author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul Delao Quiroz, Defendant-Appellant.

    Court of Appeals

      No. 01-1549-CR.

      Submitted on briefs January 10, 2002.—

      Decided January 30, 2002.

    2002 WI App 52
    (Also reported in 641 N.W.2d 715.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Chad G. Kerkman oí Kerkman Law Offices, S.C., of Twin Lakes.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Edwin J. Hughes, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 5-21-02.

   SNYDER, J.

¶ 1. Paul Delao Quiroz appeals from a judgment of conviction and an order denying his postconviction motion to withdraw his guilty pleas. Quiroz argues that he should have been allowed, to withdraw his guilty pleas for two reasons: (1) because he was incorrectly informed that his maximum exposure was fourteen years' imprisonment; and (2) he was unaware of the presumptive minimum penalty at the time of his pleas. We disagree with both of these assertions and affirm the judgment and order of the trial court.

FACTS

¶ 2. In a criminal complaint filed on November 4, 1999, Quiroz was charged with the following: attempted first-degree intentional homicide, as a party to a crime, while armed, as a gang-related crime (Count 1); attempted first-degree intentional homicide, as a party to a crime, while armed, as a gang-related crime (Count 2); discharging a firearm from a vehicle at a person, as a party to a crime, as a gang-related crime (Count 3); and possession of marijuana, as a party to a crime (Count 4). An information filed on December 2, 1999, alleged the same crimes.

¶ 3. Quiroz eventually accepted a plea bargain. Quiroz agreed to plead guilty to Count 1 as an amended and reduced charge of first-degree reckless endangerment of safety, as a party to a crime, while armed, as a gang-related crime, and to Count 3 as charged in the information; Counts 2 and 4 would then be dismissed and read in for sentencing purposes. In exchange for the guilty pleas, the prosecutor agreed to recommend the maximum penalty on the reckless endangerment charge and consecutive probation for the discharging a firearm charge.

¶ 4. At the plea hearing, the prosecutor informed the trial court, and the trial court confirmed, that the maximum penalty for the reckless endangerment charge was fourteen years' incarceration. There was no mention of any presumptive minimum penalty at the plea hearing.

¶ 5. Quiroz was sentenced on February 14, 2000. At sentencing, the prosecutor again recommended the maximum of fourteen years' imprisonment on the reckless endangerment charge and consecutive probation on the discharge of a firearm charge but also noted that the reckless endangerment charge carried with it a presumptive minimum penalty of three years. Quiroz's attorney asked for imprisonment not to exceed three years and Quiroz himself stated, "I ask no more than five years at least, three years if I could...." The trial court sentenced Quiroz to twelve years' imprisonment on the reckless endangerment charge and a consecutive term of ten years' probation on the discharging a firearm charge.

¶ 6. On March 8, 2001, Quiroz filed a motion to withdraw his guilty pleas, alleging that he was misinformed of the maximum penalty and unaware of the presumptive minimum penalty for Count 1 at the time of his pleas. After a hearing was held on May 10, 2001, to address these issues, the trial court denied Quiroz's motion. Quiroz appeals.

DISCUSSION

¶ 7. Decisions on plea withdrawal requests are discretionary and will not be overturned unless the trial court erroneously exercised its discretion. State v. Spears, 147 Wis. 2d 429, 434, 433 N.W.2d 595 (Ct. App. 1988). A motion filed after sentencing should only be granted if it is necessary to correct a manifest injustice. State v. Duychak, 133 Wis. 2d 307, 312, 395 N.W.2d 795 (Ct. App. 1986). Quiroz has the burden of proving by clear and convincing evidence that a manifest injustice exists. State v. Schill, 93 Wis. 2d 361, 383, 286 N.W.2d 836 (1980).

¶ 8. Quiroz first argues that he should have been allowed to withdraw his guilty plea to the reckless endangerment charge because he was incorrectly informed that his maximum exposure was fourteen years' imprisonment; Quiroz claims that fourteen years is inaccurate and that his correct maximum exposure was thirteen years. We disagree with Quiroz's calculation of the maximum penalty.

¶ 9. Resolution of this issue requires the interpretation of the penalty enhancer statutes, a question of law that we review de novo. State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991). First-degree recklessly endangering safety is a Class D felony. Wis. Stat. § 941.30(1) (1997-98). In 1999, the maximum penalty for a Class D felony was five years' prison. Wis. Stat. § 939.50(3)(d).

¶ 10. This five-year maximum penalty could be increased if the person committed the crime while using a dangerous weapon; if the maximum term of imprisonment is more than two years but not more than five years, the maximum term of imprisonment for the felony could be increased by no more than four years. Wis. Stat. § 939.63(l)(a)3. In addition, the penalty for the underlying crime can be increased if the crime is gang-related; if the maximum term of imprisonment is more than two years but not more than five years, the maximum term of imprisonment can be increased by not more than four years for a gang-related crime. Wis. Stat. § 939.625(1)(b)3. However, if the maximum term of imprisonment is more than five years, the maximum term of imprisonment can be increased by up to five years for a gang-related crime. Sec. 939.625(l)(b)2.

¶ 11. Quiroz arrives at his thirteen-year maximum penalty as follows: the maximum for his Class D felony crime was five years. With the dangerous weapon penalty enhancer, this five-year penalty could be increased by no more than four years. Wis. Stat. § 939.63(l)(a)3. In addition, with the gang-related penalty enhancer, the original five-year penalty could be increased by up to four years, Wis. Stat. § 939.625(l)(b)3, for a total of thirteen years.

¶ 12. We disagree with Quiroz's calculations and find that the trial court's calculation of the fourteen-year maximum penalty was correct. This issue is governed by Pernell, 165 Wis. 2d at 651. In Pernell, the defendant was guilty of misdemeanors to which were applicable two separate penalty enhancers, one for committing the crimes while armed, the other for habitual criminality. Id. at 654. The maximum sentence of nine months for these misdemeanors was increased by six months because of the dangerous weapon enhancer. Id. The habitual, criminality penalty enhancer increased a maximum term of one year or less by three years and increased a maximum term of more than one year but not more than ten years by six years. See id. at 654-56.

¶ 13. The Pernell trial court concluded that once the original nine-month sentence was increased by six months due to the dangerous weapon enhancer, the new maximum sentence was fifteen months and thus the six-year habitual criminality penalty enhancer was applicable. Id. at 654-55. We affirmed the trial court's conclusions. Id. at 660. Pernell therefore establishes that when two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer.

¶ 14. Here, the maximum for Quiroz's Class D felony crime was five years. With the dangerous weapon penalty enhancer, this five-year penalty could be increased by no more than four years, Wis. Stat. § 939.63(l)(a)3, for a new maximum penalty of nine years. We now add the gang-related penalty enhancer to the nine-year maximum penalty. Because the maximum term of imprisonment is more than five years, it can be increased by up to five years, Wis. Stat. § 939.625(l)(b)2, for a maximum penalty of fourteen years.

¶ 15. Quiroz attempts to distinguish Pernell by claiming a distinction between penalty enhancers "that concern themselves with aggravating factors surrounding the underlying crime itself," such as a dangerous weapon or gang-related enhancer and penalty enhancers that are not "related to the factual circumstances affecting the length" of the sentence, such as a habitual criminality enhancer. This is a distinction without a difference. All of these penalty enhancers link the severity of their sanctions to the maximum term of imprisonment for the underlying offense.

¶ 16. Furthermore, even if the maximum penalty had been overcalculated, which we have determined it was not, Quiroz fails to establish that a plea withdrawal would correct a manifest injustice. Quiroz was sentenced to twelve years in prison, less than the fourteen-year maximum correctly calculated by the court and less than the thirteen-year maximum incorrectly calculated by Quiroz. No matter which way the maximum sentence is calculated, Quiroz received less than the maximum. Furthermore, Quiroz willingly pled guilty to a crime with a fourteen-year maximum penalty; he cannot credibly argue that he would not have so pled had he been informed that the maximum was thirteen years.

¶ 17. The trial court correctly calculated the maximum penalty as fourteen years and Quiroz has not established that plea withdrawal is necessary to correct a manifest injustice.

¶ 18. Quiroz also argues that he should have been allowed to withdraw his plea to the reckless endangerment charge because at the time of the plea he was unaware of the three-year presumptive minimum penalty.

¶ 19. At the time of entry of a plea, a defendant must have a full understanding of the possible penalty, including both the maximum available penalty apd any presumptive minimum term of imprisonment. State v. Mohr, 201 Wis. 2d 693, 700-01, 549 N.W.2d 497 (Ct. App. 1996). We employ a two-step process when evaluating a trial court's denial of a plea withdrawal motion: first, we read the plea hearing transcript to measure if the defendant has made a prima facie showing that the trial court did not meet the procedures mandated by Wis. Stat. § 971.08. Mohr, 201 Wis. 2d at 697. If the defendant meets this burden, then we test whether the State has nevertheless demonstrated by clear and convincing evidence that the defendant entered the plea knowingly, voluntarily and intelligently. Id. While the defendant's understanding must be measured at the time of the plea, we may look to the record as a whole to determine if a defendant understood the consequences of his or her plea at that time. State v. Van Camp, 213 Wis. 2d 131, 149, 569 N.W.2d 577 (1997).

¶ 20. No mention of any presumptive minimum penalty was made at the plea hearing and thus Quiroz has met his initial burden in this respect; the trial court did not meet the procedures mandated by Wis. Stat. § 971.08. The State concedes as much. The next step is to determine whether the State has nevertheless demonstrated by clear and convincing evidence that Quiroz entered his plea knowingly, voluntarily and intelligently.

