10
    (Also reported in 639 N.W.2d 792.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of and oral argument by James O. Moermond III of Law Office of Stilp and Cotton, Wausau.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of and oral argument by Jonny L. Waara of Petrucelli & Petrucelli, Iron River, Michigan.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 4-22-02.

   PETERSON, J.

¶ 1. Wisconsin Stat. § 81.17 provides conditional protection to a municipality when it is sued along with, for example, a contractor for injuries caused by highway defects. If both the municipality and the contractor are found liable, regardless of the apportionment between them, the contractor is responsible for the entire award, if it can pay. The municipality must pay only if the contractor is unable to pay. However, what happens when the contractor settles with the injured person for less than the amount of the ultimate award? Must the municipality then pay the balance? That is the question here. We hold that the municipality is not responsible for paying any of the award.

BACKGROUND

¶ 2. On August 24, 1998, Renee VanCleve tripped and fell on a recently constructed curb and gutter in the City of Marinette. She sued the City and Kenneth Keller, a private contractor, alleging negligence in the construction and maintenance of the curb and gutter. The City asserted Wis. Stat. § 81.17 as one of several affirmative defenses. It also cross-claimed against Keller for contribution.

¶ 3. On August 5, 2000, VanCleve signed a Pier-ringer v. Hoger, 21 Wis. 2d 182,192-93,124 N.W.2d 106 (1963), release in favor of Keller releasing Keller from all claims. The City joined in a stipulation to dismiss Keller from the lawsuit. The stipulation expressly stated that the City's cross-claim against Keller was settled.

¶ 4. The case was tried to a jury, which found causal negligence as follows: the City 90%, Keller 9%, and VanCleve 1%.

¶ 5. The City then moved tb have VanCleve's claim dismissed based on Wis. Stat. § 81.17. The City argued that under the statute Keller was primarily liable for the entire judgment and the City was only secondarily liable. The City claimed that the judgment against it was not enforceable until execution of a judgment against Keller was returned unsatisfied. Because VanCleve settled with Keller and was unable to obtain a judgment against Keller, the City contended that VanCleve cannot recover against the City.

¶ 6. The trial court concluded that Wis. Stat. § 81.17 did not apply because of the Pierringer release and the stipulation and order to dismiss. The court reasoned that the statute required the City to keep Keller in the lawsuit. However, because the City did not object to the Pierringer release and, in fact, signed a stipulation to dismiss Keller, the court denied the City's motion and entered judgment against the City.

STANDARD OF REVIEW

¶ 7. Here, the question involves the application of a statute to undisputed facts. This is a question of law that we review independently of the trial court. Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 758-59, 300 N.W.2d 63 (1981). The guiding principle in statutory construction is to discern legislative intent. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986).

DISCUSSION

¶ 8. The City argues that the application of Wis. Stat. § 81.17 bars any recovery by VanCleve against the City. It contends that when the jury found Keller liable, Keller's liability became primary. Section 81.17 provides that if damages are caused by the negligence of the City and any other party, the other party shall be primarily liable. Id. Therefore, the City contends that the judgment against it is not enforceable until execution of a judgment against Keller is returned unsatisfied. Because VanCleve has failed to obtain a judgment against Keller, the City concludes VanCleve cannot recover against the City. The City further contends that it did not waive its affirmative defense under § 81.17 by failing to object to the Pierringer release or by dismissing its cross-claim against Keller.

I. Wisconsin Stat. § 81.17

¶ 9. Under the common law, municipalities were originally immune from tort liability. See Hayes v. Oshkosh, 33 Wis. 314, 318-19 (1873). Shortly after statehood, the legislature cracked open the door a bit by permitting lawsuits against municipalities for injuries caused by highway defects. Dickens v. Kensmoe, 61 Wis. 2d 211, 220, 212 N.W.2d 484 (1973). This was the forerunner to present-day Wis. Stat. § 81.15.

¶ 10. Municipalities responded by enacting ordinances to protect themselves from liability. Those "ordinances generally provided that when the negligence of a private tort-feasor had created the defect for which the municipality was also liable statutorily, the municipality's liability was only secondary to the liability of the private tort-feasor." Dickens, 61 Wis. 2d at 215.

