author: JON E WILCOX, J.

text:
    Donald R. Kitten, Plaintiff-Appellant-Petitioner, v. State of Wisconsin Department of Workforce Development, Defendant-Respondent.
    Supreme Court

      No. 00-3562.

      Oral argument February 4, 2002.

    Decided May 24, 2002.

    2002 WI 54
    (Also reported in 644 N.W.2d 649.)

      For the plaintiff-appellant-petitioner there were briefs by Phil Elliott, Jr., and Elliott, Elliott & Stasku-nas, West Allis, and oral argument by Phil Elliott, Jr.

    For the defendant-respondent the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    An amicus curiae brief was filed by Mary Dianne Greenley, Michael Bachhuber, and Monica Murphy, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc.

       Motion for reconsideration denied 9-18-02.

   JON E WILCOX, J.

¶ 1. In this case, we review a court of appeals decision, Kitten v. DWD, 2001 WI App 218, 247 Wis. 2d 661, 634 N.W.2d 583, which affirmed the administrative ruling of Department of Workforce Development (DWD) hearing examiner Alice E. DeLaO. The hearing examiner concluded that Donald R. Kitten had violated the Wisconsin Open Housing Act (WOHA), Wis. Stat. § 106.04 (1997-98), when he discriminated against the complainant, Spencer Cenname, on the basis of a perceived disability.

¶ 2. Cenname sought to rent an apartment from Kitten. When Kitten found out that Cenname had previously been hospitalized for the eating disorder bulimia nervosa, Kitten became concerned that Cen-name would either attempt suicide or be rehospitalized and therefore unable to pay the rent. As a result, Kitten sought an advance payment of six months' rent from Cenname.

¶ 3. Cenname filed a complaint with the Equal Rights Division of the DWD claiming that Kitten had discriminated against him on the basis of disability. The hearing examiner determined that there was not enough evidence to conclude that Cenname had an actual disability under the WOHA, but that there was sufficient evidence to show that Kitten regarded Cenname's eating disorder as one that substantially limited Cenname's major life functions. The hearing examiner concluded that this qualified as a disability under the WOHA because of the "regarded as" clause in the statutory definition of "disability," Wis. Stat. § 106.04(lm)(g).

¶ 4. On judicial appeal, both the Waukesha County Circuit Court, Donald J. Hassin, Judge, and the court of appeals affirmed the conclusions of the hearing examiner. On review, we agree, and hold that Kitten's perception of Cenname's impairment was sufficient to qualify as a "disability" under the "regarded as" provision of the WOHA. We therefore affirm the court of appeals and uphold the decision of the hearing examiner.

HH

¶ 5. We begin by recounting the facts of the case. Because this is a review of an administrative hearing, we will uphold the hearing examiner's findings of fact as long as they are supported by substantial evidence in the record. Wis. Stat. § 227.57(6). The test is whether, taking into account all of the evidence in the record, " 'reasonable minds could arrive at the same conclusion as the agency.'" RURAL v. PSC, 2000 WI 129, 239 Wis. 2d 660, 676, 619 N.W.2d 888 (quoting Madison Gas & Elec. Co. v. PSC, 109 Wis. 2d 127, 133, 325 N.W.2d 339 (1982)). The findings of an administrative agency do not even need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. Chi. & N.W.R.R. v. LIRC, 98 Wis. 2d 592, 607-08, 297 N.W.2d 819 (1980). If the factual findings of the administrative body are reasonable, they will be upheld.

¶ 6. Although the parties do suggest that there are some factual disputes in this case, we think that the findings of the hearing examiner are reasonable and that they are supported by the evidence in the record. We therefore accept the following findings of fact, as made by the hearing examiner in this case.

¶ 7. On September 8, 1998, Cenname called Kitten to inquire about an apartment in Brookfield, which Kitten had advertised for rent. Kitten told Cenname that the apartment was expensive — $925 a month — and that Cenname "must have a pretty good job" to afford the rent. Cenname said he was not currently employed, but he could provide a financial statement showing he was able to pay the rent. Kitten noticed on his telephone caller identification device that Cenname's phone call had originated at the Rogers Memorial Hospital.

¶ 8. Cenname met with Kitten the next day, viewed the rental property, and decided that he wanted to lease it. Cenname provided Kitten with a letter from his father detailing Cenname's financial status. Cenname's father was an executive with Merrill Lynch, who also served as Cenname's financial advisor. The letter showed Cenname's current account balances as in excess of $40,000 and noted that Cenname received an income of $3000 per month after taxes. The letter further stated that Cenname had maintained an account with Merrill Lynch for over 13 years, and that Cenname's credit card bills had always been paid promptly. Along with the letter, Cenname gave Kitten copies of his account statements, confirming that he had a balance of over $40,000 as of July 31, 1998. Cenname also provided the names and telephone numbers of several financial references, including a former landlord.

¶ 9. As they prepared the paperwork, Kitten asked Cenname where he lived. Cenname initially said that he was staying with friends. Kitten persisted in his questioning, however, and Cenname eventually admitted that he was living at Rogers Memorial Hospital, where he was in residential treatment for an eating disorder. Kitten and Cenname had a short discussion about the eating disorder, and Kitten mentioned that it looked like Cenname had not been eating enough.

¶ 10. Kitten reviewed the lease agreement with Cenname and pointed out that Cenname would be required to pay one month's rent in advance along with a $1000 security deposit. Kitten explained that any money paid on that day would be non-refundable in the event that Cenname decided not to lease the apartment. Kitten also went over several other provisions of the lease, including the fact that Kitten intended to run a credit check on Cenname before Kitten would sign the lease. When they finished reviewing the lease, Cenname wrote a check to Kitten for $1925 to cover the first month's rent and the security deposit. Cenname asked Kitten for a copy of the lease, and Kitten told Cenname that he would send a copy by mail.

¶ 11. On September 11, 1998, Kitten received a verbal credit report for Cenname. The report revealed that Cenname's credit history was sparse, but it did not show any negative information. The verbal report was confirmed by a written credit report, which Kitten received about three weeks later. Kitten cashed Cenname's check on September 14, 1998.

¶ 12. On September 27, 1998, Cenname called to inform Kitten that he intended to move into the apartment on October 2, 1998. Cenname asked Kitten how he would get into the apartment and asked why Kitten had not sent him a copy of the lease. Kitten said that he was concerned that Cenname might be readmitted to the hospital and that Kitten would not get his rent money. Kitten said he would "feel better" if Cenname paid six months' rent in advance. Cenname initially agreed to pay Kitten the advance rent because he was afraid that Kitten would not rent the apartment to him otherwise. Cenname agreed to meet Kitten at the apartment on October 2 and asked Kitten to fax a copy of the lease to the hospital.

¶ 13. Kitten called Cenname the next day and asked if he could talk to Cenname's doctor. Cenname told Kitten that his treating physician was Dr. Richard Holbrook, the director of the Eating Disorder Center at Rogers Memorial Hospital. Cenname said that he would have Dr. Holbrook call Kitten. Cenname again mentioned that he was uncomfortable paying the advance rent; Kitten responded by reiterating his concern about rehospitalization. Cenname renewed his request for a copy of the lease.

¶ 14. On September 29, 1998, Kitten called Dr. Holbrook's office and left a message asking to speak with Dr. Holbrook about Cenname. Deanna Mueller, the clinic's office manager, got the message and contacted Cenname to see if Cenname would give Dr. Holbrook permission to speak with Kitten. Cenname was surprised to hear that Kitten had attempted to contact Dr. Holbrook without Cenname's approval and refused to give his consent.

¶ 15. Cenname called Kitten and expressed his displeasure with Kitten's actions. Kitten insisted that he needed to speak with Cenname's doctor and again insisted on a payment of six'months' rent up front. Later that day, Kitten finally faxed a copy of the lease to Cenname. The copy of the lease bore only Cenname's signature; Kitten had not signed it.

¶ 16. On September 30,1998, Cenname contacted Kitten to say that he would not pay the six months' advance rent and that Kitten did not have permission to speak to Dr. Holbrook. Kitten said that his sister, a nurse, had told him that Cenname's condition could involve depression. Kitten then described a hypothetical situation where he came to the apartment and found Cenname in his car, in the garage, with the door closed, and exhaust fumes coming from the car. Kitten said he was concerned that such a situation would damage the rental unit. Cenname denied being suicidal, and said that if Kitten needed more financial information, he should call Cenname's father.