¶ 21. Here, the trial court found that Quiroz had actual knowledge of the presumptive minimum penalty based upon statements made by Quiroz himself and his attorney at the time of sentencing and based upon the presumptive minimum allegations contained in the original pleadings and as conveyed to him at the arraignment. We agree with the trial court's conclusion.

¶ 22. Both the complaint and the information state that the dangerous weapon penalty enhancer carried a presumptive three-year minimum sentence for the first two counts. While Quiroz pled guilty to an amended charge of first-degree reckless endangerment, the dangerous weapon enhancer remained applicable, so logically the three-year presumptive minimum remained applicable as well. Quiroz testified that he was familiar with both the complaint and the information and he was aware that the dangerous weapon enhancer remained in effect at the time of his plea.

¶ 23. In addition, at sentencing the prosecutor remarked that because of the dangerous weapon penalty enhancer, there was a three-year presumptive minimum penalty. Quiroz himself responded that the prosecutor's description of the plea and penalty was correct:

THE COURT: [I]s the statement of the two crimes for which sentencing is to occur as the district attorney noted with the penalties including the enhancers, is that correct?
MR. QUIROZ: Yes.
THE COURT: From your point of view, [defense counsel]?
[DEFENSE COUNSEL]: Yes. (Emphasis added.)

¶ 24. Furthermore, Quiroz's own statements and statements by his defense counsel imply that he was aware of the three-year presumptive minimum penalty. At sentencing, defense counsel asked for "placement in the Wisconsin State Prison for a term not to exceed three years." Quiroz himself said, "I ask no more than five years at least, three years if I could . . . ."

¶ 25. Both the complaint and the information contained the dangerous weapon enhancer and set forth the presumptive three-year minimum penalty. Quiroz admitted that he was familiar with both the complaint and the information and was aware that the dangerous weapon enhancer applied when he pled guilty. At sentencing, the prosecutor noted that there was a three-year presumptive minimum penalty and Quiroz agreed with the prosecutor's recitation of the plea and penalty. Both Quiroz and his attorney requested three years' imprisonment. We conclude that the record as a whole demonstrates that Quiroz was aware of the three-year presumptive minimum penalty and thus Quiroz entered his plea knowingly, voluntarily and intelligently.

¶ 26. The trial court correctly calculated the maximum penalty in this case to be fourteen years. Even if we were to accept Quiroz's argument that fourteen years is incorrect, he has not demonstrated that plea withdrawal is necessary to avoid a manifest injustice. In addition, the record demonstrates that Quiroz had actual knowledge of the presumptive three-year minimum penalty and therefore his plea was knowingly, voluntarily and intelligently entered. We therefore affirm the order denying his motion for plea withdrawal and affirm the judgment of conviction.

By the Court. — Judgment and order affirmed.

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

       We must note that in employing the State v. Pernell, 165 Wis. 2d 651, 478 N.W.2d 297 (Ct. App. 1991), computation method in this case, the dangerous weapon enhancer and the gang affiliation enhancer produce the same sentence regardless of the sequence in which they are applied. However, in another case, the sequence in which the enhancers are applied might result in different sentences. We caution that this case may not address all factual situations.

       Wisconsin Stat. § 971.08 addresses pleas of guilty and withdrawal thereof and states:
      (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
      (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.

        (c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
      (d) Inquire of the district attorney whether he or she has complied with s. 971.095(2).
      (2) If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
      (3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to he withdrawn shall not be used against the defendant in a subsequent action.

       We must note that the plea hearing in this case occurred without an amended information in existence. In fact, no amended information was ever filed in this case. Had an amended information been properly filed, we might well not have the confusion claimed by Quiroz in this case.


source: Caselaw Access Project

author: NETTESHEIM, PJ.

license: Public Domain

text:
    In the Interest of Eugene W., a person Under the Age of 17: State of Wisconsin, Petitioner-Respondent, v. Eugene W., Respondent-Appellant.
    Court of Appeals

      No. 01-2274.

      Submitted on briefs November 30, 2001.

    Decided January 30, 2002.

    2002 WI App 54
    (Also reported in 641 N.W.2d 467.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Michael Yovovich, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Robert S. Flancher, district attorney, Racine county, and Jennifer Tanck-Adams, assistant district attorney, Racine county.
    Before Nettesheim, EJ., Brown and Anderson, JJ.

       This court, on its own motion, asked the chief judge of the court of appeals to order that a three-judge panel decide this case. The chief judge granted our request by an order dated December 6, 2001. See Wis. Stat. Rule 809.41(3) (1999-2000). All statutory references are to the 1999-2000 unless otherwise indicated.

   NETTESHEIM, PJ.

¶ 1. Wisconsin Stat. § 938.355(6) (a) provides that if a juvenile who has been found to be in need of protection or services (JIPS) violates the conditions of the juvenile court's disposi-tional order, the court may impose sanctions provided the court explained the conditions to the juvenile at the dispositional hearing and informed the juvenile of the possible sanctions.

¶ 2. Eugene W appeals from a juvenile court order imposing sanctions following his violation of the conditions recited in a JIPS dispositional order. Eugene is a juvenile in need of protective services based on the juvenile court's prior finding that he was incompetent to participate in the proceedings in an underlying delinquency petition. Eugene's ability to comprehend the conditions and sanctions was in question at the time of the JIPS dispositional order. Eugene argues that the order imposing sanctions violated his right to due process because the State did not establish, and the juvenile court did not determine, that he was able to comprehend the conditions of the JIPS order and the potential sanctions for violating those conditions.

¶ 3. We conclude that Wis. Stat. § 938.355(6)(a) requires that a juvenile court assure that the juvenile has.the ability to comprehend the conditions of the dispositional order and potential sanctions whether informed of them at the dispositional hearing or at a later time. Since we decide this case on this statutory ground, we do not reach Eugene's constitutional challenge. We further conclude that once the juvenile raises this issue, the State has the burden to establish by clear and convincing evidence that the juvenile has such ability. Because the State did not make such a showing and because the juvenile court did not make a finding as to Eugene's ability to comprehend the conditions and possible sanctions at the time of the dispositional order, we reverse the sanctions order.

FACTS

¶ 4. The facts are undisputed. In an underlying delinquency proceeding, the juvenile court found Eugene incompetent to proceed. Based on that finding, the court suspended the delinquency proceedings and directed the State to file a JIPS petition pursuant to Wis. Stat. § 938.13C14).

¶ 5. On February 28, 2001, the State filed the JIPS petition. Eugene did not contest the petition and on March 14, 2001, the juvenile court conducted a dispositional hearing, finding Eugene to be a juvenile in need of protection or services based on the previous determination that he was incompetent to proceed in the delinquency proceeding. The court ordered that Eugene be placed at his guardian's home with supervision from the Racine County Human Services Department. The court went on to inform Eugene of the conditions of supervision including counseling and school attendance following which the court stated, "And if Eugene does not follow these orders, then he can be placed in nonsecure detention and he can come back in for sanctions."

¶ 6. The prosecutor then requested that the juvenile court read the sanctions warnings prescribed by Wis. Stat., § 938.355(6)(a), adding, "We can deal with at a later time whether [Eugene] was competent to understand them or not." Eugene's counsel objected based on the court's prior finding of incompetence. Counsel stated, "It has always been my position and continues to, [that it is] not appropriate to read sanction warnings to an incompetent." The court acknowledged Eugene's position, but proceeded nonetheless to read the sanctions warnings as prescribed by the statute. This warning included all of the possible sanctions under § 938.355(6)(d) with the exception of secure detention.

¶ 7. On April 2, 2001, the State filed a motion for sanctions alleging that Eugene had violated the terms of the dispositional order. The juvenile court held a hearing on the motion on April 17, 2001. At the outset of the hearing, Eugene's counsel moved to dismiss the proceedings on the grounds that the court had previously found Eugene to be incompetent. Eugene's counsel argued, "We do not believe that you can sanction an incompetent because ... the State cannot show that he understood the warnings that were given to him at the time of the dispositional hearing . . . ."

¶ 8. The juvenile court denied Eugene's motion. Although the court saw some merit in Eugene's argument, the court concluded that Wis. Stat. § 938.355(6) clearly required the court to read the conditions and sanctions warnings to a juvenile subject to a JIPS dispositional order and further authorized the imposition of sanctions even in the face of a prior finding of incompetence to proceed. According to the court, the statutory procedure "authorize [d] certain sanctions even when there is a finding of [incompetence]." The court then proceeded to impose a sanction. In addition, and again over Eugene's objection, the court issued a second sanctions warning to Eugene, including the possibility of secure detention for a second violation of the conditions set out in the dispositional order.

¶ 9. Eugene then admitted to the facts supporting the violation of the conditions and stipulated to the sanctions sought by the State. The court's order for sanctions was entered on April 17, 2001. Eugene appeals.

DISCUSSION

Waiver

¶ 10. As a threshold issue, we address the State's contention that Eugene waived his right to object to the sanctions by admitting to the violation and stipulating to a sanction. We reject the State's argument. First, the State recognized the potential problem Eugene's incompetence posed from the very moment the matter of the warnings surfaced. When the prosecutor asked the juvenile court to read the sanctions warnings at the dispositional hearing, the prosecutor stated, "We can deal with at a later time whether [Eugene] was competent to understand them or not." So the State recognized the potential importance of the issue.

¶ 11. Second, Eugene's counsel timely and repeatedly raised the issue of Eugene's competence and ability to understand the dispositional order and potential sanctions. Moreover, counsel objected each time the juvenile court proposed to issue the warnings. In light of that history, we do not read Eugene's admission and stipulation as all encompassing as the State's appellate argument contends. The admission and stipulation came only after the juvenile court had twice rejected Eugene's argument on the issue — first at the JIPS dispositional hearing and second at the sanctions hearing. Furthermore, Eugene's admission and stipulation never indicated that he was abandoning the competence issue.