¶ 11. In 1889, the legislature codified the ordinances in statutory form. A statute was enacted containing "almost verbatim the language of these city ordinances." Id. at 216. Following the 1898 revision, the statute has continued in substantially the same form as Wis. Stat. § 81.17 now reads. Dickens, 61 Wis. 2d at 216.

¶ 12. As Armour v. Wisconsin Gas Co., 54 Wis. 2d 302, 308, 195 N.W.2d 620 (1972), observed, Wis. Stat. §§ 81.15 and 81.17 must be read in tandem. Had this case arisen before these statutes were enacted, Van-Cleve could not have sued the City at all. Her only recourse would have been against Keller. He in turn would have been responsible for the entire judgment.

¶ 13. After Wis. Stat. §§ 81.15 and 81.17, Van-Cleve was able to sue both Keller and the City. However, the City retained a type of conditional immunity in that Keller was primarily liable. As before, Keller was responsible for the entire verdict, but only if he could pay. If he could not pay, then the City lost its protection, its secondary liability kicked in, and it had to pay any unsatisfied portion of the judgment.

¶ 14. Common law governmental immunity for tort claims was abrogated by Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962). Wisconsin Stat. § 81.15 "is no longer needed as a basis of liability and its existence is somewhat ambiguous." Dickens, 61 Wis. 2d at 218. In this context, § 81.17 may seem an anachronism as well. Nevertheless, the legislature has not seen fit to repeal the statute.

¶ 15. As stated, Wis. Stat. § 81.17 creates primary and secondary liability for injuries caused by highway defects. A curb and gutter falls under the definition of "highway." See Weis v. A.T. Hipke & Sons, Inc., 271 Wis. 140, 141, 72 N.W.2d 715 (1955). Section 81.17 provides that if damages are caused by the negligence of a municipality and any other party, that other party shall be primarily liable. The statute further states that "judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part."

¶ 16. In Weis, the court held that if a party other than the municipality had any liability to the plaintiff, the other party would be primarily liable under Wis. Stat. § 81.17 and the municipality could only be secondarily liable. Weis, 271 Wis. at 143. "[T]here can be neither joint nor primary liability on the part of the city if [the other party] has any liability to the plaintiff...." Id. In other words, the municipality remains primarily liable to the plaintiff "only when there is a failure to fasten what, in the absence of the statute, would be joint liability on someone else. . . ." Id. As soon as the other party is found liable, its liability becomes primary. Id.

¶ 17. In Dickens, the court determined that Wis. Stat. § 81.17 does not protect a municipality when only the municipality is liable for creating a highway defect. The court held that § 81.17 "creates a secondary liability on a town, city, village, or county, for defects in a highway which cause damage only when the negligence, wrong, or default of another tort-feasor also causally contributes to that defect." Dickens, 61 Wis. 2d at 220.

¶ 18. VanCleve claims, nonetheless, the purpose of Wis. Stat. § 81.17 is only to insulate the City from portions of any verdict for which it is not responsible. She argues the statute does not insulate the City from its own liability. In other words, she contends the statute makes the City secondarily liable for Keller's 9%, but it is still primarily liable for its 90%.

¶ 19. VanCleve cites no controlling authority. The basis for her argument is simply that the legislature would have expressly stated that the City was secondarily liable for its percentage of the liability.

¶ 20. We conclude, however, that Wis. Stat. § 81.17 is unambiguous. Even if it were ambiguous, the case law and the statutory history, as previously explained, lead to only one conclusion. The statute states that if the damages are caused by the wrong of the City "and of any person, or private corporation, such person or private corporation shall be primarily liable therefor." Wis. Stat. § 81.17. Therefore, a person who has any liability is liable for the entire judgment. See Weis, 271 Wis. at 143.

II. Pierringer Release

¶ 21. The City argues it did not waive its affirmative defense by failing to object to the Pierringer release. It contends there was no way it could have objected. According to the City, a non-settling tortfeasor has no control over a plaintiffs decision to settle with another tortfeasor.

¶ 22. A Pierringer release operates to impute to the settling plaintiff whatever liability in contribution the settling defendant may have to nonsettling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants. Pierringer, 21 Wis. 2d at 193.