¶ 17. Later that day, Kitten called Cenname's parents' home in Columbus, Ohio, and spoke with Cenname's mother. Cenname's father was not home at the time. Kitten explained that he had two concerns about Cenname renting the apartment. First, Kitten stated that he was worried that Cenname might try to commit suicide. Kitten explained that the garages were attached to the housing units and he was worried that exhaust fumes might enter the other units. Cenname's mother told Kitten that Cenname had been suicidal at one time, but that it was not a present concern. Kitten also asked Cenname's mother if she and her husband were willing to co-sign Cenname's lease and be jointly responsible for the rental payments. Cenname's mother assured Kitten that Cenname had a guaranteed income of $36,000 a year, but agreed to co-sign the lease as long as Fatten informed Cenname that Kitten was asking them to co-sign.

¶ 18. Kitten spoke with Cenname that day and told Cenname that he had spoken to Cenname's mother. Kitten indicated that Cenname's mother had said Cen-name should "choose his poison" — suggesting that Cen-name had to choose either to pay the six months' advance rent or to have his parents co-sign the lease. Cenname's mother denied having made such a statement.

¶ 19. Cenname discussed the matter with a local fair housing organization, which encouraged Cenname to pretend to agree to the advance rent payment and tape record his conversation with Kitten. After talking with a family attorney from Ohio and the treatment staff at the hospital, however, Cenname decided not to go through with the plan and tentatively decided to pay the advance rent.

¶ 20. On October 1, 1998, Cenname changed his mind again, and refused to make the advance payment. Cenname told Kitten that he planned to stick by the original agreement. Both parties then agreed that "the deal was off." Cenname asked for his $1925 down payment back, which Kitten refused to return. Kitten told Cenname that he did not intend to return the money because Cenname had already signed the lease.

¶ 21. Cenname filed a complaint with the DWD Equal Rights Division alleging that Kitten had violated the WOHA by exacting more stringent lease terms on account of Cenname's disability. An investigator found probable cause for the complaint and the matter was brought before a hearing examiner on the merits of the claim.

¶ 22. After a full hearing, the hearing examiner found that there was insufficient evidence to show that Cenname had an actual disability or a record of disability. However, the examiner held that Cenname was a person with a disability within the meaning of the WOHA because Kitten regarded Cenname as disabled. The hearing examiner also concluded that Kitten had violated the WOHA by exacting more stringent terms for the rental of a housing unit because of the perceived disability.

¶ 23. Kitten was ordered to pay $12,673.67 for expenses incurred by Cenname as a result of the discriminatory actions, an amount which included the return of Cenname's security deposit. Kitten was also ordered to pay $10,000 for Cenname's emotional distress and $5000 as a forfeiture to the State. Kitten sought judicial review of the decision under Wis. Stat. §§ 106.04(6)(j) and 227.52.

¶ 24. Both the Waukesha County Circuit Court and the court of appeals affirmed the hearing examiner's decision. In a published opinion, the court of appeals agreed with the hearing examiner's finding that Kitten's beliefs about Cenname's eating disorder qualified as a disability under the WOHA because of the "regarded as" clause of § 106.04(lm)(g). Kitten, 2001 Wl App 218, ¶ 30. The court of appeals also held that there was enough evidence for the hearing examiner to conclude that Kitten believed that Cenname's condition substantially impaired Cenname's ability to perform major life functions. Id. at ¶ 31.

¶ 25. This court accepted Kitten's petition for review and we affirm the court of appeals' decision. We hold that the hearing examiner correctly decided that Kitten's perceptions of Cenname qualified as a disability under the WOHA and that Kitten discriminated against Cenname on the basis of that perceived disability.

II

¶ 26. As with most cases involving the review of administrative decisions, we begin with a brief discussion of the standard of review. Although we owe substantial deference to an administrative agency's findings of fact, the deference we owe to an agency's legal conclusions depends on several factors.

¶ 27. When analyzing agency decisions, this court has generally applied three levels of deference to an agency's conclusions of law and statutory interpretation. Jicha v. DILHR, 169 Wis. 2d 284, 290, 485 N.W.2d 256 (1992). If the agency is charged by the legislature with the interpretation of a statute; the interpretation of the agency is long-standing; and the agency has experience, technical competence, and specialized knowledge that aid the agency in its interpretation and application of the statute, we have afforded the agency determination great weight. Id. at 290-91; Theuer v. LIRC, 2001 WI 26, ¶ 6, 242 Wis. 2d 29, 624 N.W.2d 110. Under the "great weight" standard, we will uphold the agency's decision unless it is unreasonable. Theuer, 2001 WI 26, ¶ 14.

¶ 28. If the issue is " 'very nearly' one of first impression," we give due weight to the agency's determinations. Jicha, 169 Wis. 2d at 291. Under the "due weight" standard, we give the agency's decision some deference if the agency's interpretation is reasonable and complies with the statute's purpose; however, we are not bound by the decision. Brauneis v. State, 2000 WI 69, ¶ 20, 236 Wis. 2d 27, 612 N.W.2d 635. If an alternative interpretation appears more reasonable, we are not required to adopt the agency's interpretation. Id.

¶ 29. Finally, when the issue is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented, we review the agency's interpretation de novo. Id.

¶ 30. In this case, we are presented with three questions of law. First, we must decide whether discrimination based on a perceived disability is sufficient to trigger the protections of the WOHA even when the complainant has not proven an actual disability. Second, if we answer the first question affirmatively, we must decide if the perceived impairment in this case rises to the level of a disability for the purposes of the statute. Finally, if a disability does exist under the statute, we must then determine if Kitten discriminated against Cenname on the basis of that disability.

¶ 31. In weighing the standards of review, we think that it is appropriate to consider all three questions under the "great weight" standard. The legislature has given the DWD Equal Rights Division and its predecessors the responsibility for administering the WOHA. Wis. Stat. § 106.04(ls). As such, the Equal Rights Division has experience in deciding cases of discrimination based on disability and is regularly required to determine both if an individual's impairment rises to the level of a "disability" under the statute and whether a party's actions constitute discrimination. We therefore find the "great weight" standard of review appropriate.

A

¶ 32. We first address the question of if and when housing discrimination based on a perceived disability is actionable under the WOHA. In her decision, the hearing examiner found that there was not enough evidence to prove that Cenname had either an actual disability or a record of disability. Both parties agree with this conclusion and, after a review of the record, so do we. The debate arises in this case because of the examiner's other conclusion — that the record showed sufficient evidence that Kitten "regarded" Cenname as disabled. We thus focus our attention on whether the hearing examiner correctly decided that such a "perceived" disability could trigger the protections of the WOHA.

¶ 33. This is a question of statutory interpretation. As with all questions of statutory interpretation, our goal is to discern the intent of the legislature. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 14, 245 Wis.2d 1, 628 N.W.2d 893. To determine legislative intent, we first look to the plain language of the statute. Id. If the legislature's intent can be determined from the clear and unambiguous language of the statute, we do not look beyond the statutory language to ascertain its meaning. Id.

¶ 34. For purposes of the WOHA, "disability" is defined as "a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment. ... " Wis. Stat. § 106.04(lm)(g). The first two parts of this definition plainly require some proof of an actual or former impairment. The question presented here involves the third part of that definition: whether the "regarded as" clause protects persons against discrimination based on a perceived disability when the complainant cannot or does not prove the existence of an actual disability. We focus on the construction of that clause.

¶ 35. Because the "regarded as" clause refers back to the portion of the definition that describes the requirements for an actual disability, we must adopt that reference as included in the "regarded as" definition. Thus, to be "regarded as" disabled, a person must be "regarded as having a physical or mental impairment that substantially limits one or more major life activities." "Regard" is not statutorily defined. However, the word's common definition, as used here, is "to look at from a particular point of view." Webster's Third New International Dictionary 1911 (1986); see also Wis. Stat. § 990.01(1). Thus, we think the plain language of the "regarded as" clause supports the notion that some form of perceived disability qualifies as a disability under the WOHA.

¶ 36. It is not clear, however, whether the impairment itself must be an actual impairment or whether the impairment, as well as the extent of that impairment, may be merely perceived. Depending on whether or not the phrase "regarded as" modifies the term "impairment," as well as the phrase "substantially limits one or more major life activities," the complainant's quantum of proof can vary. For instance, a person might be "regarded as" disabled when that person has an actual impairment, which is mistakenly viewed as a substantially limiting condition when in reality it is not. See Michael D. Moberly, Perception or Reality ?: Some Reflections on the Interpretation of Disability Discrimination Statutes, 13 Hofstra Lab. & Emp. L.J. 345, 347 n.23 (1996) (citing Bogue v. Better-Bilt Aluminum Co., 875 P.2d 1327, 1335 (Ariz. Ct. App. 1994)). Alternatively, a person might be "regarded as" disabled if that person has an actual impairment that does not itself limit his or her activities, but does limit the person's activities because of the attitudes and perceptions of others. Id. A person might also be "regarded as" disabled if the person has no actual impairment whatsoever, but another person mistakenly believes that impairment exists, and mistakenly believes that the impairment substantially limits that individual's major life activities. Id.