. ¶ 12. Finally, the juvenile court itself recognized the possibility of an appeal on the issue and stated at the conclusion of the sanctions hearing that the issue had been preserved.

¶ 13. To avoid waiver, a party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling. See State v. Salter, 118 Wis. 2d 67, 78-79, 346 N.W.2d 318 (Ct. App. 1984). Eugene clearly raised the issue and obtained a juvenile court ruling on the matter. As such, the issue was preserved for appeal. We therefore turn to the merits of Eugene's argument.

The Requirements ofWis. Stat. § 938.355(6) (a)

¶ 14. Wisconsin Stat. § 938.355(6)(a) permits the juvenile court to impose sanctions upon a juvenile in need of protective services for failure to comply with the conditions of the dispositional order if the juvenile has previously been advised of the conditions and warned of the possible sanctions for violating the conditions. Eugene argues that when a question arises regarding the juvenile's ability to comprehend the conditions or the sanctions, the juvenile court must assure that the juvenile has such comprehension. In the absence of such a showing, Eugene argues a juvenile's due process rights are violated and the statute is rendered unconstitutional as applied to those juveniles who lack such an understanding.

¶ 15. Whether Wis. Stat. § 938.355(6)(a) requires a finding that a juvenile who has previously been found incompetent is capable of understanding the conditions of his or her disposition and the possible sanctions is a question of statutory interpretation which we review de novo. Green County Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 645, 469 N.W.2d 845, 848 (1991). Our goal in statutory interpretation is to determine and give effect to the legislature's intent. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 538, 579 N.W.2d 678 (1998). To determine the legislature's intent, we begin by looking at the plain language of the statute. Id. If the plain language is unambiguous, we apply the ordinary and accepted meaning of the language to the facts before us. Id.

¶ 16. As set forth above, Wis. Stat. § 938.355(6)(a) provides that a court may impose sanctions on a juvenile who violates the conditions of a dispositional order:

if, at the dispositional hearing . . . the court explained the conditions to the juvenile and informed the juvenile of those possible sanctions or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.

¶ 17. The State argues that Wis. Stat. § 938.355(6)(a) does not expressly require the juvenile court to determine that the juvenile understands the dispositional order and potential sanctions. Rather, the State contends that the statute addresses two scenarios — first, the court informing the juvenile of the conditions and sanctions while in the courtroom or, second, the juvenile being informed of the conditions and sanctions later and then acknowledging his or her understanding of them in writing. The State argues that the acknowledgement requirement applies only when the juvenile is advised of the conditions and possible sanctions after the dispositional hearing.

¶ 18. While the State's literal reading of the statute is correct, we construe Wis. Stat. § 938.355(6)(a) to implicitly require that the juvenile understand or have the ability to understand the conditions of the disposi-tional order and warnings of sanctions. To read the statute otherwise would be unreasonable and absurd. City of Milwaukee v. Kilgore, 185 Wis. 2d 499, 516, 517 N.W.2d 689 (Ct. App. 1994) (when construing statutes we are to give them their commonsense meaning to avoid unreasonable and absurd results), aff'd, 193 Wis. 2d 168, 523 N.W.2d 690 (1995). It would make no sense to require the juvenile to understand the conditions and sanctions warnings in a nonjudicial setting, but to not require such understanding in the judicial setting. In requiring the court to inform the juvenile of the conditions of the dispositional order and of the possible sanctions, it logically follows that the legislature either intended or assumed that the juvenile would understand such communications. If not, there would be no point to such a requirement.

¶ 19. Therefore, the only reasonable interpretation of Wis. Stat. § 938.355(6)(a) is that the juvenile, whether informed of the conditions and warnings during or after the hearing, must have the ability to comprehend them. To interpret the statute otherwise would raise the serious due process constitutional question posed by Eugene. See State v. Schultz, 218 Wis. 2d 798, 801, 582 N.W.2d 113 (Ct. App. 1998) ("We must not construe a statute to violate the constitution if another reasonable construction is available."). Therefore, we need not take our discussion to that constitutional level. Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984) ("We need not reach these various constitutional issues because we conclude the case can be resolved on statutory construction grounds alone.").

¶ 20. We caution that our holding does not create a per se rule that a juvenile who has been declared incompetent to participate in the underlying proceedings is necessarily incompetent to understand the conditions and sanctions warnings issued in a JIPS case. There are different levels of incompetence and it may very well be that a juvenile who is not competent to participate in the underlying proceeding may nonetheless be capable of understanding the conditions of the dispositional order and the possible sanctions. All we hold is that once the juvenile's ability to understand the conditions and sanctions is put at issue, the court must ascertain whether the juvenile is indeed capable of understanding the conditions and potential sanctions.

Burden of Proof

¶ 21. Even if we reject its interpretation of Wis. Stat. § 938.355(6)(a), the State offers an alternative argument as to why Eugene's appeal must fail. The State argues that Eugene failed to provide evidence of his lack of understanding of the conditions in the dispositional order and his unawareness that his noncompliance with the conditions would result in sanctions. This argument requires us to address the burden of proof in such a situation. The parties do not cite to any law, nor have we found any, which addresses the burden of proof when a question arises as to a juvenile's ability to understand the conditions and possible sanctions pursuant to § 938.355(6)(a). However, other areas of incompetence law allocate the burden of proving competency to the State.

¶ 22. In the criminal law, "[n]o person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures." Wis. Stat. § 971.13(1). Fundamental fairness precludes the prosecution of a mentally incompetent individual because that person's constitutional and procedural rights are at issue. State v. Garfoot, 207 Wis. 2d 214, 221, 558 N.W.2d 626 (1997). If the question of the defendant's competency is contested, the court shall hold an eviden-tiary hearing. Wis. Stat. § 971.14(4)(b). If the defendant claims to be incompetent, the State bears the burden of proving by the greater weight of the credible evidence that the defendant is competent. Id. Likewise, if the defendant claims to be competent, the State must prove by clear and convincing evidence that the defendant is incompetent. Id.

¶ 23. A juvenile's incompetence to proceed in a juvenile proceeding is the equivalent of an adult defendant's incompetence to proceed in a criminal proceeding. When the criminal law has a counterpart in juvenile law, we sometimes look to the criminal law for assistance in interpreting the juvenile counterpart. See State v. Jermaine T.J., 181 Wis. 2d 82, 90-91, 510 N.W.2d 735 (Ct. App. 1993), and State v. Tawanna H., 223 Wis. 2d 572, 576-78, 590 N.W.2d 276 (Ct. App. 1998). Since the criminal code obligates the State to establish a defendant's competence to proceed when that issue is raised, we see no reason why the same burden should not be assigned to the State in a JIPS proceeding where the juvenile asserts an inability to understand the conditions and sanctions warnings required by Wis. Stat. § 938.355(6)(a). This is especially so in a case such as this where the juvenile has already been adjudged incompetent to proceed in an underlying proceeding.

¶ 24. Here, Eugene's counsel claimed that Eugene was unable to comprehend the conditions of the dispo-sitional order and the potential sanctions. He argued that the State had not established that Eugene understood the warnings given by the court at the disposi-tional hearing. Once Eugene raised this competence question, the burden shifted to the State to prove that Eugene was, in fact, capable of doing so. The State failed to meet this burden. Therefore, we must reverse the sanctions order.

CONCLUSION

¶ 25. We conclude that Wis. Stat. § 938.355(6)(a) requires that the juvenile have the ability to understand the conditions of the dispositional order and the potential sanctions whether he or she is informed of them at the dispositional hearing or at a later time. We further conclude that once the issue of the juvenile's ability to understand the conditions and sanctions is raised, the burden shifts to the State to establish that the juvenile is capable of understanding the court's warnings. Because the State failed to make such a showing, we reverse the sanctions order.

By the Court. — Order reversed.

       Alternatively, the statute allows the court to impose sanctions if, before the violation, the juvenile acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands them.

       Pursuant to Wis. Stat. § 938.30(5)(d), if the juvenile court determines that a juvenile is incompetent to proceed in a delinquency proceeding, the court shall suspend the proceedings and direct that a commitment petition be filed pursuant to Wis. Stat. § 51.20(1) or that a JIPS petition be filed pursuant to Wis. Stat. § 938.13(14). Here, the court directed that a JIPS petition be filed.

       Pursuant to Wis. Stat. § 938.30(5)(a):
      If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile's competency to proceed, or if the juvenile enters a plea of not responsible by reason of mental disease or defect, the court shall order an examination under s. 938.295 ....
      Although not contained in the record, it is evident from the hearing transcripts that the trial court ordered and obtained an expert examination of Eugene under Wis. Stat. § 938.295.

       The State also argues that Eugene did not require it to demonstrate Eugene's understanding of the sanctions. The State's assertion is not borne out by the record. In fact, Eugene raised this issue at the sanctions hearing when the State asserted its right to seek sanctions regardless of Eugene's ability to understand the conditions and sanctions warnings. In response, Eugene's counsel stated, "We do not believe that you can sanction an incompetent because. . . the State cannot show that he understood the warnings that were given to him at the time of the dispositional hearing... ."


author: DEININGER, J. VERGERONT, EJ.

text:
    Robert Hoskins, Vivian Hoskins, Estate of Roylan D. Sims, Marsha Sims, Paul J. Scoptur, as Guardian ad Litem of Roylan Sims, II and Marshall Sims, Estate of James Hooper and Delores Hooper, Plaintiffs-Appellants, v. Dodge County, Wisconsin Municipal Mutual Insurance Company, City of Beaver Dam and Columbia Casualty Insurance Company, FDB Selective Insurance Company of South Carolina, Defendants-Respondents.
    Court of Appeals

      No. 01-0834.