¶ 23. Generally, one joint tortfeasor has a right to contribution from another joint tortfeasor for any sums the first tortfeasor is obligated to pay a plaintiff in satisfaction of the second's liability. Fleming v. Threshermen's Mut. Ins. Co., 131 Wis. 2d 123, 130, 388 N.W.2d 908 (1986). However, a Pierringer release by a plaintiff of one joint tortfeasor limits a second joint tortfeasor's liability to the amount reflecting its proportion of wrongdoing; this is because the second tortfeasor's right to indemnification or contribution from the first tortfeasor has been lost due to the plaintiffs actions. Fleming, 131 Wis. 2d at 131.

¶ 24. "A nonsettling tort-feasor has no control over a claimant's decision to settle with another tort-feasor." Unigard Ins. Co. v. Insurance Co. of N. Am., 184 Wis. 2d 78, 87 n.5, 516 N.W.2d 762 (Ct. App. 1994). In Johnson v. Heintz, 73 Wis. 2d 286, 291, 243 N.W.2d 815 (1976), a passenger in a car sued the driver and her insurance company, American Family Insurance. American Family then filed a third-party complaint against State Farm for contribution. State Farm insured the driver of a car that rear-ended the car the plaintiff rode in.

¶ 25. The plaintiff entered into a Pierringer release with State Farm over American Family's objection. Johnson, 73 Wis. 2d at 294-95. The trial court approved the settlement agreement. On appeal, our supreme court recognized that it was harmless error for the trial court to approve the settlement agreement. Id. The plaintiff did not have a right to settle with State Farm because there was no direct claim against State Farm. Id. at 297. However, the error was harmless because the parties could have taken steps to place themselves in a direct adversary position. Id. at 298.

¶ 26. The court reasoned that had State Farm "been an initial party defendant... no objection could be raised to the fact that the plaintiff and a joint tortfeasor defendant were exercising the option approved by Pierringer. "The settlement of the claim against a defendant under those circumstances requires that he be dismissed from the action." Id. at 297.

¶ 27. VanCleve argues that by failing to object to the Pierringer release, the City waived its affirmative defense under Wis. Stat. § 81.17 and implicitly agreed to become a joint-tortfeasor. VanCleve contends that the City could have objected to the Pierringer release because it was claiming secondary liability, but it chose not to do so.

¶ 28. Based upon the applicable case law, we conclude the City could not have kept Keller in the lawsuit by objecting to the Pierringer release. See Unigard Ins., 184 Wis. 2d at 87 n.5. Any attempt by the City to object to the Pierringer release would have been unsuccessful because VanCleve and Keller were direct adversaries. See Johnson, 73 Wis. 2d at 299.

¶ 29. VanCleve cites no authority to support her argument that a non-settling tortfeasor, claiming secondary liability as an affirmative defense, is required to object to a Pierringer release. The result of this would be to effectively prohibit a Pierringer release by barring VanCleve from settling her claim against Keller.

¶ 30. The Pierringer release, voluntarily agreed to by VanCleve and Keller, required that Keller be dismissed from the lawsuit. The City had no way of keeping Keller in the lawsuit and the Pierringer release effectively dismissed the City's cross-claim against Keller.

¶ 31. There are distinct consequences arising from the execution of a Pierringer release. "The existence of these consequences cannot be questioned and ought be a forewarning to the unwary." Unigard Ins., 184 Wis. 2d at 86. By opting for the Pierringer release, VanCleve gambled that the jury would not find Keller liable.

¶ 32. We conclude that the non-settling City, claiming secondary liability as an affirmative defense, was not required to object to a Pierringer release in order to retain its affirmative defense. It is VanCleve's responsibility to evaluate the effects of a Pierringer release and to determine whether the release is in her best interests.

III. Stipulation and Order

¶ 33. The City argues it did not waive its affirmative defense by stipulating to dismiss its cross-claim against Keller. It contends that, while the stipulation and order expressly waived the City's cross-claim against Keller, the Wis. Stat. § 81.17 affirmative defense was not waived because the stipulation and order did not mention the defense.