¶ 37. Kitten argues that there can be no finding of a disability when the complainant does not prove the existence of some impairment that would qualify as a disability under the WOHA. Kitten notes that there was no expert medical testimony given at the administrative hearing and the only medical evidence admitted was a letter from Dr. Holbrook stating that Cenname had been diagnosed with bulimia nervosa and that Cenname was under Dr. Holbrook's care for that disorder. As such, Kitten argues that Cenname was unable to show that he had a physical or mental impairment that substantially limited one or more of his major life activities, as defined by Wis. Stat. § 106.04(lm). Kitten emphasizes the hearing examiner's explicit acknowl-edgement that there was not enough evidence to show that Cenname had an actual disability or a record of disability.

¶ 38. We agree with Kitten's assessment of the evidence only as far as it applies to proof of an actual disability or a record of disability under the statutory definition. Here, however, the examiner held that Kitten's perceptions and beliefs about Cenname's depression, suicidal tendencies, and the chance of Cen-name being rehospitalized, even if incorrect, could qualify as a disability under the third part of the definition — the "regarded as" clause. Wis. Stat. § 106.04(lm)(g). Kitten's argument misses what we think is a more important inquiry here, which relates to Cenname's proof of an actual impairment, and not his proof of disability.

¶ 39. There is no statutory definition of "impairment" in the WOHA. However, we have previously defined "impairment" in the context of the WFEA to mean a "lessening, deterioration, or damage to a normal bodily function or bodily condition." La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 759-60, 407 N.W.2d 510 (1987); Am. Motors Corp. v. LIRC, 119 Wis. 2d 706, 713, 350 N.W.2d 120 (1984). Since it is used similarly, we think that this definition is also appropriate for inquiries under the WOHA.

¶ 40. The problem arises in this case because there is some evidence that Cenname had an actual impairment, but the hearing examiner never made a ruling on that issue. The examiner only held that Cenname was unable to prove an actual disability. We agree that the examiner's conclusion with regard to the actual disability was reasonable, but we are still left with the question of whether the perception of an impairment is sufficient to trigger the protections of the WOHA.

¶ 41. To answer this question, we find it appropriate to draw comparisons to employment discrimination cases, as we have not addressed the issue as it relates to the WOHA. We focus on La Crosse, 139 Wis. 2d 740, where we faced a question nearly identical to the one presented here as it related to the definition of "handicapped individual" under the Wisconsin Fair Employment Act (WFEA). In La Crosse, the complainant, Daniel Rusch, applied for employment with the city of La Crosse as a police officer. The La Crosse Police and Fire Commission (PFC) recommended to the police chief that Rusch not be hired because of his substandard performance on a back-strength test during a physical examination. Id. at 746. After consulting with a physical therapist, Rusch retook and passed the back-strength test, but was still not placed on the police eligibility list because he had failed the first test. Id. at 747. Rusch filed a complaint with the Wisconsin Department of Industry, Labor and Human Rights (DILHR), arguing that he had been discriminated against on the basis of a perceived handicap.

¶ 42. The PFC argued that Rusch could not be considered a "handicapped individual" under the WFEA if he did not prove some actual impairment that rose to the level required under the statute. On review, we disagreed, holding that the perception of a handicap was enough to invoke the statute. Id. at 765.

¶ 43. Although we did not base our holding on it, we took particular note of the fact that between the time Rusch filed his complaint and the time the decision was issued in La Crosse, the legislature had added a definition of "handicapped individual" to the statute. See ch. 334, Laws of 1981. Under the new definition, a "handicapped individual" within the meaning of the WFEA was a person who "(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) Has a record of such an impairment; or (c) Is perceived as having such an impairment." Wis. Stat. § 111.32(8) (1983-84) (emphasis added). Although the statute was not in effect in time for us to use it in the La Crosse case, we noted that the history of the statute demonstrated the legislature's intent to codify definitions that had already been adopted in prior cases of this court. La Crosse, 139 Wis. 2d at 756; Am. Motors, 119 Wis. 2d at 712 n.4.

¶ 44. Turning back to the WOHA, we see that it contains language very similar to that of the WFEA definition referenced in La Crosse. As we pointed out previously, a "disability" is defined under the WOHA as a "physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment. . .." Wis. Stat. § 106.04(lm)(g) (emphasis added). Although the three parts of the WOHA definition are not separately enumerated as they are in the WFEA, the definitions still mirror each other. Most notably, the last part of the WOHA definition, the "regarded as" clause, serves a similar purpose as the "perceived" clause in the WFEA. In La Crosse, we held that the complainant does not have the burden of demonstrating the existence of an actual disability if a perceived disability can be proven. La Crosse, 139 Wis. 2d at 765. We think that similar reasoning applies to the WOHA.

¶ 45. In La Crosse, we held that to establish a "handicap" under the WFEA, the employee must show that (1) there is "a real or perceived impairment," and (2) the impairment is "such that it either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work." La Crosse, 139 Wis. 2d at 760-61. If the two questions are answered in the affirmative, the complainant could be considered "handicapped" within the meaning of the statute.

¶ 46. Using the parallel language of Wis. Stat. § 106.04(lm)(g), we think a similar test is appropriate to determine if a "disability" meets the WOHA definition. To establish a disability within the meaning of the statute, the complainant must show (1) that he or she has an actual impairment, a record of impairment, or is regarded as having an impairment; and (2) the impairment, whether real or perceived, is one that substantially limits one or more major life activities, or is regarded by the respondent to substantially limit one or more major life activities. If the complainant is able to prove both of these elements, the complainant will have demonstrated a disability under the WOHA. This also answers our original question: a perceived impairment may be sufficient to invoke the WOHA.

¶ 47. We recognize that, at first glance, this test seems to create an inconsistency. A person who is perceived as disabled, even if that person does not have any actual impairment, may be protected under the statute, while a person who has an actual impairment that does not rise to the level of a "disability" might not be protected. However, we cannot say that this interpretation is at odds with the intent of the WOHA.

¶ 48. As articulated by the legislature, the purpose of the WOHA is:

to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry.... [The WOHA] shall be deemed an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity and human rights of the people of this state.

Wis. Stat. § 106.04(1). The multi-part definition of "disability" satisfies this purpose in two ways. By protecting persons with actual disabilities or a record of disability from discrimination, the WOHA guarantees those persons equal access to housing. However, by supplying consequences for those who discriminate based on perceived disabilities as well as actual disabilities, the statute also helps combat incorrect assumptions about people with disabilities that are held by the public. In either situation, there is harm to the person who is discriminated against. As the U.S. Supreme Court stated in School Board of Nassau County v. Arline, "[Society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987). By providing a penalty for those who discriminate based on perceived disabilities, the legislature has chosen to respond to such myths and fears in pursuit of the goal of open housing.

¶ 49. Because the hearing examiner's conclusions were reasonable and kept with the intent of the statute, we hold that the hearing examiner correctly concluded that a perceived disability can qualify as a disability under the WOHA, even when no actual disability has been proven.

B

¶ 50. Having decided that a perceived disability falls within the WOHA's definition of "disability," we next turn to the question of whether the disability perceived by Kitten in this case rises to the level necessary to be covered by the statute. As we have already stated, in answering this question, we afford the decision of the hearing examiner great weight.

¶ 51. We begin by restating our test articulated above: To prove a disability under the WOHA, the complainant must show (1) that he or she has an actual impairment, a record of impairment, or is regarded as having an impairment; and (2) the impairment, whether real or perceived, substantially limits one or more major life activities, or is regarded by the respondent to substantially limit one or more major life activities.

¶ 52. Applying the first part of our test to the facts of the present case, we think that there is little question that Kitten perceived that Cenname had an impairment. Even though the actual disability was unproven at the hearing, there was evidence that Kitten was aware that Cenname had been diagnosed with bulimia. As a result, Kitten thought that Cenname necessarily suffered from severe depression, that Cenname was likely suicidal, and that Cenname was likely to return to the hospital for residential treatment. Kitten certainly perceived that Cenname had a lessening of normal bodily function.

¶ 53. Finding the first element met, we move to the second part of our test, and determine if the impairment perceived by Kitten was one that Kitten regarded as substantially limiting one or more of Cenname's major life activities. Under this part of the test, because we are assessing Kitten's perception of the disability, we must look at the subjective beliefs of the respondent and, taking them as true, determine if they would meet the objective standard for an actual disability. That is, if Kitten's perceptions about Cenname's impairment were true, we must determine if one or more of Cenname's major life activities would be limited. If the answer is yes, the second part of our test is met, and the perceived impairment is sufficient to qualify as a disability under the statute.