      Submitted on briefs September 12, 2001.

    Decided January 31, 2002.

    2002 WI App 40
    (Also reported in 642 N.W.2d 213.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Paul Gagliardi, Theodore B. Kmiec, III and Joseph M. Cardamone, III of Gagliardi, Nelson & O'Brien, Salem.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Robert E. Storck of Storck, Schnabl & Madden, Madison and Bruce A. Schultz and Laura N. Whipple of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.

       Petition to review filed.

   DEININGER, J.

¶ 1. Robert Hoskins and several others appeal a judgment dismissing their action against Dodge County and the City of Beaver Dam. Hoskins claims the trial court erred in concluding that the County and City were immune from suit for the actions complained of, and accordingly, granting defense motions for summary judgment. We conclude on de novo review that the defendants are entitled to summary judgment. Accordingly, we affirm.

BACKGROUND

¶ 2. Hoskins claims on appeal, among other things, that there are genuine issues of material fact that preclude summary judgment. We note, however, that he argued in the trial court that he should be awarded summary judgment on the issue of causal negligence, thereby implying no material facts were in dispute. The following background facts are taken from the parties' submissions on summary judgment. In the analysis which follows, we will discuss in more detail Hoskins's appellate claim that a material factual dispute precludes summary judgment in favor of the City and the County.

¶ 3. The evening of May 4,1999, was rainy, windy and stormy in the Beaver Dam area. Shortly before midnight, Debra and Michael Krueger stepped out of their home adjacent to Beaver Dam Lake to check the weather. When they did so, they observed a boat containing three people, apparently having some motor difficulties in the vicinity of a neighbor's pier. The Kruegers called out to the "guys,"' asking if they needed any help. The Kruegers also turned on their waterfront lights and ultimately telephoned their neighbor, Vernon Block, to tell them what they had seen.

¶ 4. Debra Krueger saw one of the occupants of the boat wave "as though they were 'okay.'" The occupants of the boat had started their motor, but according to the Kruegers, "it seemed to be running poorly." The motor apparently stopped once and then restarted. In relaying the information to Block, the Kruegers indicated that they had seen the now departed boat collide with Block's pier.

■ ¶ 5. Block arose and went to inspect his pier, observing that it had incurred some damage, presumably as a result of the collision with the boat that his neighbors had observed. Block called 911 and reported the incident to the City of Beaver Dam Police Department dispatcher. The 911 call transcript indicates that Block told the dispatcher at just past midnight "somebody ran into my pier and smashed my pier." Block also stated that "they must be out on the lake, they looked like the people were having trouble . .. and if there [is], they got a hole in their boat they're not gonna make it, you know."

¶ 6. The City of Beaver Dam dispatcher verified that the address of the incident was outside of the city limits, and accordingly, passed the information to the Dodge County Sheriffs Department. The information relayed was that "a male subject called in and said a boat ran into his pier and took off, unknown if anybody's hurt, unknown if the boat has damage." The Dodge County Sheriffs Department dispatched Deputy Steven Moul to investigate at about half past twelve. Moul traveled to the scene and interviewed Block, Debra Krueger, and Michael Krueger. During a deposition, Moul testified that Mrs. Krueger told him the following:

She stated that they started the boat and started to leave. The motor then stopped she heard. She asked again if they wanted to call the police and she then heard the boat start up again and one of the persons on the boat waved as if everything was okay and left and out of her sight.

Moul further testified that Mrs. Krueger did not seem overly concerned about the safety of the boat occupants, after they had waved and departed.

¶ 7. There is no dispute that an occupant of the boat did in fact wave to Debra Krueger, but Hoskins asserts in his reply brief that Deputy Moul did not learn that fact until sometime later. The sole surviving occupant of the boat, Robert Hoskins, testified in his deposition that the boat experienced difficulties, that it collided with the Block pier, and that "[t]he lady come out and cut her lights on and we were still working trying to get the motor started." Hoskins stated that after the motor had been started, "I was the one that waved at them to let them know that we thought we could make it," and that the wave was an indication that the boat and occupants would "be all right now."

¶ 8. The Kruegers explicitly mentioned the "wave as though they were 'OK'" in their statement to a Department of Natural Resources (DNR) investigator. Later in the same statement, they indicated that "the Dodge Co. Sheriffs' Dept.... responded about 1 hour later; we relayed what we recalled seeing and he took a report." Officer Moul did not record in his police report that Debra Krueger had informed him about a boat occupant waving "OK" to her. The relevant portion of Moul's report reads as follows:

They then heard a male subject yelling for help numerous times. Debra states she asked them if she should call 911. At this point a subject started the boat up and went towards the north from their residence. The boat went a short distance then the motor stopped. Again she was yelling at the subjects in the boat if they should call the police. They then started the boat up again and it headed, again, towards the north. Debra says that the motor sounded like it was not running right. The lights were not on the boat when the boat was moving. Debra says that she watched the boat until it was out of her sight in the dark. Debra believed that the boat struck Vernon Block's pier, which is her neighbor, but then she said she wasn't sure because she did not hear anything of that sort. It should be noted that it was windy during this time.

¶ 9. The investigating deputy observed some damage to the pier, and followed up by checking boat landings and driving around the area to see if any boats had pulled up on shore. While the deputy was investigating at the scene, Dodge County dispatch contacted a DNR warden. The dispatcher told the warden that a boat had struck two piers, and that the boat "kept going but the end of the piers are pretty much tore off. They said the boat's gotta be damaged pretty heavily. And we[']re just worried about the thing sinking or something happening to it." The dispatcher inquired "[s]o do you want us to send Beaver Dam rescue boat out there to look or?" To which the warden responded, "I wouldn't." He further advised the department to treat it like a "regular hit and run," and he suggested that the officer should check the boat landings in the area.

¶ 10. At about three o'clock the following afternoon, a boater discovered Robert Hoskins floating in Beaver Dam Lake. At some point after colliding with Vernon Block's pier, the boat had swamped in the heavy wind and waves on the lake, and the three occupants clung to the swamped vessel for about twelve hours. Two of them ultimately drowned, and Hoskins survived.

¶ 11. Hoskins and the estates and survivors of the other two occupants of the boat commenced this action against Dodge County and the City of Beaver Dam, alleging that the defendants "were negligent with respect to a search and rescue," and "with respect to their duty to investigate upon notice that the plaintiffs were in danger." Both defendants moved for summary judgment, asserting their immunity under Wis. Stat. § 893.80(4) (1999-2000). The court granted the defense motions and subsequently entered judgment in favor of both defendants, dismissing all claims against them. Hoskins appeals.

ANALYSIS

¶ 12. We review an order for summary judgment de novo, owing no deference to the trial court. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W2d 755 (Ct. App. 1985). In reviewing a motion for summary judgment, we are to use the same methodology as the trial court, and "summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995); Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993).

¶ 13. Hoskins's first two arguments challenge the trial court's legal conclusions regarding a municipal entity's immunity from liability for the acts of its employees or agents. The immunity in question is sometimes referred to as "municipal" or "governmental" immunity, "public officer" immunity, or even "discretionary act" immunity, and it has been codified as follows:

No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Wis. Stat. § 893.80(4).

¶ 14. The phrase, "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions," might appear to encompass a relatively narrow range of official actions and decision-making. Case law, however, has defined the phrase as being synonymous with "discretionary" acts. Linville v. City of Janesville, 174 Wis. 2d 571, 584, 497 N.W.2d 465 (Ct. App. 1993), affirmed, 184 Wis. 2d 705, 516 N.W.2d 427 (1994). The supreme court has held that a fairly broad range of acts and decisions by municipal employees, especially those involving law enforcement, are immune from suit. See Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 315, 550 N.W.2d 103 (1996) (a police officer's "decision to initiate or continue a high-speed chase"); Barillari v. City of Milwaukee, 194 Wis. 2d 247, 260, 533 N.W.2d 759 (1995) ("how best to utilize law enforcement resources" and "to carry out [law enforcement] responsibilities"); Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 683, 292 N.W.2d 816 (1980) (a coroner's decision whether to conduct an autopsy).

¶ 15. Judicial decisions have also described several exceptions to a municipality's immunity for the acts of its officers and employees. See Barillari, 194 Wis. 2d at 257-58. Hoskins maintains that the City and County cannot enjoy immunity on the facts of this case because the negligent acts he alleges were either "ministerial" in nature, or they involved a required response to a "known present danger." Some judicial decisions have treated these as two distinct exceptions to municipal or public officer immunity, while others have recognized that a "known present danger" is perhaps best viewed as giving rise to a "ministerial" duty:

[T]he court of appeals .. . described the . . . analysis of the "known danger" circumstances as a test to be applied to find liability even where an act is the result of a public officer's discretion, [however,] an interpretation . . . more consistent with the doctrine of immunity is that a public officer's duty is ministerial where a danger is known and of such quality that the public officer's duty to act becomes " 'absolute, certain and imperative ....'" ... Stated otherwise, where a public officer's duty is not generally prescribed and defined by law in time, mode, and occasion, such that "nothing remains for judgment or discretion," circumstances may give rise to such a certain duty where.. . the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act.

C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988) (citations and footnote omitted).

¶ 16. Hoskins points to no duty allegedly breached by employees of either Dodge County or the City of Beaver Dam on the night of May 4-5, 1999, that could be characterized as "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Id. at 711-12. That is, Hoskins points to no statute or other law that dictates the precise actions to be taken by dispatchers or law enforcement personnel when they receive information such as that provided by Block and the Kruegers just after midnight on May 5, 1999. Thus, Hoskins does not assert the existence of a ministerial duty like the one the supreme court acknowledged in Andrade, where the court determined that the City of Milwaukee "has a ministerial duty to have a written policy for high-speed chases which includes consideration of the severity of the offense," as required under Wis. Stat. § 346.03(6). Andrade, 202 Wis. 2d at 295, 300-01.