¶ 34. In contrast, VanCleve argues that the City waived its affirmative defense by dismissing its cross-claim against Keller. After VanCleve signed the Pierrin-ger release, the City signed the stipulation expressly settling the City's cross-claim against Keller.

¶ 35. The City's cross-claim for contribution and the affirmative defense are two distinct parts of the pleadings. The City's affirmative defense is not conditioned on its contribution claim, but is an independent and separate part of the City's answer. See Wis. Stat. § 802.01(1).

¶ 36. VanCleve cites no authority for the argument that dismissing the cross-claim against Keller waived the City's affirmative defense under Wis. Stat. § 81.17. The defense was not waived because the stipulation and order did not mention the City's affirmative defense.

¶ 37. In addition, the language dismissing the City's cross-claim in the stipulation and order was unnecessary. The cross-claim had already been rendered moot when VanCleve signed the Pierringer release. By a Pierringer release, Keller's liability was transferred to VanCleve, and any claim the City may have had against Keller was barred. See Pierringer, 21 Wis. 2d at 193. In other words, the City effectively lost its cross-claim for contribution when VanCleve signed the Pierringer release. For these purposes, the stipulation and order to dismiss was superfluous.

IV Settlement of Personal Injury Claims

¶ 38. VanCleve asserts that the City's arguments would stifle settlement of personal injury claims. She claims the "social policy favoring settlements is stronger than that favoring contribution among tort-feasors." See Smith v. Rural Mut. Ins. Co., 20 Wis. 2d 592, 603, 123 N.W.2d 496 (1963). According to Van-Cleve, application of Wis. Stat. § 81.17 does not promote settlement and runs counter to the abrogation of governmental immunity. See Holytz, 17 Wis. 2d at 29.

¶ 39. There are two problems with VanCleve's argument. First, as we have already held, the words of Wis. Stat. § 81.17 are unambiguous; See Dickens, 61 Wis. 2d at 217. Considerations of public policy cannot trump an unambiguous statute. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992).

¶ 40. Second, the public policy implications are not one-sided. VanCleve suggests settlements will be discouraged if the City's arguments prevail. However, it is possible that settlements will be discouraged whichever way we decide. On the one hand, if the City prevails, plaintiffs may no longer settle with non-municipal defendants for fear of the application of primary and secondary liability. On the other hand, if VanCleve prevails, settlement agreements may be rendered useless because municipalities will have the power to keep the non-municipal defendants in the lawsuit.

¶ 41. Therefore, the problem for settlements will not be resolved on the basis of who prevails here. Rather, the problem is with the statute and for the legislature to address. As far as we are aware, Wis. Stat. § 81.17 is unique. A municipality is not protected this way in any other kind of lawsuit. The historical reason for the statute disappeared when governmental immunity was abolished. As long as § 81.17 continues on the books, settlements will be discouraged.

By the Court — Judgment reversed.

       A Pierringer release operates to impute to the settling plaintiff whatever liability in contribution the settling defendant may have to nonsettling defendants and to bar subsequent contribution actions the non-settling defendants might assert against the settling defendants. Pierringer v. Hoger, 21 Wis. 2d 182, 192-93, 124 N.W.2d 106 (1963).

       The parties slightly misstate the issue. The briefs and oral argument focused on whether the trial court could enter judgment against the City. Wisconsin Stat. § 81.17 does not bat-entering judgment. Rather, the precise issue is whether Van-Cleve can enforce a judgment against the City. However, the practical import is the same. Therefore, we will treat the issue as presented by the parties.

       Wisconsin Stat. § 81.15 reads as follows:
      If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village. If the damages happen by reason of the insufficiency or want of repairs of a highway which any county by law or by agreement with any town, city or village is bound to keep in repair, or which occupies any land owned and controlled by the county, the county is liable for the damages and the claim for damages shall be against the county. If the damages happen by reason of the insufficiency or want of repairs of a bridge erected or maintained at the expense of 2 or more towns the action shall be brought against all the towns liable for the repairs of the bridge and upon recovery of judgment the damages and costs shall be paid by the towns in the proportion in which they are liable for the repairs; and the court may direct the judgment to be collected from each town for its proportion only. The amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to the commencement of actions brought under this section. No action may he maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.