¶ 54. In this analysis, we are strongly persuaded by the-U.S. Supreme Court's discussion of disability in its recent holding in Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). In Toyota, the Court addressed the meaning of the term "disability" under the Americans with Disabilities Act (ADA) of 1990, whose definition of the term is virtually identical to that in the WOHA. Writing for a unanimous Court, Justice O'Connor defined "major life activities" as "those activities that are of central importance to daily life . . . including] such basic abilities as walking, seeing, and hearing." Toyota, 534 U.S. at 197. To be "substantially limited" in those activities, the individual must have a permanent or long-term impairment that prevents or severely restricts the individual from performing them. Id. at 198.

¶ 55. Adopting this definition, we conclude that Kitten's perceptions did rise to the level where, if taken as true, Cenname's major life activities would have been limited. Kitten thought that Cenname's eating disorder would impair Cenname's ability to function to the point where he would not be able to live on his own. Batten's perception was that Cenname would become severely depressed to the point of being suicidal, a situation that would undoubtedly limit Cenname's ability to perform day-to-day activities. Alternatively, Kitten thought that Cenname would have to be readmitted to inpatient residential treatment because he would not be able to carry out even basic daily tasks without assistance.

¶ 56. We give particular weight to Kitten's perception that Cenname might be rehospitalized. A patient in a residential, inpatient program, as opposed to an outpatient program, suggests that the person may be affected by a disorder to the point where he or she is substantially unable to function in daily life. See, e.g., Residential Eating Disorder Program, at http://www.rogersmemorial.org/Eating/eating.htm (last visited May 21, 2002).

¶ 57. In sum, we must agree with the hearing examiner that Kitten's perceptions of Cenname show that Kitten regarded Cenname as disabled. Consequently, applying the definition of "disability," we also agree with the examiner's conclusion that Cenname proved that he was "disabled" within the meaning of the WOHA.

C

¶ 58. Finally, because we hold that a disability was proven in this case, we must determine whether Kitten discriminated on the basis of this perceived disability. Again, we give great weight to the hearing examiner's reasoning and decision on this issue.

¶ 59. Under the WOHA, no one may "[s]egregate, separate, exclude or treat unequally a person in the terms, conditions or privileges of sale or rental of housing . .. because of a disability . . . ." Wis. Stat. § 106.04(2r)(b)2. We have already established the existence of a disability under the statute, so the question that remains is whether Kitten treated Cen-name unequally in the terms, conditions, or privileges of the rental of housing on account of the perceived disability.

¶ 60. We think that there is more than sufficient evidence in the record for the hearing examiner to have found that Kitten discriminated based on the perceived disability in this case. Kitten sought six months' advance rent from Cenname, as opposed to the normal one month's rent and a security deposit. By Kitten's own admission, seeking advance rent was not a standard practice. It is easy to conclude that Kitten exacted unequal lease terms from Cenname.

¶ 61. Still, Kitten insists that he had a legitimate reason to ask Cenname for the advance rent. Specifically, he asserts that he was wary of Cenname's sparse credit history, as well as Cenname's current unemployment. Kitten insists that his motives were economic, rather than based on the perceived disability.

¶ 62. Although we understand how these factors might have legitimately worried Kitten about renting to Cenname, we agree with the hearing examiner that the evidence still indicates that Kitten was primarily motivated by his perception of Cenname's disability rather than the economic factors. There is nothing in the record to show that Kitten brought his concerns about the credit report to Cenname's attention, and the only other significant change between Kitten's original terms and the higher terms was his perception of Cenname's condition. Kitten persisted in asking for the six months' advance rent despite a letter from Cenname's father attesting to Cenname's ability to pay, copies of Cenname's bank records, and a list of Cenname's financial references.

¶ 63. Kitten's perceptions led him first to contact his sister, a nurse, to ask about Cenname's eating disorder. Based on the information from his sister, Kitten then attempted to contact Cenname's doctor and Cenname's parents. Kitten even asked Cenname's own mother if Cenname was suicidal. Throughout his dealings with Cenname, Kitten repeatedly expressed concerns about the possibility of Cenname relapsing, being rehospitalized, or attempting suicide. The hearing examiner's conclusion that Kitten discriminated on the basis of disability was more than reasonable given the facts of this case, and we thus uphold the examiner's decision in that regard.

III

¶ 64. In conclusion, we hold that a perceived disability is sufficient to qualify as a "disability" under the WOHA. In this case, the hearing examiner correctly decided that Kitten perceived a disability, that the perceived disability rose to the level required under the statutory definition, and that Kitten proceeded to discriminate against Cenname based on that perceived disability by exacting more stringent lease terms from him. We therefore uphold the conclusions of the hearing examiner and affirm the decision of the court of appeals.

By the Court.-The decision of the court of appeals is affirmed.

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. The WOHA has since been renumbered as Wis. Stat. § 106.50 (1999-2000). See 1999 Wis. Act 82.

       Rogers Memorial Hospital is a specialized healthcare facility that provides inpatient and outpatient treatment for persons with certain behavioral disorders and mental illnesses. See http://www.rogersmemorial.org.

       This was primarily due to the fact that Dr. Holbrook did not testify at the hearing.

       Kitten asserted, both in his brief and at oral argument, that he was unable to find a medical definition for "bulimia nervosa," suggesting that this supported his argument that Cenname had not proven the existence of a disability. We note that we were able to find definitions in at least two leading medical references with little trouble. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) § 307.51, at 589-94 (4th ed., text rev., 2000) (listing "bulimia nervosa" as an eating disorder characterized by recurrent episodes of binge eating and recurrent inappropriate compensatory behavior to prevent weight gain such as self-induced vomiting; misuse of laxatives, diuretics, enemas, or other medications; fasting; or excessive exercise); Stedman's Medical Dictionary 218 (25th ed. 1990) (defining "bulimia nervosa" as a "chronic morbid disorder involving repeated and secretive episodic bouts of eating characterized by uncontrolled rapid ingestion of large quantities of food over a short period of time, followed by self-induced vomiting, purging, and anorexia; accompanied by feelings of guilt, depression, or self-disgust").

       The current version of the WFEA has changed the term "handicap" to "disability" but is otherwise identical to the statute passed in 1982. Wis. Stat. § 111.32(8) (1999-2000).

       At oral argument, concerns were raised about punishing housing discrimination where the discriminator incorrectly perceives that a normally benign condition significantly affects a person's major life activities. However, because the statute serves the dual purposes of protecting those who are actually disabled and combating incorrect public perceptions of disability, we cannot say for certain that the legislature did not intend such a result. Still, we do not reach that question here, as the facts of this case do not fall into that category.

       The ADA definition states, "The term 'disability' means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (1994).

       We note that Kitten also never asserted the defense outlined in § 106.04(5m)(d), which states in part:
      Nothing in this section requires that housing be made available to an individual whose tenancy would constitute a direct threat to the safety of other tenants ... if the risk of direct threat. . . cannot be eliminated or sufficiently reduced through reasonable accommodations.


source: Caselaw Access Project

author: PEtl CURIAM.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joeval M. Jones, Defendant-Appellant.
    Supreme Court

      No. 01-1155-CR.

      Decided May 24, 2002.

      2002 WI 53
    (Also reported in 645 N.W.2d 610.)
   PEtl CURIAM.

¶ 1. The state seeks review of the court of appeals' decision in this case dated and filed December 11, 2001. The defendant-appellant, Joeval M. Jones, also has filed a petition for cross-review pursuant to Wis. Stat. § (Rule) 809.62(7) asking this court to review the issue he raises if this court grants the state's petition for review.

¶ 2. On December 10, 2001, the day before the court of appeals' decision in this matter was dated and filed, Jones filed a notice of voluntary dismissal which stated that he was voluntarily dismissing his appeal in this case pursuant to Wis. Stat. § (Rule) 809.18.

¶ 3. After the petition for review and the petition for cross-review were filed, Jones filed a document in the court of appeals entitled "MOTION FOR ORDER DISMISSING JOEVAL M. JONES' APPEAL PURSUANT TO HIS NOTICE OF VOLUNTARY DISMISSAL FILED ON DECEMBER 10, 2001." In that motion Jones asserted that pursuant to State v. Lee, 197 Wis. 2d 959, 972, 542 N.W.2d 143 (1996), the appellate court was required to dismiss his appeal because his notice of voluntary dismissal had been filed the day before the court of appeals filed its decision in this case on December 11, 2001.

¶ 4. On February 28, 2002, the court of appeals rejected that motion stating the court had no jurisdiction to address it because under Wis. Stat. § (Rule) 809.62(5), the filing of the state's petition for review on January 10, 2002, operated to stay further proceedings in the court of appeals. Moreover, the court asserted that even if it had jurisdiction to address Jones' February 12 motion which sought to implement his December 10 notice of voluntary dismissal, the court said it would "elect to deny the motion . . . because our decision was issued to the parties prior to the receipt of the notice of voluntary dismissal."