¶ 17. Rather, Hoskins's argument is that, given what Block reported to the City's dispatcher, and what Block and the Kruegers told Deputy Moul, both the City and the County became aware of a "known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion." Olson, 143 Wis. 2d at 717. We disagree.

¶ 18. As far as the City and County dispatchers were concerned, we conclude first that Block's 911 call did not communicate the presence of a "known, present danger." Block's report to the City dispatcher was conditional ("they must be out on the lake, they looked like the people were having trouble . . . and ¿/there is, they got a hole in their boat they're not gonna make it, you know" (emphasis added)). Block did not report that the boat was sinking or that its occupants were incapacitated or overboard. At best, the information reported to dispatch, considered in a light most favorable to Hosk-ins, was such as to raise the possibility that a boat on Beaver Dam Lake might be in some type of danger. Thus, the dispatchers were not confronted with a danger that was "known and of such quality that the public officer's duty to act becomes 'absolute, certain and imperative,'" a danger that was "compelling and known to the officer and is of such force that the public officer has no discretion not to act." Id. at 715 (citations and footnote omitted).

¶ 19. Even if we were to conclude that what Block communicated via his 911 call constituted a known, present danger, we would not necessarily hold that the dispatchers had forfeited any claim to immunity for their actions in response. Neither dispatcher failed to act on the information they were provided. See Lodl v. Progressive Northern Ins. Co., 2001 WI App 3, ¶ 17, 240 Wis. 2d 652, 625 N.W.2d 601, review granted, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (May 8, 2001) (No. 00-0221) (noting that immunity when a "known present danger" is alleged may turn on whether law enforcement personnel "actually exercise discretion" or "simply [do] nothing"). The City's dispatcher promptly relayed Block's 911 report to the Dodge County Sheriffs Department, and the County in turn promptly dispatched a deputy to investigate. Additionally, the County contacted DNR personnel for advice on whether to request a waterborne search.

¶ 20. The actions of the dispatchers in this case thus stand in sharp contrast with those of the dispatcher in Domino v. Walworth County, 118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984), where we concluded that the County did not enjoy immunity for the actions or omissions of its- sheriffs department dispatcher. Id. at 491-92. The dispatcher received a report of a downed tree which had fallen across a public road, and she promptly assigned a patrolling deputy to investigate. Id. at 490. Thereafter, however, the dispatcher diverted that officer to the scene of a personal injury accident, and she neither assigned another officer to investigate the downed tree report, nor did she inform township authorities of it. Id. We reversed the trial court's grant of summary judgment to the County, concluding that the dispatcher's "duties, under the facts of this case, appear absolute, certain or imperative' within the meaning of Cords." Id. at 492-93. Our holding in Domino is of no assistance to Hoskins, however, given that the dispatcher in that case essentially "did nothing" in response to the "known present danger" of a tree having fallen across a public road, while the dispatchers in this case did not "do nothing" in response to the reports they received of a possibly dangerous situation.

¶ 21. We also reversed a summary judgment granted in favor of a municipality in Lodi, concluding that a police officer dispatched to direct traffic at an intersection whose traffic fight was inoperative during a storm, may have "failed to act at the intersection." Lodi, 2001 WI App 3 at ¶ 1. The record on summary judgment contained contradictory accounts regarding whether the officer actively attempted to direct traffic at the intersection, or simply stood by and watched. Id. at ¶ 15-17. Here, there is no dispute regarding what City and County dispatchers did in response to Block's 911 call; the dispute is over what more, in Hoskins's view, they should have done. Lodi does not stand for the proposition that municipal immunity is unavailable whenever a claim alleges an inadequate response by emergency personnel to a dangerous situation. Rather, our holding in Lodi was that if the summary judgment record indicates support for a possible finding that emergency personnel "did nothing," summary judgment may not be granted in favor of the municipal actors on an immunity claim under Wxs. Stat. § 893.80(4). Id. at ¶ 17.

¶ 22. We next consider whether the information obtained by Deputy Moul when he went to investigate elevated the equivocal report of a boat possibly being in distress on a stormy lake, to a danger that was "compelling and known to the officer and [was] of such force that" Moul had "no discretion not to act." Olson, 143 Wis. 2d at 715 (citations and footnote omitted). The facts of Linville bear some resemblance, given that municipal emergency personnel were also dispatched in that case and two persons ultimately drowned. We concluded in Linville that emergency responders were not entitled to immunity when they failed to act promptly in commencing rescue efforts on behalf of two persons trapped inside a submerged vehicle. Linville, 174 Wis. 2d at 587-88. A shift commander and several paramedics had arrived at the scene, learned that a van had submerged into the waters of a pond with its two occupants trapped inside, but they "did nothing to rescue [an occupant] for twenty minutes after their arrival." Id. at 586. We concluded that "the paramedic present at a life-threatening danger, such as a drowning, has a ministerial duty promptly to attempt a rescue," and we reversed a summary judgment in the paramedics' favor. Id. at 587-88.

¶ 23. Although the tragic outcome in Linville is regrettably similar to the present case, the underlying facts are readily distinguishable from those now before us. There was no question in Linville that persons were then and there in peril, and that immediate action to effect a rescue was imperative. Here, the information communicated to the investigating deputy at the scene of the report was at least as ambiguous as the initial 911 call, and if anything, it was perhaps less ominous than Block's initial report. Moul learned from the Kruegers that the boat had experienced some motor troubles and collided with Block's pier, but that it then departed on its own power after one of the boat's occupants had waved to Debra Krueger to indicate they were "O.K."

¶ 24. To come squarely within our Linville holding, the witnesses would have had to tell Deputy Moul that a person had gone overboard and was then and there in the water, needing to be rescued. The information conveyed to Moul was many steps removed from that dire circumstance. The mere fact that the boat occupants, after restarting their motor, had chosen to motor off across the lake instead of landing it at the Block or Krueger piers, which were immediately at hand, indicates that notwithstanding Block's or the Kruegers' fears, the boat occupants did not perceive themselves to be in danger. We conclude that the information provided to Deputy Moul did not present a known and compelling danger, of such force that his duty to summon personnel and equipment for an immediate waterborne rescue was absolute, certain and imperative. The circumstances were such that the deputy was entitled to exercise his discretion to forego immediate search and rescue efforts, and to follow up instead by checking the shoreline and boat landings in the area for any signs of the boat in question. See Olson, 143 Wis. 2d at 715.

¶ 25. We next consider Hoskins's claim of a material factual dispute which would preclude summary judgment for the County and the City. We, like the trial court, are prohibited from deciding issues of fact and must only decide whether a factual issue exists. Coopman, 179 Wis. 2d at 555.

¶ 26. Although Hoskins devotes several pages of his opening brief to a heading entitled, "The trial court erred in granting summary judgment as a genuine issue of material fact existed," he points to none. Instead, he argues in this section that "there cannot really be any question that the situation that presented itself was a compelling and known danger," which is a disputed legal conclusion not a disputed fact. He also contends, "in the alternative," that "Deputy Moul did nothing in regard to the known danger," but that is also not a dispute of fact but a characterization of the facts. In short, Hoskins points to nothing in his opening brief which places in dispute the facts on which we rely.

¶ 27. Also under the heading asserting a dispute of material fact, Hoskins cites two affidavits he submitted in opposition to the defense motions for summary judgment, which he claims the defendants failed to rebut or refute. The first affidavit is from a "law enforcement expert," who opined:

[T]he facts and circumstances that existed on May 4 & 5, 1999 at Beaver Dam Lake... required no thought process with regard to the emergency procedure and handling by the law enforcement officers for Dodge County and the City of Beaver Dam. This duty does not require the exercise of discretion and in effect is a ministerial act to simply follow standard procedures expected of a deputy sheriff under like or similar circumstances.

The expert also opined that the County and City officers were negligent in their handling of the situation. Similarly, a "police science communications expert" opined, in very similar language, that a certain response was required "without hesitation or thought" by City and County dispatchers; that their duty "does not require the exercise of discretion and in effect is a ministerial act to simply follow standard procedures expected of a 911 dispatcher"; and that the dispatchers, too, had been negligent.

¶ 28. These expert opinions, however, do not create a factual dispute that precludes summary judgment on the issue of immunity under Wis. Stat. § 893.80(4). First, to the extent that the experts rendered opinions that the various municipal actors had performed below requisite standards of care, those "facts" are not material to a determination of whether the municipal defendants axe nonetheless immune from suit. As the supreme court has explained:

Just because a jury can find that certain conduct was negligent does not transform that conduct into a breach of a ministerial duty .... Indeed, we begin our review of this case on the assumption that negligence exists here; if it were otherwise, [the defendants] would not need to seek the protection of immunity.

Kimps v. Hill, 200 Wis. 2d 1, 11-12, 546 N.W.2d 151 (1996). Furthermore, to the extent that the experts offered opinions on the legal question of whether, on the undisputed facts of this case, the municipal actors had a ministerial duty to respond in a certain way, those opinions were not "evidentiary facts." See Wis. Stat. § 802.08(3); Physicians Plus Ins. v. Midwest Mut. Ins., 2001 WI App 148, ¶ 54 n.19, 246 Wis. 2d 933, 632 N.W.2d 59 (noting that affidavits made on "information and belief," or those which allege "ultimate facts" or conclusions of law, must be disregarded).