       Wisconsin Stat. § 81.17 reads as follows:
      Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village or county would be liable, and such damages are caused by, or arise from, the wrong, default or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor; but the town, city, village or county may he sued with the person or private corporation so primarily liable. If the town, city, village or county denies its primary liability and proves upon whom such liability rests the judgment shall be against all the defendants shown by the verdict or finding to be liable for the damages; but judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on such return being made the defendant town, city, village or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.

        Weis suggests that the defendants in Wis. Stat. § 81.17 would be joint tortfeasors if it were not for the statute. Instead, under § 81.17, the defendants are tortfeasors with primary and secondary liability. Weis v. A.T. Hipke & Sons, Inc., 271 Wis. 140, 143, 72 N.W.2d 715 (1955).


author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kevin D. Jennings, Defendant-Appellant.
    Court of Appeals

      No. 01-0507-CR.

      Submitted on briefs November 6,

      Decided December 18, 2001.

    2002 WI App 16
    (Also reported in 640 N.W.2d 165.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen M. Compton, S.C., Delavan.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Sandra L. Tarver, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review granted 3-19-02.

   WEDEMEYER, PJ.

¶ 1. Kevin D. Jennings appeals from a judgment of conviction after he pled no contest to one count of third-degree sexual assault, contrary to Wis. Stat. § 940.225(3) (1999-2000). He also appeals from an order denying his postconviction motion. Jennings claims that the trial court erred when it failed to vacate the judgment despite the fact that the trial court never attained personal jurisdiction over him. Because the statute of limitations expired on the felony charge filed against him and personal jurisdiction over Jennings was not secured, we reverse.

I. BACKGROUND

¶ 2. This appeal has its genesis in a sexual assault that occurred on December 5, 1992. At 11:30 p.m., an unknown male accosted the victim, M.K., as she was entering her residence. He led her to the back of the residence and, against her will, forced her to engage in penis-to-vagina intercourse. Soon after, M.K. reported the incident and was taken to the Sexual Assault Treatment Center, where vaginal swabs were taken from her.

¶ 3. On November 7, 1994, Jennings was incarcerated at Dodge Correctional Institution on an unrelated charge. Buccal swabs were taken from Jennings by prison personnel. The DNA sample that was taken from Jennings was placed on the DNA Data Bank system on July 28, 1997. On December 1, 1998, a forensic scientist determined that the DNA sample given by Jennings matched the foreign profile from the vaginal swab of M.K.

¶ 4. On December 3, 1998, Milwaukee police detectives questioned Jennings at the Columbia Correctional Institution. On December 4,1998, the Milwaukee County District Attorney's office issued a criminal complaint alleging that on December 5, 1992, Jennings had committed second-degree sexual assault by having sexual intercourse with M.K., without her consent by use of force. On the same date, the district attorney's office obtained an order directing the superintendent to produce Jennings from the Columbia Correctional facility where he was serving a sentence for an unrelated prior conviction. The order required releasing Jennings to the custody of the Milwaukee County Sheriff for transportation and attendance at an initial appearance.

¶ 5. On December 6, 1998, Jennings made his initial appearance before a court commissioner and waived his right to a preliminary examination. On December 14, 1998, the district attorney's office filed a criminal information alleging one count of second-degree sexual assault. Jennings moved to dismiss the charge, based on the expiration of the six-year statute of limitations. The trial court denied the motion. The district attorney filed an amended information changing the charge to third-degree sexual assault, after which Jennings entered a no contest plea. At the same time, Jennings reserved the right to challenge the personal jurisdiction of the trial court.

¶ 6. After sentencing, Jennings moved for post-conviction relief challenging the judgment of conviction and the sentence asserting lack of personal jurisdiction by the trial court because the statute of limitations had expired. The motion was denied and Jennings now appeals.

II. ANALYSIS

¶ 7. Jennings contends that the trial court should have dismissed his conviction because the court failed to attain personal jurisdiction over him as a result of the State's failure to timely commence its criminal prosecution before the expiration of the six-year statute of limitations, Wis. Stat. § 939.74(1).