¶ 5. On March 27, 2002, the court of appeals clarified that February 28 order and explained the time sequence in more detail. The court noted that under the practice and procedures of the clerk's office, appellate opinions are mailed to the parties the day before the opinions are dated and filed; consequently, Jones' December 10, 2001, voluntary dismissal notice was actually filed the same day the court of appeals' opinion in this matter had been mailed to the parties. Thus, according to the appellate court, as a practical matter, it could not have retrieved its opinion because it had been mailed by the time Jones' voluntary dismissal notice was filed and received by the panel that decided this appeal.

¶ 6. We conclude that this situation is controlled by State v. Lee, 197 Wis. 2d 959, 542 N.W.2d 143 (1996), where this court held that the court of appeals may not refuse to dismiss an appeal when an appellant notifies the court of voluntary dismissal of the appeal pursuant to Wis. Stat. § (Rule) 809.18 prior to the court of appeals' issuance of a decision on the merits of the appeal. Specifically, the Lee court wrote:

[w]e conclude that the court of appeals must dismiss an appeal when an appellant files a notice of voluntary dismissal pursuant to Wis. Stat. § (Rule) 809.18 before the court of appeals issues a decision on the appeal. Upon dismissal of an appeal, the appellant is returned to the same position occupied before the appeal was initiated.

197 Wis. 2d at 972.

¶ 7. Lee mandates that Jones' notice of voluntary dismissal, filed in this case the day before the court of appeals issued its opinion in this matter, must be given effect. Although the court of appeals' opinion might have been mailed to the parties on the same day as Jones filed his notice of voluntary dismissal, the appellate court's decision bore the file stamp indicating that it was "dated and filed December 11, 2001." That December 11 filing date stamped on the first page of the court of appeals' decision has significance because it starts the 30-day period in which a petition for review must be filed. See Wis. Stat. § (Rule) 808.09; see also St. John's Home v. Continental Cas. Co., 150 Wis. 2d 37, 42-43, 441 N.W.2d 219 (1988).

¶ 8. Although this court in Lee did not specifically define when a court of appeals' decision is "issued," in St. John's Home this court equated the date stamped on the court of appeals' decision or order as the date it was "issued and filed." Id. at 43. The fact that the clerk's office as a matter of convenience and courtesy mails appellate decisions to the parties the day before they are "dated and filed" does not mean that those decisions are to be deemed to have been "issued" as of that mailing date. Consistent with past practice and common understanding, we conclude that appellate court decisions are "issued" on the date they are filed and that date is identified by the date stamped on the first page of the decision. The notice of voluntary dismissal of the appeal filed by Jones on December 10, 2001, operated to automatically dismiss his appeal with no further action needed from the court of appeals. We conclude the court of appeals' decision dated December 11, 2001, must be withdrawn even though the panel of the appellate court deciding that appeal might not have been aware on that date of Jones' notice of voluntary dismissal. Accordingly,

¶ 9. IT IS ORDERED that we deny the petition for review and the petition for cross-review and remand this matter to the court of appeals with directions to withdraw its December 11, 2001, decision in this case thereby returning the defendant-appellant to the same position he occupied before he initiated his appeal from the circuit court's order denying his postconviction motion. Lee, 197 Wis. 2d at 972.

       Wisconsin Stat. § (Rule) 809.18 provides as follows:
      Rule (Voluntary Dismissal). An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the trial court. The dismissal of an appeal does not affect the status of a cross-appeal or the right of a respondent to file a cross-appeal.
      All statutory references are to the 1999-2000 version unless otherwise noted.

       Wisconsin Ct. App. IOP VI (5)(g) (Oct. 1, 2001) recognizes that court of appeals' opinions and decisions are released to the parties and the public and docketed and filed by the clerk's office on the same date.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Robert T. Malloy, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Robert T. Malloy, Respondent.
    Supreme Court

      No. 01-1480-D.

      Decided May 24, 2002.

    2002 WI 52
    (Also reported in 644 N.W.2d 663.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Robert T. Malloy, whose license to practice law is already suspended, receive a public reprimand for professional misconduct. In addition, the referee recommended that Attorney Malloy pay the costs of this proceeding.

¶ 2. We determine that a public reprimand is appropriate discipline for Attorney Malloy's misconduct. We also order Attorney Malloy to pay the costs of this proceeding.

¶ 3. The misconduct involved in this matter stems from Attorney Malloy's representation of a client in a divorce proceeding and consists of failing to act with reasonable diligence in representing a client and failing to surrender papers and property to which a former client is entitled.

¶ 4. Attorney Malloy was admitted to practice law in Wisconsin in 1992. He has a significant disciplinary history, which was summarized in a stipulation executed by Attorney Malloy and the Office of Lawyer Regulation (Board) as follows:

• In 1997, the Supreme Court suspended Attorney Malloy's license for three months, consecutive to an earlier one-year suspension (see bullet-point below), as discipline for his failure to act with reasonable diligence and promptness in representing clients, failing to return a client's unearned fee upon termination of representation, failing to comply promptly with reasonable requests for information and keep clients reasonably informed of the status of their legal matters he was handling, and failing to respond to the (former) Board of Attorneys Professional Responsibility (Board) in its investigation of misconduct allegations. Disciplinary Proceedings Against Malloy, 212 Wis. 2d 649, 568 N.W.2d 638 (1997).
• Earlier in 1997, the Supreme Court suspended Attorney Malloy's license for one year as discipline for his mishandling client funds and commingling for his own funds with them, failing to keep required trust account records, failing to respond to requests from clients for information concerning their matters, repeatedly failing to file or pursue legal matters for which he was retained, failing to refund unearned retainers promptly, and his repeated failure to cooperate with the Board in its investigation of client grievances. Disciplinary Proceedings Against Malloy, 209 Wis. 2d 264, 562 N.W.2d 147 (1997).
• In 1994, Attorney Malloy consented to a public reprimand from the Board as discipline for failing to appear at municipal court trials on behalf of three clients, failing to appear at a hearing on the court's order to show cause why he should not be held in contempt for his failure to appear at one of those trials, failing to maintain complete and accurate trust account records of clients funds, commingling his personal and business funds with client funds in his trust account, and continuing to practice law while administratively suspended for nonpayment of State Bar dues.

¶ 5. More recently, by order dated September 21, 2001, this court denied Attorney Malloy's petition for reinstatement of his license to practice law.

¶ 6. Turning to the matter presently before the court, the referee's factual findings are also derived from the stipulation executed by the parties. The client hired Attorney Malloy on August 10, 1993, to represent her in a divorce proceeding. The court granted the client's divorce on August 17, 1994. As the attorney for the moving party, Attorney Malloy was required to draft and file findings of fact, conclusions of law, and a written judgment within 30 days after the divorce judgment was granted. Wis. Stat. § 767.37(l)(a). He failed to do so. In fact, he never filed the documents.

¶ 7. On December 27, 1995, approximately 19 months after the court had granted the divorce, the circuit court sent Attorney Malloy a letter advising him that he had failed to file the documents and directing him to file them within 15 days. Attorney Malloy spoke to the judge's law clerk and indicated that he was having difficulty accomplishing this task. In any event, he neither filed the documents nor otherwise responded to the court's letter. The client also asked Attorney Malloy to file the necessary documents. Again he failed to do so. Because of Attorney Malloy's failure to file the documents, the client was unable to file a contempt motion against her ex-husband for failure to pay child support that had been ordered by the court at the hearing on August 17, 1994.

¶ 8. In 1997 the client consulted another lawyer about filing the necessary documents to finalize her divorce. The lawyer made several attempts to communicate with Attorney Malloy about obtaining the client's file but Attorney Malloy failed to return his phone calls and failed to give him the file. On May 12, 1997, the client's new lawyer wrote the trial court advising the court of the difficulty he was having obtaining the file. He copied Attorney Malloy on the letter. Attorney Malloy never provided either the lawyer or the client with her file.

¶ 9. In August 1997 Attorney Malloy advised the Board that he was sending the file to the client's new lawyer, but he failed to do so.

¶ 10. Ultimately, in order to finalize her divorce, the client was required to pay for a transcript of the August 17,1994, hearing. After receiving the transcript she filed pro se findings of fact, conclusions of law, and written judgment in February 1998 — three and a half years after the court had granted her divorce.

¶ 11. On June 1, 2001, the Board commenced this disciplinary proceeding with the filing of a complaint against Attorney Malloy. The complaint alleged that Attorney Malloy had engaged in two counts of professional misconduct.