¶ 29. Hoskins first asserts the existence of what might truly be a factual dispute in his reply brief. He contends that "there is nothing contemporaneous with the investigation to indicate that Deputy Moul or anyone else representing the [City and County] was aware" on the night in question that Hoskins had waved "O.K." to the Kruegers. First, we note that we generally do not address an argument first made in a reply brief. Swartwout v. Bilsie, 100 Wis. 2d 342, 346 n.2, 302 N.W.2d 508 (Ct. App. 1981). Moreover, we reject Hoskins's assertion that the record discloses a dispute over whether the Kruegers informed Deputy Moul of the "O.K. wave" when he interviewed them after responding to the scene.

¶ 30. We agree with Hoskins that the account by the Kruegers regarding the "O.K. wave" is significant only if they informed Deputy Moul of it during his initial investigation, given that he testified that he relied on that account in forming his judgment that no life-threatening emergency then existed. We also acknowledge that the account is not contained in Moul's written report, and further, that one of the dispatchers testified at a deposition that she may have learned about the "O.K. wave" at some later time. Moul, however, stated in both an affidavit and at his deposition that Debra Krueger reported the fact to him that night. Moul's account is not contradicted in Debra's affidavit, nor in the statement the Kruegers gave to the DNR investigator. Thus, Deputy Moul's testimony that he was informed by the Kruegers of the "O.K. wave" when he first interviewed them stands unrefuted in the record.

¶ 31. We conclude that Hoskins has pointed to no disputes of material fact that would render summary judgment inappropriate on the issue of whether the City and County are immune from suit for the actions of them employees on the night in question. The dissent, however, correctly notes that we may independently conclude from our de novo review of the summary judgment record that material facts are in dispute, even if the parties have not identified the disputed facts. See Grotelueschen v. American Family Ins. Co., 171 Wis. 2d 437, 462, 492 N.W.2d 131 (1992) (Abrahamson, J., dissenting) (noting that parties may "erroneously conclude that no factual dispute exists when in reality one does," and thus a court must determine on its own whether a genuine issue of material fact exists, which is "a question of law for the court, not for the parties"). Specifically, the dissent concludes that the variance between what the Kruegers indicate they told Deputy Moul, and his own version of their account, creates a genuine dispute of material fact that precludes summary judgment in the County's favor. We disagree.

■ ¶ 32. In Debra Krueger's affidavit, submitted by Hoskins, Debra states that before seeing the boat she observed that there were "white caps on the lake with three to four foot waves," and that the waves "were crashing over the sea wall by five to six feet onto the grass, which was very unusual." For his part, Moul acknowledged that it was "windy and raining on and off' when he arrived at the scene, that there were "somewhat" strong winds and storms, and that the lake was "rough" that night. He also testified that the waves were "pretty high" and that they were "crashing against the seawall." We conclude that there is no dispute that conditions on the lake were adverse, and that if a disabled or badly damaged boat were on the lake, its occupants would arguably be endangered.

¶ 33. Debra Krueger goes on in her affidavit to relate that she heard a voice calling for help, saw that Block's pier was damaged, and that three men were in a boat drifting toward the Krueger pier. She states further that after her husband turned on the dock lights and procured a spotlight, one of the men in the boat waved and she heard the motor start "but it didn't sound right." She then avers:

I was extremely concerned for the safety of these men as we knew they were in trouble. The motor stopped and started again. We couldn't see any lights on the boat. Even when the motor was running, it never sounded right.

Debra's account of her conversation with the deputy after he arrived in response to Block's 911 call is as follows:

I told the deputy that the boat had hit Mr. Block's pier and that the men had been yelling for help from the boat. I told the deputy that I thought the boat was having motor trouble because it didn't sound right. I kept stressing to the deputy that the men in the boat were in trouble and that I didn't think they would make it. They weren't OK. Mike and I kept emphasizing that We were concerned for the safety of the men in the boat. We repeated this three to four times. The deputy went down to the lake to look at the pier and then we went into [Block]'s garage where he took statements from us. He then got back into his squad car and left.

¶ 34. The Kruegers' statement to the DNR warden regarding what they had observed is similar. The handwritten statement includes the following:

12:05 A.M. I set up my spotlight, and my wife then saw one of the people wave as though they were "OK" and were taking off. They had gotten their motor started, hut it seemed to be running poorly. At this time we were worried about their safety.
My wife then ran to the house and called a DNR number, after no answer she came back to the boathouse as I was trying to tell the boat driver to wait. I was trying to put the light on the boat again. At no time did I see any boat running lights at all.
The boat was drifting down the lake to the north.
My wife then ran over to my neighbor's ... pier. She shouted, "Do you want me to call 911?"
Shortly afterward, my wife heard their motor start again and the boat headed out slowly on the shore side of a small rock pile. She recalled that the motor sounded like it was not running well. We did not have any contact with the boat after I lost them in my spotlight.
Deb called my neighbor ... at about 12:15 A.M. and informed him that his pier had been hit. Vern called the Dodge County Sheriffs Department and they responded about one hour later. We relayed what we recalled seeing and he took a report.

¶ 35. Deputy Moul's written report of his interview with the Kruegers is consistent with the Kruegers' accounts of what they observed and reported to him. (See quotation from report in ¶ 8 above.) Specifically, the deputy noted the initial yell for help from the boat occupants, the motor stopping and restarting, and the boat then proceeding north on the lake with its motor not sounding "like it was running right." The only significant discrepancy between the Kruegers' and Moul's versions of their conversation stems from cer-

tain responses Moul gave during his deposition. The deputy testified that Debra said "she thought everything was fine" after a boat occupant had waved to her, and that he did not believe Debra was worried about the safety of the three men after that.

¶ 36. Unlike the dissent, we conclude that to the extent there is a dispute between what Moul and the Kruegers relate regarding their conversation of May 5, 1999, it does not create a genuine issue of material fact so as to preclude summary judgment in the County's favor. See Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991) (noting that the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact" (citation omitted)). Material facts are those that are of consequence to the merits of the litigation. Michael R.B. v. State, 175 Wis. 2d 713, 724, 499 N.W.2d 641 (1993).

¶ 37. The summary judgment submissions disclose no dispute regarding what the Kruegers actually saw and reported to Moul. The observed events, however, as we have discussed, were equivocal. On the one hand, it was a stormy night, the lake was rough, and a boat had experienced motor problems and collided with a pier. On the other hand, the boat's motor had restarted, an occupant had waved an "O.K." to Debra Krueger, and the occupants had elected to motor off instead of landing and disembarking.

¶ 38. The variance in the two accounts of the conversation involves the impressions or conclusions the Kruegers formed from the events they had observed, and the degree to which they communicated their opinions to Moul. The Kruegers assert that they were very concerned for the safety of the boat occupants based on what they had observed, and that they emphatically communicated that concern to Moul. Moul, however, did not perceive the Kruegers as being overly alarmed and claimed that Debra Krueger said "she thought [the boat occupants] were okay."

¶ 39. We conclude that any dispute regarding whether or how strongly the Kruegers communicated their concerns for the safety of the boat occupants is not material to a determination of whether, on the facts known to the officer, there existed a "known, present danger." Stated another way, we conclude that the existence of a "known, present danger" should not turn on the subjective impressions of a citizen-witness. As we have explained, a "public officer's duty to act becomes 'absolute, certain and imperative,'. . . [when] the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act." Olson, 143 Wis. 2d at 715 (emphasis added). A ministerial duty should arise only when a court can confidently say that, based on the objective facts observed by or reliably communicated to the officer, only one course of action was open to him or her. To conclude otherwise would be to require public officers to act on the subjective impressions of witnesses instead of on the facts they have gathered.

¶ 40. In short, even if we accept the Kruegers' version of what they told Deputy Moul in toto, and thus accept that they were concerned for the safety of the boat occupants and that they emphatically communicated their concerns to Deputy Moul, the fact remains that the objective information they provided to Moul falls short of establishing a "compelling" danger, "known to [Moul] of such force that [he had] no discretion not to act." Id.

¶ 41. Hoskins makes three additional arguments but none are persuasive. First, he contends the City and County had a ministerial duty to enter into a "joint powers agreement" under Wis. Stat. § 146.70(9), and that their failure to do so somehow renders his claims against the municipal entities actionable. We disagree.

¶ 42. The cited statute requires public agencies who establish a combined 911 emergency dispatch system to enter into agreements under which, "if an emergency services vehicle is dispatched in response to a request through the basic or sophisticated system established under this section, such vehicle shall render its services to the persons needing the services regardless of whether the vehicle is operating outside the vehicle's normal jurisdictional boundaries." Section 146.70(9)(a). Agencies are also required to file a copy of the joint powers agreement with the Department of Justice, which is authorized to "commence judicial proceedings to enforce compliance" with the statute's requirements. Section 146.70(9)(c). Hoskins asserts that, "[w]hile it is only speculation, it seems reasonable to think that if an agreement had been filed, the Department of Justice would have been able to advise the municipalities how best to deal with situations like this one."

¶ 43. We agree with the City's observations that "summary judgment is decided upon the facts in the record and not speculation," and that "the existence or nonexistence of a written agreement [under Wis. Stat. § 146.70(9)] has no effect on the present case." The record discloses no jurisdictional dispute between the City and County regarding which entity was responsible for initially responding to Block's 911 call. Neither was there "an emergency services vehicle . . . dispatched in response to a [911] request" that subsequently refused to "render its services to the persons needing services" because the vehicle was "operating outside the vehicle's normal jurisdictional boundaries." Section 146.70(9)(a). The cited statute simply has no bearing on the events of May 4-5, 1999, or on the legal consequences which flow from them.