¶ 8. The State responds that when it filed a complaint and obtained the issuance of an order to produce within the limitation period, it timely commenced the prosecution. As a basis for its position, the State argues that when Wis. Stat. § 939.74(1) is read in conjunction with other statutes which provide that a prosecution is commenced by the filing of a complaint, § 939.74(1) is ambiguous. It claims, however, that the relevant statutes involved can be harmonized by implication. To not do so, reasons the State, would defeat the purpose of § 939.74(1). The State further suggests that it would be proper for us to conclude that a complaint and an order to produce are sufficient to commence a prosecution under the circumstances where the accused is in custody at the time. We are not convinced.

¶ 9. As germane to the disposition of this appeal, Wis. Stat. § 939.74 reads in pertinent part:

(1) [P]rosecution for a felony must be commenced within 6 years. . .. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.
(3) In computing the time limited by this section, the time... during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.

¶ 10. The other relevant statutes proposed by the State that allegedly create the ambiguity are Wis. Stat. §§ 967.05(1) and 968.02(2). Section 967.05(1) is included in chapter 967 denominated "CRIMINAL PRO-CEDUREGENERAL PROVISIONS." As relevant to the State's argument it reads: "A prosecution may be commenced by the filing of: (a) A complaint."

¶ 11. Wisconsin Stat. § 968.02(2) is contained in a chapter entitled "COMMENCEMENT OF CRIMINAL PROCEEDINGS." As relevant to the State's argument, it reads: "After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to s. 968.03. Such filing commences the action." Wisconsin Stat. § 967.05(1) was enacted in 1979 by chapter 291. Section 968.02(2) was enacted in 1977 by chapter 449. Wisconsin Stat. § 939.74 preceded both of these statutes by its enactment in 1955 in chapter 696, entitled "RIGHTS OF. THE ACCUSED: Time limitations on prosecutions."

¶ 12. Whether or not a statute is ambiguous is a question of law which we decide independently. State v. Denter, 121 Wis. 2d 118, 122, 357 N.W.2d 555 (1984). A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. at 123. Ambiguity, in the meaning of a statute, can be created by the interaction of separate statutes, as well as by the interaction of the words and structure of a single statute. F.P.R. v. J.M., 137 Wis. 2d 375, 386, 404 N.W.2d 530 (1987).

¶ 13. Wisconsin Stat. § 939.74(1) makes no mention of the filing of a complaint in determining the commencement of a criminal prosecution. Yet, as pointed out by the State, both Wis. Stat. § 967.05(1) and Wis. Stat. § 968.02(2) provide that the filing of a criminal complaint commences a prosecution. We agree with the State that the language in these other two statutes referencing the criminal complaint renders § 939.74 ambiguous. Clearly, there is a conflict in the language, but this conclusion does not complete our analysis.

¶ 14. "Where statutes on the same subject conflict or are inconsistent, this court must make every effort to harmonize them in order to give effect to the purpose of each statute." City of Milwaukee v. Kilgore, 185 Wis. 2d 499, 513, 517 N.W.2d 689 (Ct. App. 1994), aff'd, 193 Wis. 2d 168, 532 N.W.2d 690 (1995). In harmonizing conflicting statutes, however attractive the exercise of implying the existence of missing language may be, we are chary to engage in judicial legislation, if our method of harmonizing does not defeat the purpose of the statute under analysis. State ex rel. Reynolds v. Smith, 22 Wis. 2d 516, 521, 126 N.W.2d 215 (1964). The State seeks to harmonize the statutes by arguments of implication and equivalency. We now examine this suggested methodology.

¶ 15. The State reasons that just as a formal accusation commences a criminal prosecution for the purposes of the right to a speedy trial, so also should a formal accusation commence a criminal prosecution for statute of limitation purposes. This argument is based upon the rhetorical principle of comparison. This form of argumentation is subject to many potential infirmities. An argument by comparison is only as valid as the comparison is valid. Furthermore, this form of argument may fail because it proves too much. We now examine the objects of comparison proposed and conclude that the comparison fails.