¶ 12. First, the Board alleged that Attorney Mal-loy violated SCR 20:1.16(d) by failing to surrender papers and property to which a former client is entitled. Second, the Board alleged that Attorney Malloy violated SCR 20:1.3 by failing to act with reasonable diligence in representing a client. Attorney Malloy filed an answer generally denying the allegations.

¶ 13. On October 30, 2001, the parties filed a jointly executed stipulation agreeing to the facts set forth above and stating that it was further agreed that an appropriate level of discipline for Attorney Malloy's professional misconduct was imposition of a public reprimand and an order that Attorney Malloy pay the costs of the proceeding. The stipulation explicitly notes that it was not the result of a plea bargain and that it reflected neither a reduction of the charges nor a reduction of the level of discipline originally sought by the Board.

¶ 14. The referee issued written findings of fact and conclusions of law consistent with the terms of the stipulation, concluding, on the basis of the facts set forth on the stipulation, that Attorney Malloy violated SCR 20:1.3 and SCR 20:1.16(d). Attorney Malloy did not appeal the report and recommendation.

¶ 15. On February 21, 2002, this court issued an order to show cause, directing the Board and Attorney Malloy to explain why more severe discipline, and/or restitution to the client should not be imposed by the court. The parties responded to the satisfaction of the court, with the Board explaining that it did not discern uncompensated harm to the client with enough clarity to request restitution in this case.

¶ 16. Accordingly, we adopt the referee's findings of fact, conclusions of law, and recommendation with respect to Attorney Malloy. Attorney Malloy's misconduct with respect to his handling of this matter is a serious failing. As discipline for the professional misconduct we impose a public reprimand and order Attorney Malloy to pay the costs of this proceeding, as recommended by the referee.

¶ 17. IT IS ORDERED that Attorney Robert T. Malloy be publicly reprimanded for his professional misconduct.

¶ 18. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Robert T. Malloy shall pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $1266.74. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Robert T. Malloy to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from Board of Attorneys Professional Responsibility (BAPR) to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Most of the conduct giving rise to this complaint occurred prior to October 1, 2000. The investigating body will be referred to herein as the "Board." However, references to supreme court rules will be to those currently in effect unless specifically noted.

       SCR 20:1.16(d) provides that:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."


author: WEDEMEYER, EJ.

text:
    In re the Return of Property: Thomas D. Champeau, Petitioner-Respondent, v. City of Milwaukee, Respondent-Appellant.
    Court of Appeals

      No. 01-2060.

      Submitted on briefs February 5, 2002.

    Decided February 26, 2002.

    2002 WI App 79
    (Also reported in 642 N.W.2d 634.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Grant F. Langley, city attorney and Hazel Mosley, assistant city attorney, Milwaukee.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas K. Houck, of Gruber Law Offices, LLC, Milwaukee.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review filed.

   WEDEMEYER, EJ.

¶ 1. The City of Milwaukee appeals from an order granting Thomas D. Champeau's Wis. Stat. § 968.20 (1999-2000) petition requesting the return of three video slot machines, which were seized by police as illegal gambling devices. The City contends that the trial court erred when it ordered the return of Champeau's property because the trial court's findings that the machines were not "amusement devices" and that the "City has demonstrated ... that the machines . . . afforded players the opportunity to obtain something of value" compel the conclusion that the machines were gambling devices. Because the trial court erred, we reverse the order and remand with directions to the trial court to enter an order denying Champeau's petition for the return of the machines.

I. BACKGROUND

¶ 2. On January 8, 2000, City of Milwaukee Police Officer Daniel Wilcox and two detectives conducted a tavern premises check at the Rustic Inn located at 9909 West Appleton Avenue, Milwaukee, Wisconsin. As a result of the check, three video slot machines were confiscated as gambling devices.

¶ 3. On or about December 15, 2000, Thomas D. Champeau, the owner of the Rustic Inn, filed a petition for the return of property; i.e., the three video slot machines and the $175 which was inside the machines. The trial court held an evidentiary hearing on the petition on February 1, 2001. Officer Wilcox testified as an expert in gambling devices at the hearing. He stated that the video slot machines involved here: (1) required absolutely no skill to play and were purely a game of chance; (2) required money to operate — these machines accepted only dollar bills; and (3) had the ability to reward a player. Wilcox testified that the third factor was determined by looking inside the machines, where he discovered that the machines had an adjustable payout percentage, a changeable ratio of replays or points awarded. They recorded the amount of money put into the machines as well as the number of replays or points that had been subsequently knocked off or redeemed, and each machine had an external knock-off switch. He explained that a knock-off switch is a switch that makes it possible to redeem and then zero out accumulated points. In other words, the knock-off switch allows the player to redeem winnings and allows the operator of the machine to reset the machine and account for any amounts paid out. Wilcox testified that upon inspecting the machines, he noticed that the knock-off switches on these machines had been used. Accordingly, Wilcox concluded that these machines satisfied the statutory definition of illegal gambling devices.

¶ 4. Champeau then testified that he never used the knock-off switch, that he never gave players anything of value in exchange for accumulated credits on the machines, and that he placed a sign on each machine indicating that it was to be used for amusement purposes only. The trial court found that the machines at issue were not "amusement devices," because "these machines reward the player with redeemable free replays, and because they record the number of free replays awarded to the player and change the ratio of free replays awarded . . . The trial court also found that "the machines in this case afforded players the opportunity to obtain something of value by awarding redeemable free replays . . . Nevertheless, the trial court concluded that because there was no evidence that "the patrons received any payout for the redeemable credits either through the machines or the establishment," the machines were not gambling devices. In other words, the trial court determined that because no prizes had actually been given to the players in exchange for any accumulated credits, these machines did not satisfy the statutory definition of gambling devices. As a result, the trial court ordered the City to return the three video slot machines and the $175 to Champeau.

¶ 5. The City appeals from that order.

II. DISCUSSION

¶ 6. This case arises from a petition for the return of property pursuant to Wxs. Stat. § 968.20, which provides in pertinent part:

(1) Any person claiming the right to possession of property seized . .. may apply for its return .... The court shall. .. hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband ... returned.

(Emphasis added.) The trial court found that Cham-peau satisfied his burden of proving ownership of the property in question. Although the City disputed this issue in the trial court, it does not challenge the issue on appeal. Instead, the City contends that the property involved here is contraband.

¶ 7. The City has the burden of proving by the "greater weight of the credible evidence" that the property is contraband. Jones v. State, 226 Wis. 2d 565, 595, 594 N.W.2d 738 (1999). Contraband is defined by statute, among other things, as "gambling machines or other gambling devices." Wis. Stat. § 968.13(1). Thus, the focus of this case was whether the City proved by the greater weight of the credible evidence that the property seized from Champeau constituted gambling machines.

¶ 8. Wisconsin Stat. § 945.01(3), defines a "gambling machine" as:

(a) A gambling machine is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine.
(b) "Gambling machine" does not include ....
2. Any amusement device if it rewards the player exclusively with one or more nonredeemable free replays for achieving certain scores and does not change the ratio or record the number of the free replays so awarded.

As noted, the trial court found that the machines involved here both "afforded players the opportunity to obtain something of value," and were not "amusement devices." The trial court also found that the machines did in fact "change the ratio or record the number of the free replays so awarded." Wis. Stat. § 945.01(3)(b)2. The trial court, however, ruled that because there was no evidence that Champeau ever provided the patrons with prizes or a payout in exchange for the accumulated redeemable credits, it could not conclude that the machines were gambling devices.

¶ 9. This case involves the interpretation of a statute, which is a question of law that we review independently. Spence v. Cooke, 222 Wis. 2d 530, 536, 587 N.W.2d 904 (Ct. App. 1998). The trial court's findings of fact, however, will be reviewed under the clearly erroneous standard. Wis. Stat. § 805.17(2).

¶ 10. In reviewing the record, we conclude that the trial court's findings of fact are not clearly erroneous. The testimony of an expert witness, Officer Wilcox, supports the trial court's findings that these machines were not amusement devices, that they recorded the number of free replays and changed the ratio of free replays awarded, and that the machines afforded the player with the opportunity of obtaining something of value. Moreover, it is undisputed that the machines could only be operated if a patron inserted money, and that the machines' awards were based on chance.

¶ 11. The remaining question, therefore, becomes whether the statutory definition of "gambling machine" requires that a prize or payout is actually given to the patron who is playing the video slot machine. In reviewing the statute, we conclude that the language is clear. There is no requirement that patrons actually receive payouts or prizes in exchange for the redeemable credits. Rather, to fall under the definition of a gambling machine, Wis. Stat. § 945.01(3) requires that the contrivance: (1) afford the player an opportunity to obtain something of value; (2) in exchange for consideration; (3) the award of which is determined by chance, even if accompanied by some skill, regardless of whether the prize is paid automatically by the machine; and (4) cannot be purely an amusement device. These statutory requirements were satisfied here.