¶ 44. Next, Hoskins asserts that the trial court erred by "not addressing the issue of whether the defendants negligently relied on the Department of Natural Resources to perform a rescue." He claims that because the department "had no duty whatsoever to assist or to rescue," the County's call to the DNR warden seeking his advice "constituted one more example of the negligence that permeated the handling of this situation." As with an earlier argument, Hoskins again confuses the issues of negligence and immunity. See Kimps, 200 Wis. 2d at 11-12. Even if the County was negligent in relying on the DNR warden's advice to treat the matter as a "hit and run" incident, the existence of negligence is irrelevant to the issue of whether the City and County are immune from suit for the actions of their personnel on the night in question. Id.

¶ 45. Finally, Hoskins claims the trial court erred in "not addressing the spoliation issue in regards to the missing portions of the 911 tape." Apparently, a portion of Block's initial 911 call to the City dispatcher was missing from the transcript produced in response to discovery demands. Hoskins concedes that he is "not at this time contending that there has been an intentional act" on the City's part to withhold or destroy evidence, but he claims there is cause for "speculation as to what might have been on" the missing portion. Hoskins's concession ends the matter, given that no sanctions may even be considered unless there is clear and convincing proof that evidence was deliberately destroyed or withheld. Estate of Neuman v. Neuman, 2001 WI App 61, ¶ 80-83, 242 Wis. 2d 205, 626 N.W.2d 821. Moreover, as the City notes, Block himself provided a statement to Hoskins which included an account of what he told the City dispatcher during his 911 call. The fact that the transcript of Block's 911 call was incomplete is thus of little consequence to the issues in this appeal.

CONCLUSION

¶ 46. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

VERGERONT, EJ.

¶ 47. (dissenting). I agree with the majority's analysis and conclusion on City of Beaver Dam's immunity from suit. I write separately because I do not agree with its analysis and conclusion on Dodge County's immunity. In my view there is a conflict between Deputy Steven Moul's deposition testimony, on the one hand, and Debra Krueger's affidavit and the Kruegers' statement to the DNR, on the other, and the conflict is a genuine issue of material fact. As the majority acknowledges, there is no dispute that the conditions on the lake were rough. Given those conditions, I conclude that if a fact finder believes that Debra Krueger told Moul that the boat had hit the neighbor's pier, the motor stopped and started again but did not sound right, and she thought the boat was in trouble and might not make it, Moul was confronted with a known present danger of such force that he had no discretion not to act to determine if the people in the boat needed to be rescued. It is not disputed that Moul took no such action. Looking on the shoreline for the boat approximately one hour after the boat left the shore and checking other boat landings for the boat were not acts Moul undertook to determine if the people in the boat on the lake were in danger; according to Moul, he treated the incident as hit-and-run property damage, and that is what he was investigating when he took those actions.

¶ 48. I do not agree with the majority that if a fact finder believes Debra Krueger, Moul was faced with an ambiguous situation and therefore had the discretion to decide, without any further investigation, that the people in the boat were not in danger. Nor do I agree that, solely because the information was relayed to him by a witness, Moul had the discretion to disregard it without further investigation. This is not a case where the officer testified that he had reason to doubt the account of a witness nor a case where, for some other reason, the officer decided not to act based on the witness's account. Rather, Moul denies Debra Krueger gave him the account of her observations that she says she did.

¶ 49. I do not view the testimony of the hand wave from the boat as removing a factual dispute over whether Moul was confronted with a known present danger. Drawing all reasonable inferences in Hoskins's favor, the hand wave occurred before Debra Krueger heard the motor stop and start again, not sounding right. According to her affidavit, she did not tell Moul that she thought everything was okay when the boat left, but just the opposite.

¶ 50. I do not agree with the majority's implicit premise that the facts in this case must come "squarely within" Linville v. City of Janesville, 174 Wis. 2d 571, 586-88, 497 N.W.2d 465 (Ct. App. 1993), aff'd, 184 Wis. 2d 705, 721, 516 N.W.2d 427 (1994), in order for a known present danger to exist here. I do not agree that a known present danger did not exist here simply because Moul was not told that "a person had gone overboard and was then and there in the water, needing to be rescued." In Cords v. Anderson, 80 Wis. 2d 525, 541-42, 259 N.W.2d 672 (1977), a park trail within inches of a bluff edge, which a park manager knew of but did nothing to warn others of, was a known present danger. In Lodi v. Progressive Northern Ins. Co., 2001 WI App 3, ¶ 17, 240 Wis. 2d 652, 625 N.W.2d 601, review granted, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (May 8, 2001) (No. 00-0221), an intersection with inoperative traffic lights in a storm was a known present danger requiring the officer dispatched to direct traffic to actively attempt to do that rather than stand by. If Debra Krueger's account of what she told Moul is accepted by a fact finder, I do not believe that Moul was confronted with a danger that was less compelling — less present or known — than those in Cords and Lodi.

¶ 51. Because I conclude there is a genuine issue of material fact with respect to the County's immunity from suit, I conclude the County was not entitled to summary judgment in its favor on this ground. Therefore, I respectfully dissent.

       In addition to Hoskins and his wife, Vivian, the estates and next of kin of Roylan Sims and James Hooper are plaintiffs-appellants. The three men were occupants of the boat whose misfortune underlies this litigation. We will refer to all plaintiffs-appellants, collectively, as Hoskins.

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

       State officers and employees also enjoy immunity from liability for acts performed within the scope of their office or employment. Linville v. City of Janesville, 174 Wis. 2d 571, 583, 497 N.W.2d 465 (Ct. App. 1993), affirmed, 184 Wis. 2d 705, 516 N.W.2d 427 (1994). The scope of state officer immunity "differs in some respects" from municipal immunity under Wis. Stat. § 893.80(4), and it originates in the common law. Id.; see also Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996) (distinguishing state public officer immunity from municipal immunity, but noting that "the tests for immunity are similar").

       Although the supreme court in Barillari discussed "exceptions ... to this general rule of immunity," Barillari v. City of Milwaukee, 194 Wis. 2d 247, 257, 533 N.W.2d 759 (1995), the court has also stated that for municipal employees, in contrast to state employees, " 'the rule is liability — the exception is immunity.'" Kimps, 200 Wis. 2d at 10 n.6 (citing Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39, 115 N.W.2d 618 (1962)).

        See, e.g., Barillari, 194 Wis. 2d at 257-58.

        Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), is the seminal case in Wisconsin regarding "known and present danger." There, a park manager knew of an existing dangerous condition and "failed to do anything about it." Id. at 541.

       We consider below Hoskins's claim that there is a genuine dispute in the record on summary judgment as to whether the Kruegers informed Deputy Moul that an occupant waved "O.K." on the night of the incident, or, as the dissent maintains, whether differences between what the Kruegers say they told the deputy as opposed to what he claims they told him preclude summary judgment for the County.

       In its response brief, the City states that u[i]t is difficult to determine exactly which facts appellants claim are disputed." As we have discussed above, we agree with this observation, concluding that Hoskins failed to identify any disputed material facts in his opening brief. One of the reasons for our "general rule" of not addressing arguments first raised in a reply brief is that it deprives the respondent of the opportunity to make countering arguments, as the briefs in this case demonstrate. See Baraboo Nat'l Bank v. State, 199 Wis. 2d 153, 157 n.1, 544 N.W.2d 909 (Ct. App. 1996).

       In the affidavit, Debra indicates that she communicated her concerns about the safety of the boat occupants to Deputy Moul, but she does not deny also telling him that one of the men waved "O.K." before the boat departed the pier area. In their statement to the warden, the Kruegers affirm that Debra "saw one of the people wave as thought they were 'OK' and were taking off," and that they "relayed what we recalled seeing and [the deputy] took a report."

       One reason that a court should not rely on the impressions of witnesses regarding the facts they communicate to law enforcement officers is that the impressions may change over time. Debra Krueger said in her affidavit that when she learned of the drownings the next day, "I felt terrible because I believe that all of this could have been avoided if the deputy sheriff had followed through and sent some one out on the lake to look for the disabled boat that we told him we were concerned about." Just as Debra's regret over the tragedy that subsequently occurred may have colored her recollection of the urgency with which she communicated her concerns to Deputy Moul, the fact that the County was being sued for failing to act on the Kruegers' report provided a strong incentive for Moul to understate the Kruegers' concerns and the degree to which they communicated them. We conclude that a court stands on firmer ground if it confines a determination of whether a "known, present danger" existed to the factual observations of the officer and witnesses.

       At his deposition, Moul testified that he did not borrow a boat to look for the men on the lake because Debra Krueger said she thought they were okay.


author: ROGGENSACK, J.

text:
    James H. Gold, Plaintiff-Appellant, v. City of Adams, Defendant-Respondent.
    Court of Appeals

      No. 01-1173.

      Submitted on briefs October 5, 2001.

    Decided January 31, 2002.

    2002 WI App 45
    (Also reported in 641 N.W.2d 446.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas M. Croke of Thomas Croke Law Office, S.C. of Adams.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Alyson K. Zierdt of Davis & Kuelthau, S.C. of Oshkosh.
    Before Roggensack, Deininger and Lundsten, JJ.

      Petition to review denied 5-21-02.

   ROGGENSACK, J.

¶ 1. Over a period of three years, the City of Adams increased some components of Chief of Police James Gold's total cash payments from the City, but it also reduced and then eliminated one component, the "longevity bonus." Gold contends that the City acted unlawfully by decreasing his longevity bonus without first obtaining a recommendation from the board of police and fire commissioners, pursuant to Wis. Stat. § 62.13(7) (1999-2000). The circuit court agreed that a reduction in cash payments to Gold required prior board approval, but it awarded Gold less damages than he claimed. Gold appealed, and the City, while arguing that the circuit court correctly interpreted the statute, also contends that the appeal should be dismissed because Gold was not "aggrieved" by the circuit court's decision. We conclude that because the circuit court's decision directly injured Gold's alleged interests in an appreciable manner, Gold is an aggrieved party who may appeal as of right. We also conclude that the circuit court properly interpreted and applied § 62.13(7) by comparing the total cash payments Gold received for each year at issue with the total cash payments he received for the immediately preceding year. Accordingly, we affirm the circuit court's judgment.