¶ 16. Although the right to a speedy trial post-accusation and a statute of limitation on pre-accusation time share a common purpose against delay, any further similarities are not forthcoming. Instead, dissimilarities are readily evident. There is a significant difference between the nature of a right to a speedy trial and time restrictions placed upon a prosecution for a felony. The former has constitutional origins while the latter is a creature of legislative policy. The right to a speedy trial is "amorphous" in nature whose enforcement is determined by the application of a formula "relative and wholly dependent on the facts of the particular case." State v. Lemay, 155 Wis. 2d 202, 212, 455 N.W.2d 233 (1990) (referring to the Barko v. Wingo, 407 U.S. 514 (1972), factors). Whereas, the limitation placed upon felony prosecutions is statutory, direct, categorical and precise. In exacting terms, Wis. Stat. § 939.74 sets forth how and when a person formally becomes an accused. State v. Pohlhammer, 78 Wis. 2d 516, 521, 254 N.W.2d 478 (1977).

¶ 17. In Lemay, the supreme court ruled that' the sixth amendment speedy trial provision applies "once the putative defendant in some way formally becomes the accused." Id., 155 Wis. 2d at 209. In reaching its decision, the supreme court cited State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504, 508, 123 N.W.2d 305 (1963); State v. Ziegenhagen, 73 Wis. 2d 656, 664, 245 N.W.2d 656 (1976); and Hipp v. State, 75 Wis. 2d 621, 625, 250 N.W.2d 299 (1977). Significantly, our supreme court concluded that each case stood for the proposition that the right to a speedy trial did not attach until the issuance of a complaint and a warrant, a necessary two-step process. Lemay, 155 Wis. 2d at 209-10. Attachment does not occur until the two-step process has been completed. Subsumed in the State's argument is the weight it appears to give and the implication derived therefrom, to a portion of a sentence in the Fredenberg decision: "For the purpose of a speedy trial, the complaint, which is 'a written statement of the essential facts constituting the offense charged...' sec. 954.02 (1), Stats., commences a criminal prosecution and the warrant of arrest is based upon it." Fredenberg, 20 Wis. 2d at 508 (emphasis added). No such implication is mentioned or even suggested in either Ziegenhagen, Hipp, or Lemay, all of which followed Fredenberg in time. Nor should such implication be drawn from Fredenberg because such reasoning flies in the face of an express statement in the same decision that: "We are inclined to construe our constitution to mean the right to a speedy trial arises with the initial step of the criminal prosecution, i.e., the complaint and warrant." Id., 20 Wis. 2d at 508. Thus, the two-step process is the criteria required to be fulfilled for a person to be formally accused for the right to a speedy trial to attach. To somehow reasonably imply that any process short of the issuance of both the complaint with a warrant or a summons satisfies the purpose of the statute has no basis in the case law of this state. Contrary to the State's expectations, the argument from comparison supports, rather than defeats, Jennings's position.

¶ 18. The State asserts that Jennings was formally accused and the prosecution commenced with the timely filing of the complaint and the issuance of an order to produce. It argues that an order to produce is sufficiently like a warrant or a summons to commence a prosecution where, as here, Jennings was in the custody of a state correctional facility when the order to produce was issued. Thus, it contends that an order to produce is the equivalent of an arrest warrant which meets the requirement of the statute. Again, we are not convinced.

¶ 19. We note, as is evident from a review of the record, that Jennings was incarcerated at the Columbia Correctional facility for a completely different crime at the time the present sexual assault charge was filed. Thus, his contemporaneous incarceration was not due to any pending sexual assault charge. Milwaukee County detectives questioned Jennings on December 3, 1998. They did not serve him with a summons or an arrest warrant. After questioning him, they left, leaving him at Columbia. The complaint was filed by the State the next day, December 4, 1998, and the order to produce was obtained on the same date.

¶ 20. Wisconsin Stat. §939.74(1) is quite precise, as to which documents must be issued, found or filed to commence a felony prosecution; i.e., a warrant, summons, indictment or information. No mention is made of a complaint or an order to produce. An order to produce can be used in so many contexts for so many purposes, both civil and criminal, it does not reasonably follow that it is the equivalent to an arrest warrant or, for that matter, a summons. The State knew where Jennings was housed. Under Wis. Stat. § 968.04(2)(a), the State could have quite readily complied with the calls of § 939.74 by issuing a summons (or a warrant), with the order to produce. No reason appears in the record why this simple scheme was not followed. Nor can we divine any statutory or case law authority to support the State's theory of equivalency. There still, however, remains the question of how to reasonably harmonize the statutes.