¶ 12. Officer Wilcox testified at length that the machines here were constructed to afford the player an opportunity to obtain something of value. The machines used "knock-off1 switches, which allowed the owner to reset the machines. The machines recorded the number of free replays, which could be "knocked off' or redeemed on the machines. The machines changed the ratio of free replays awarded depending on the wager. The machines had in/out meters to keep track of the money placed in the machines and the amount of credits that had been redeemed. Wilcox testified that these machines were identical to the electromechanical gambling machines used in casinos.

¶ 13. According to the statutory definition, proof of "payout" is not an element required in order to show that a machine is a gambling device. Thus, the trial court erred when it found that the video slot machines here could not be gambling machines without evidence that patrons actually collected a prize or payout. The trial court's findings and the record demonstrate that the City proved that the seized property satisfied the definition of "gambling machine" and, in turn, constituted contraband, which need not be returned.

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

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

       We also note that Champeau presented a variety of facts to this court regarding the alleged inappropriate actions of Officer Wilcox and the detectives who conducted the tavern check on January 8, 2000. The City responds that these issues are not pertinent to a Wis. Stat. § 968.20 petition and should not be considered in this appeal. We agree with the City. Whether the police followed the proper procedures or acted inappropriately during the tavern check is a matter that is not properly before this court.


author: VERGERONT, PJ.

text:
    Kenneth J. Murray, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.
    Court of Appeals

      No. 01-0106.

      Submitted on briefs October 5, 2001.

    Decided February 28, 2002.

    2002 WI App 62
    (Also reported in 642 N.W.2d 541.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John F. Fuchs and Marcia A. Snow of Fuchs Snow DeStefanis, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Rudolph M. Konrad, deputy city attorney, and Grant F. Langley, city attorney, Milwaukee.
    Before Vergeront, PJ., Dykman and Lundsten, JJ.
   VERGERONT, PJ.

¶ 1. In this action, Attorney Kenneth Murray seeks payment from the City of Milwaukee for legal services he provided to City of Milwaukee Police Department (MPD) officers in connection with citizen complaints filed against them. The trial court dismissed Murray's amended complaint, granting summary judgment in favor of the City of Milwaukee. We conclude the complaint does not state a claim for relief under Wis. Stat. § 895.35 (1999-2000) because that statute does not provide a cause of action for the payment of attorney fees. We also conclude that Murray's complaint does not state a claim for relief under theories of equitable estoppel, unjust enrichment, or quantum meruit. We therefore affirm.

BACKGROUND

¶ 2. The relevant allegations in the complaint are as follows. Murray has served as legal counsel for the Milwaukee Police Association for more than twenty years, and in that capacity he represented police officers in numerous legal proceedings. He successfully defended Officers John Balcerzak and Joseph Gabrish when a citizen complaint was filed against them in 1991, and the conclusion of that proceeding was reinstatement of both officers. It is the practice and policy of the City of Milwaukee, when a citizen complaint is brought against an MPD officer, to reimburse attorney fees and costs incurred by the officer in connection with the defense of the complaint, and, in Murray's experience, the City has always paid officers' attorney fees in these proceedings. In representing the two officers, Murray relied on this practice and policy.

¶ 3. According to the amended complaint, in 1995 Murray filed a claim with the City for reimbursement of attorney fees and costs incurred in representing the two officers in the amount of $318,448. At a meeting of the City of Milwaukee's Special Judiciary and Legislative Committee held approximately a month later, the city attorney proposed paying the claim, although in a lower amount. There was concern among some committee members about the public's perception that the officers would be "profiting," and they wanted to determine whether the check could be made payable to the officers' attorney only. Although the committee tabled the matter for a future meeting, Murray relied on the discussion at the meeting as an indication that he would eventually receive payment. However, he has not been paid by the City.

¶ 4. Murray's amended complaint asserted that Wis. Stat. § 895.35 authorized payment of his fees. The complaint also asserted causes of action for equitable estoppel, unjust enrichment, and quantum meruit.

¶ 5. The City moved to dismiss the amended complaint on the grounds that it did not state any claim for relief. Because both parties submitted affidavits in support of their positions, the trial court treated the motion as one for summary judgment. The trial court concluded that under Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 263 N.W.2d 218 (1978), and Rychnovsky v. Village of Fall River, 146 Wis. 2d 417, 431 N.W.2d 681 (Ct. App. 1988), Murray did not have a cause of action under Wxs. Stat. § 895.35. The court also ruled that the affidavits did not show an abuse of discretion by the City and, alternatively, that the remedy against the City for abusing its discretion or acting outside of its jurisdiction was to bring a writ of certio-rari, which Murray had not done. The court concluded that Murray did not have a claim based on equitable estoppel, both because equitable estoppel does not lie against a municipality for statements made by municipal officials and because there was no showing the City had taken any action to induce reliance by Murray. Finally, the court concluded that Murray did not have a claim based on unjust enrichment or quantum meruit because there was no showing that a benefit had been conferred upon the City.

DISCUSSION

¶ 6. On appeal Murray argues that the City erroneously exercised its discretion by failing to pay his attorney fees, that the City is equitably estopped from denying his claim for fees, and that he is entitled to payment of his fees under the theories of unjust enrichment and quantum meruit.

¶ 7. When we review a trial court's decision on summary judgment, we apply the same methodology as the trial court and our review is de novo. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980). A party is entitled to summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We begin the analysis by deciding whether the complaint states a claim for relief, because it is only if the complaint does so that we move on to examine the parties' factual submissions. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). In deciding whether a complaint states a claim for relief, we take as true all facts pleaded and all reasonable inferences favoring the plaintiff that may be derived from these facts. Id. at 317.

¶ 8. We first address Murray's claim that the City erroneously exercised its discretion under Wis. Stat. § 895.35 by failing to pay him for his representation of the two officers. Section 895.35 provides in part:

Expenses in actions against municipal and other officers. Whenever in any city. .. charges of any kind are filed or an action is brought against any officer thereof in the officer's official capacity ... and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated ... such city ... may pay all reasonable expenses which such officer necessarily expended by reason thereof.

(Emphasis added.) Murray concedes that because of the use of the word "may" in § 895.35, the City is not required to pay attorney fees. However, he argues that the discretion given the City is not absolute and must be exercised reasonably and equitably. Murray contends that the affidavits and other factual submissions he filed in opposition to the City's motion show that the City did not appropriately exercise its discretion because it routinely paid the attorney fees for officers who retained private counsel to successfully defend against charges stemming from a citizen complaint, and because the motivation for the committee's failure to act on his claim for fees was "political." We conclude it is unnecessary for us to consider the City's reasons for failing to pay the fee claim because, regardless of the reasons, the complaint does not state a claim for relief under § 895.35.

¶ 9. In Bablitch & Bablitch, 82 Wis. 2d at 584, the court affirmed an order dismissing the complaint of a sheriff and his lawyer seeking attorney fees. The complaint alleged that the sheriff had presented the claim for attorney fees to the county and the county refused payment. After addressing certain other statutes as potential sources of entitlement to payment of the attorney fees, the court considered Wis. Stat. § 895.35. The court concluded that the county was "empowered under sec. 895.35, Stats., to pay [the sheriffs] attorney's fees and costs if it so elects." Id. at 584. However, it also concluded that the statute "gives the county the option to refuse payment." Id. Because the county exercised its option, the sheriff had no cause of action against the county, and the demurrer was properly sustained by the trial court. Id.

¶ 10. We applied the holding in Bablitch & Bablitch in the later case, Rychnovsky. There we agreed with a municipality that the trial court had erred in ordering it to pay a police chiefs attorney fees, stating:

The trial court relied on sec. 895.35, Stats., for its award. However, the supreme coúrt has construed this statute to allow a municipality or county to pay an officer's attorney fees if it so elects. If the municipality refuses payment, the officer has no cause of action against it under sec. 895.35.

Rychnovsky, 146 Wis. 2d at 424 (citations omitted).

¶ 11. Since neither Murray nor the officers he represented have a cause of action against the City for attorney fees under Wis. Stat. § 895.35, it logically follows that they do not have a cause of action under § 895.35 even if the City unreasonably denies payment. Therefore, even if we take the allegations in the complaint as true — that the City had a practice and policy of reimbursing attorney fees and costs incurred by officers in connection with a defense against citizen complaints — neither Murray nor the officers have a viable claim for payment under § 895.35. Similarly, even if we were to accept as true Murray's allegation that the City failed to pay him because of political concerns, he is still not entitled to relief under § 895.35.