BACKGROUND

¶ 2. James Gold has been employed by the City of Adams since 1979 and has served as the City's Chief of Police since 1986. During all years relevant to this appeal, he has been paid (1) an annual base salary set by resolution of the City's common council and (2) additional cash payments. From 1984 through 1996, the cash payments in addition to his base salary included a "longevity bonus," defined as follows:

After five (5) years of service, 1% of the yearly total gross income (yearly salary) is paid. Each year thereafter, the rate of longevity paid will increase by 1% per year, until the maximum rate of 7% of the yearly income has been reached.

As suggested by the quoted language, the longevity bonus was calculated by multiplying Gold's annual base salary by the applicable percentage. Because of the length of his service to the City, Gold earned the maximum 7% longevity bonus in 1996 and in several years prior to 1996.

¶ 3. In 1997, the City began to phase out the longevity bonus. Accordingly, Gold received only a 3.7% longevity bonus in 1997, a 3.5% longevity bonus in 1998 and no longevity bonus in 1999. However, in the same time frame, the City increased Gold's base salary and other cash payments so that his total cash receipts in any year were nearly equivalent to those he had received in the previous year. In summary form, Gold's annual cash receipts from 1996 until 1999 were as follows:

¶ 4. Following the City's decision to reduce and eventually eliminate the longevity bonus, Gold brought this action claiming that the City had unlawfully decreased his salary without following the requirements of Wis. Stat. § 62.13(7). The circuit court held that to the extent the City had decreased Gold's total cash payments during any of the years at issue, the City had failed to comply with § 62.13(7) because it had not first obtained the required recommendation. The circuit court did not separately compare the amount of each component in a given year to what that component had been in the previous year, as Gold had argued it should.

¶ 5. The circuit court concluded that the term "salaries" as used in Wis. Stat. § 62.13(7) encompasses more than simply an. employee's annual base salary. It held that it encompassed the total annual cash payments made, including the longevity bonus. The circuit court reasoned that § 62.13(7) was contravened only if the total cash payments in a given year were less than the total cash payments received in the preceding year. The circuit court then calculated that the City had unlawfully decreased Gold's "salaries" within the meaning of § 62.13(7) by $0.15 in 1997 and by $861.78 in 1999. The circuit court further concluded that the total cash payments Gold received in 1998 had increased as compared to 1997, and it awarded no damages for 1998.

DISCUSSION

Standard of Review.

; ¶ 6. Only aggrieved parties have a right to appeal. Tierney v. Lacenski, 114 Wis. 2d 298, 302, 338 N.W.2d 522, 524 (Ct. App. 1983). We decide as a matter of law whether an appellant is an aggrieved party and whether the court has jurisdiction to hear and determine the appeal. Snopek v. Lakeland Med. Ctr., 215 Wis. 2d 539, 544, 573 N.W.2d 213, 215 (Ct. App. 1997), rev'd on other grounds, 223 Wis. 2d 288, 588 N.W.2d 19 (1999).

¶ 7. The facts here are undisputed. Statutory construction and the application of a statute to undisputed facts are questions of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997).

Aggrieved Party.

¶ 8. A party is aggrieved and may bring an appeal as of right if the appealed judgment or order directly injures the party's interests in an appreciable manner. Tierney, 114 Wis. 2d at 302, 338 N.W.2d at 524. Applying this standard, we conclude that Gold is an aggrieved party.

¶ 9. Gold asserts an interest in a 7% longevity bonus unless and until the City decreases the bonus after first obtaining a recommendation from the City's board of police and fire commissioners, without consideration of whether his total cash receipts have diminished. The circuit court rejected this argument. Instead, the circuit court concluded that, for purposes of Wis. Stat. § 62.13(7), Gold was protected only from decreases in the total cash payments he received. Significantly, Gold did not argue for an alternative result. The difference between the damages that Gold sought and the damages actually awarded by the circuit court was about $3,752. In addition, the circuit court's decision directly affects Gold's asserted interest in future longevity bonus payments.

¶ 10. Because the circuit court denied Gold the relief he requested, and because there is a substantial difference between the damages sought and the damages awarded, we conclude that Gold's alleged interests have been directly injured in an appreciable manner. See Snopek, 215 Wis. 2d at 546, 573 N.W.2d at 216 (distinguishing State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44 (1997), on the grounds that the defendant-petitioner in Castillo had received one of the three alternative forms of relief that he had requested). Accordingly, Gold is an aggrieved party with a right to appeal.

Statutory Interpretation.

¶ 11. When we are asked to apply a statute whose meaning is in dispute, our aim is to ascertain the intent of the legislature. Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. We begin with the language of the statute itself, looking not simply at isolated words or phrases, but at the meaning of the relevant language in the context of the entire statute. Id.; Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515. "If the language of the statute clearly and unambiguously sets forth the legislative intent, it is our duty to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning." Landis v. Physicians Ins. Co. of Wis., Inc., 2001 WI 86, ¶ 14, 245 Wis. 2d 1, 628 N.W.2d 893. However, if the language chosen by the legislature is capable of more than one reasonable meaning, this court will determine legislative intent from the statute's context, subject matter, scope and history, as well as the goal the legislature was attempting to accomplish. Truttschel, 208 Wis. 2d at 365-66, 560 N.W.2d at 317.

¶ 12. Wisconsin Stat. § 62.13(7) provides that Gold's "salaries . . . may be increased but not decreased by the council without a previous recommendation of the board." The term "salaries" is not defined in ch. 62. However, the supreme court presumed salary means cash payments in its discussion of "compensation" under Wis. Stat. § 62.13(9) (1969). See State ex rel. City of Manitowoc v. Police Pension Bd. for the City of Manitowoc, 56 Wis. 2d 602, 609-12, 203 N.W.2d 74, 77-79 (1973). This term is potentially ambiguous. For example, the legislative choice of the plural form of the noun, salary, could indicate the legislature's acknowl-edgement that a police chief may receive several types of cash payments, as Gold has here, or it may refer only to base salary, or it may simply flow from addressing salaries of two different groups, i.e., salaries of the chiefs and their subordinates. However, none of those constructions supports Gold's contention. In order to interpret the statute as Gold requests us to do, we would have to re-write the statute as: "Such salaries when so fixed may be increased but no part may be decreased by the council without a previous recommendation of the board." While we understand Gold's concerns, we are not free to re-write the statutes. That task belongs to the legislature.

¶ 13. Additionally, we fail to see how individually protecting the various components of an overall salary formula would further the purpose of the statute, which is to promote the independence of the police department and to protect the police chief from arbitrary, imprudent or improperly motivated decreases in the payments made by the municipality. See Van Gilder v. City of Madison, 222 Wis. 58, 63, 267 N.W. 25, 27 (1936) ("[T]he end to be achieved by this section ... is to lodge a degree of control over the police and fire departments and so prevent the disorganization and deterioration of the departments . ..."). All the payments at issue here are cash payments, making them all fungible components of Gold's salary. Therefore, Gold could make a mortgage payment or purchase tickets for a ball game just as easily with the cash he received from his base salary as he could with the cash he received from a longevity bonus. Accordingly, reducing the cash payments of one component while increasing them in another could not compromise Gold's independence as a member of the police department through financial pressure. Decreases would run contrary to the purpose of the statute only if Gold had less total cash to cover his expenses and discretionary spending choices. Accordingly, we conclude that the circuit court properly interpreted and applied Wis. Stat. § 62.13(7) by comparing Gold's total cash receipts for each year at issue with his total cash receipts for the immediately preceding year.

CONCLUSION

¶ 14. We conclude that because the circuit court's decision directly injured Gold's alleged interests in an appreciable manner, Gold is an aggrieved party who may appeal as of right. We also conclude that the circuit court properly interpreted and applied Wis. Stat. § 62.13(7) by comparing the total cash payments Gold received for each year at issue with the total cash payments he received for the immediately preceding year. Accordingly, we affirm the circuit court's judgment.

By the Court. — Judgment affirmed.

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

       Wis. Stat. § 62.13(7) reads as follows:
      Compensation. The salaries of chiefs and subordinates shall be fixed by the council. Unless the council otherwise provides, in cities of the 4th class rewards for the apprehension of criminals may be retained by the person entitled thereto. Such salaries when so fixed may be increased but not decreased by the council without a previous recommendation of the board. The council may provide that the salaries shall increase with length of service.

       Gold asserted that his damages for each year following 1996 equaled the difference between a full 7% longevity bonus and any actual longevity bonus payment that he received, irrespective of any other amounts he received. Applying this interpretation of Wis. Stat. § 62.13(7), Gold claimed a total of $4,615 in damages for 1997 through 1999. He also asserted an interest in future longevity bonuses at 7% per year.

        We note that Gold has not challenged the circuit court's calculation of his total annual cash payments for any of the years at issue. In particular, Gold has raised no issue concerning whether the circuit court properly identified the separate cash components he received. Similarly, the City has not appealed the circuit court's ruling that Wis. Stat. § 62.13(7) applies to the City of Adams. As these issues have not been presented for our review, we express no opinion on them.

       We conclude that we need not address Gold's contention that the statutory "adverse decision" standard applied in State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44 (1997), is different from the "aggrieved party" standard set forth and applied in Tierney v. Lacenski, 114 Wis. 2d 298, 338 N.W.2d 522 (Ct. App. 1983).