¶ 21. In the hierarchy of statutory construction, is the well-recognized rubric that when a general statute conflicts with a specific statute, the specific statute prevails. State ex rel. S.M.O. v. Resheske, 110 Wis. 2d 447, 453, 329 N.W.2d 275 (Ct. App. 1982). This is so even when the specific statute was enacted before the later-enacted general statute unless the context of the later- enacted statute indicates otherwise. The basis for this formulation is that the legislature, knowing of the specific statute, and not expressly amending it or repealing it, intended it to continue as a qualification to the general statute. State v. Dairyland Power Coop., 52 Wis. 2d 45, 49-53, 187 N.W.2d 878 (1971).

¶ 22. As set forth earlier in this opinion, Wis. Stat. § 939.74 is a very specific statute enacted twenty years before either Wis. Stat. §§ 967.05(1) or 968.02(2). Section 967.05(1), a part of a Chapter described as "CRIMINAL PROCEDURE □ GENERAL PROVISIONS," in permissive terms, sets forth how a criminal prosecution "may" be commenced. Section 968.02(2) only facially conflicts with § 939.74 in that by its very terms, unless subsequent to the issuance of a complaint, a summons or a warrant is issued, the complaint shall be dismissed. Thus, § 968.02(2) expressly contemplates the fulfillment of the two-step process in order for a criminal prosecution to commence. In contrast, § 939.74(1) specifically deals with the time limitation in which a prosecution for a felony or misdemeanor must be commenced. It also specifically defines how an action is to be commenced within the meaning of the statute of limitations. Doubtless, it is more specific than either § 967.05(1) or § 968.02(2). There is no language contained in either statute that either amends or repeals § 939.74(1). Therefore, harmony among these statutes is created by concluding that the very precise requirements for the proper commencement of a criminal prosecution for a felony set forth in § 939.74(1) requires it to trump § 967.05(1) and § 968.02(2) in determining what events are necessary to commence the running of the six-year statute of limitations.

III. CONCLUSION

¶ 23. Thus, although we conclude that Wis. Stat. § 939.74(1) is ambiguous when read together with Wis. Stat. §§ 967.05(1) and 968.02(2), which refer to the complaint as a document sufficient to commence a prosecution, we resolve the ambiguity in favor of Jennings. Although we regret that such procedural violations result in freedom of a potentially guilty person, we are bound by the language of the statutes enacted by our legislature, and the rules governing their construction.

¶ 24. Here, Wis. Stat. § 939.74(1) is the more specific statute, and must control over the more general and permissive language of Wis. Stat. §§ 967.05(1) and 968.02(2). Section 939.74(1) does not permit the action to commence by the filing of a complaint and an order to produce. Rather, it specifically requires that a warrant or a summons be issued, an indictment be found, or an information be filed. The district attorney failed to comply with the dictates of this statute within six years of the crime.

¶ 25. Moreover, we are not persuaded by the State's arguments that the order to produce is the functional equivalent of a warrant. Neither the language of the statute, its construction nor the case law, support the State's contention. Further, the State's comparison between the statute of limitations and the speedy trial right cannot be. sustained. The two-step process of complaint, followed by a warrant or a summons, has long been followed in this State under both principles. If a complaint, followed by an order to produce, is deemed sufficient to commence an action for purposes of the statute of limitations, that change needs to be made by the legislature, not by this court.

¶ 26. Accordingly, we must reverse the judgment and order and dismiss this case. The action was not timely commenced and, therefore, the trial court did not attain personal jurisdiction over Jennings.

By the Court. — Judgment and order reversed.

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

        Cf. Wis. Stat. § 939.74(3) (providing the tolling provisions).

       Wisconsin Stat. § 968.04(2) (a) provides:
      Summons, (a) In any case the district attorney, after the issuance of a complaint, may issue a summons in lieu of requesting the issuance of a warrant. The complaint shall then be filed with the clerk.