¶ 12. Murray's characterization of the City's failure to pay as an erroneous exercise of discretion does not change this result. In support of his argument that the City must exercise its discretion under Wis. Stat. § 895.35 reasonably and equitably, Murray cites three cases that have no bearing on § 895.35: Jefferson County v. Timmel, 261 Wis. 39, 62-63, 51 N.W.2d 518 (1952); Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 577, 364 N.W.2d 149 (1985); and Schmeling v. Phelps, 212 Wis. 2d 898, 917, 569 N.W.2d 784 (Ct. App. 1997). These cases concern the constitutional limitations on the exercise of the police power in the context of zoning. Murray does not develop any argument to explain the connection between a municipality's exercise of its police powers and a municipality's exercise of the authority given it under § 895.35, and we see none.

¶ 13. At bottom, Murray appears to be arguing that because Wis. Stat. § 895.35 uses the word "may," the City's exercise of its authority under this statute is subject to judicial review based on a standard of reasonableness and equity. However, nothing in the statute suggests that this is the case. We conclude that "may" in the statute simply means that a municipality has the authority to pay the attorney fees described in this section, if it so elects. Bablitch & Bablitch, 82 Wis. 2d at 584. In considering very similar language in Wis. Stat. § 62.09(7)© (1925) (now Wis. Stat. § 62.09(7)(e)), the supreme court observed:

To the point that the law does not guarantee that all public officers shall be treated alike, and that the common council may reimburse some and withhold such reimbursement from others, it is only necessary to say that the law does not confer a right to such reimbursement upon any public officer. The law simply confers upon common councils the same discretion which the legislature has always exercised. The law confers a discretionary power upon the council and does not grant a right to the officer. If such a power be misused, it calls for political and not legal remedies.

Curry v. City of Portage, 195 Wis. 35, 41, 217 N.W. 705 (1928).

¶ 14. We next consider Murray's claim that the City is equitably estopped from denying payment. He alleges in the amended complaint that he relied on the City's practice and policy of paying attorney fees in previous cases, and further relied on the actions taken at the April 1995 Special Judiciary and Legislative Committee meeting, and this reliance was to his detriment because he has not been paid and has therefore suffered damage.

¶ 15. In his brief, Murray describes his claim of equitable estoppel as "an equitable cause of action based upon his reliance on the City's historic practices." However, equitable estoppel (estoppel in pais) is a bar to the assertion of what would otherwise be a right; it does not of itself create a right. Utschig v. McClone, 16 Wis. 2d 506, 509, 114 N.W.2d 854 (1962). Thus, Murray must establish his right to recover attorney fees from the City on some basis other than equitable estoppel; equitable estoppel does not establish that right. Id,.'

¶ 16. Turning to the theory of unjust enrichment, we conclude the amended complaint does not state a claim for relief under this theory. The elements of an unjust enrichment claim are: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of the benefit under circumstances making it inequitable for the defendant to retain the benefit without payment of its value. Puttkammer v. Minth, 83 Wis. 2d 686, 688-89, 266 N.W.2d 361 (1978). Murray alleges in his complaint that by successfully defending the two officers, he conferred a specific benefit upon the City, the City had knowledge and appreciation of the fact of Murray conferring this benefit upon it, and the City's acceptance and retention of that benefit occurred under circumstances that would make it inequitable for the City to retain the benefit. Murray asserts that the City had an obligation to defend the officers against discharge proceedings stemming from a citizen complaint. However, he has cited no authority for that proposition. In response, the City asserts that it had no obligation to provide legal counsel to the officers, and Murray does not dispute that contention in his reply brief. We therefore take this as a concession. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). In the absence of an obligation by the City to provide counsel to the officers, Murray's legal representation of them did not confer a benefit on the City.

¶ 17. Finally, the amended complaint does not state a claim for relief under the theory of quantum meruit. Recovery in quantum meruit is allowed for services performed for another on the basis of a contract implied by law to pay the performer the reasonable value of the services. Ramsey v. Ellis, 168 Wis. 2d 779, 784, 484 N.W.2d 331 (1992). To establish an implied contract, the plaintiff must show that the defendant requested the services and that the plaintiff expected reasonable compensation. Id.

¶ 18. The amended complaint alleges that Murray rendered legal services to the officers "[pjursuant to the specific request of the two MPD officers . . . and based upon the City's habit, practice, and policy of reimbursing MPD officers' legal fees and costs in connection with the defense of a citizen complaint brought against them in the course of their official duties to the City." There is no allegation that the City requested the services; certainly the City's past practice of reimbursement is not the equivalent of a request by the City for Murray to represent the officers.

¶ 19. Because the amended complaint does not state a claim for relief under any of the legal theories Murray advances, we affirm the trial court's judgment dismissing the amended complaint.

By the Court. — Judgment affirmed.

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

       WISCONSIN Stat. § 802.06(2)(b) provides:
      (b) .... If on a motion asserting the defense described in par. (a) 6. to dismiss for failure of the pleading to state a claim upon which relief can be granted,. . . matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by s. 802.08.

       In particular, Murray contends that his submissions show that the committee was concerned with how the public might perceive a decision to pay the attorney fees for the two officers because the proceedings against them arose out of their investigation of a report concerning a young man who shortly thereafter became one of the victims of the serial killer, Jeffrey Dahmer. The City contends that its submissions show that the officers did not achieve a favorable result because they had pleaded guilty before the Milwaukee Board of Police & Fire Commissioners to certain rule violations and had served a sixty-day suspension. According to the City, its submissions also show that the City had already paid $850,000 to settle cases against the two officers and the City, and these reasons provide a rational basis for the decision not to pay the officers' attorney fees for Murray's representation. For the reasons we explain above, it is not necessary for us to consider either party's affidavits in order to resolve this appeal.

       The court in Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 584-85, 263 N.W.2d 218 (1978), observed that it did not know what reasons prompted the county board to decline payment of the claim, but, because the decision might have been prompted by an erroneous conclusion that the Wisconsin Constitution prohibited payment (this was the first issue the court addressed in the case), the court directed that the sheriff be permitted to refile his claim so that the county board could render a decision in light of the opinion. However, it is clear from the decision that if the county board were to deny the claim while understanding that it had statutory and constitutional authority to pay it, the sheriff would have no cause of action against the county for the failure to pay after refiling.

       The specific nature of the City's political reasons for failing to pay his attorney fees is not alleged in the amended complaint, but is more fully developed in Murray's factual submissions. However, even if the amended complaint were more specific on this point, or even if we considered Murray's submissions in opposition to the motion, our analysis and conclusion would be the same.

       The City contends that we should not address Murray's contention that the City erroneously exercised its discretion under Wis. Stat. § 895.35 because that was not alleged in the complaint, and Murray did not make that argument until his brief in opposition to the City's motion to dismiss. However, a complaint need not expressly identify a legal theory, but only the facts necessary to recover under that legal theory. See

        Northwestern Nat. Cas. Co. v. State Auto. & Cas. Underwriters, 35 Wis. 2d 237, 241, 151 N.W.2d 104 (1967); Wis. Stat. § 802.02(1). Because the City has had the opportunity, both in the trial court and in this court, to respond to Murray's legal theory that the City must exercise its discretion under § 895.35 in a reasonable and equitable manner, it is proper to decide the merits of this legal theory.

       Wisconsin Stat. § 62.09(7)(e) provides:
      (e) Whenever a city official in that official's official capacity is proceeded against or obliged to proceed before any court, board or
      commission, to defend or maintain his or her official position, or because of some act arising out of the performance of that official's official duties, and that official has prevailed in such proceeding, or the council has ordered the proceeding discontinued, the council may provide for payment to such official such sum as it sees fit, to reimburse the official for the expenses reasonably incurred for costs and attorney fees.

       We do not suggest that the manner in which a municipality exercises its authority under Wis. Stat. § 895.35 is not subject to the Wisconsin Constitution or the United States Constitution, but Murray has not alleged any constitutional violation. Therefore our analysis of the City's exercise of its authority under § 895.35 is confined solely to Murray's claim for relief under the statute.

       The requirements of equitable estoppel or estoppel in pais are: (1) action or inaction, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment. Milas v. Labor Ass'n of Wis., Inc., 214 Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997).

       Promissory estoppel, in contrast to equitable estoppel or estoppel in pais, does provide an affirmative basis for recovery. See Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 696, 133 N.W.2d 267 (1965). The elements of this cause of action are: "[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character . . . and which does induce such action ... if injustice can be avoided only by enforcement of the promise." Id. at 694. Murray has not argued that he is entitled to relief on the basis of promissory estoppel, and such an argument would not be successful. The amended complaint does not allege that the City promised to pay him, thereby inducing him to represent the officers. Even if we were to construe the amended complaint as alleging some implicit promise by the committee members at the April 1995 meeting to pay him the reduced amount, there is no allegation that the implicit promise induced action or inaction by Murray: he had already expended the time representing the officers.