author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Peter G. Tkacz, Defendant-Appellant.

    Court of Appeals

      No. 02-0192-CR.

      Submitted on briefs August 21, 2002.

      Decided October 16, 2002.

    2002 WI App 281
    (Also reported in 654 N.W.2d 37.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark S. Rosen of Rosen and Holzman of Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Weber, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 1-14-03.

   BROWN, J.

¶ 1. In this case, the prosecuting attorney previously represented Peter G. Tkacz in a civil forfeiture action before joining the district attorney's office. Tkacz sought to remove the prosecutor prior to trial claiming a conflict of interest. As did the trial court, we adopt the "substantial relationship" test when the issue is raised pretrial during criminal cases. Because the prior civil action and this criminal action were not substantially related, we affirm the trial court's denial of Tkacz's motion. We also address and reject Tkacz's two other issues: that Tkacz's trial counsel was ineffective for failing to impeach one of the State's witnesses with regard to the exact number of her prior criminal convictions and that the prosecutor's plea offer after reversal and remand which was less favorable than the plea offer before the first trial constitutes vindictive prosecution.

¶ 2. In April 1995, Tkacz was charged with one count of conspiracy to deliver heroin as a repeater and one count of first-degree reckless homicide for participating in a death by providing the victim with heroin. Prior to the first trial, prosecutor Douglass Jones offered Tkacz a plea bargain recommending a sentence of ten to fifteen years. Tkacz did not accept the plea offer. The case went to trial and a jury convicted Tkacz on both counts. Tkacz received a twenty-year prison sentence on the first-degree reckless homicide charge. Tkacz appealed and we reversed the first-degree reckless homicide conviction. State v. Tkacz, No. 97-0974, unpublished slip op. (Wis. Ct. App. June 3, 1998).

¶ 3. Prior to the second jury trial on the first-degree reckless homicide charge, Jones offered Tkacz a plea bargain recommending the twenty-year maximum sentence, which Tkacz did not accept. Also, before his second trial, Tkacz filed a motion seeking to disqualify Jones alleging an impermissible conflict of interest. While he was in private practice, Jones had represented Tkacz in a civil forfeiture matter in 1989. Tkacz testified at the pretrial motion hearing that during Jones's representation of him, he had a meeting with Jones that lasted one to two hours during which he disclosed confidential information to him concerning drug connections he had in Texas and Arkansas. In his motion, Tkacz claimed that Jones used this information at the bail hearing before his first trial to argue for substantial cash bail. At the bail hearing, Jones had argued:

I can inform the Court, in terms of risk of flight, Mr. Tkacz has on occasion had a prior address in Arkansas. He had been known to travel.... At this point in time, I think the risk of flight and the danger he presents to the community, and the seriousness of these charges, which carries 60 years worth of exposure, make Mr. Tkacz a good candidate for significant cash bail.

¶ 4. Jones testified at the motion hearing that he did not have any knowledge of Tkacz ever giving him any confidential information, he did not recollect having discussed the specifics of the case with Tkacz most likely because the need never arose, and he probably had some phone contact and minimal face-to-face contact with Tkacz. Jones also testified that prior to the bail hearing he had discussions with the police about Tkacz's out-of-state contacts and that they supplied him with information about Tkacz's connections with Arkansas. The trial court denied the motion and the case proceeded to trial.

¶ 5. At trial, Jill Wolff, who was present at the time of the homicide, testified as a witness for the State. She testified that she and Tkacz lived together at the time of the homicide and they shared drugs. She testified that at the time of the homicide, she was addicted to various narcotics and heroin and had done heroin that night. She testified that she and Tkacz knew the victim and had given her injections of heroin in the past.

¶ 6. Wolff further testified that she was in prison for her involvement in the death of the victim and that in exchange for her cooperation with the State, she received a favorable parole recommendation. On cross-examination, Wolff admitted that she had not told the truth about the circumstances surrounding the victim's death during a John Doe proceeding and in her statements to police. She also testified that she had tried to set up an alibi for herself, "I was trying to set up a lie at that time to cover up for the truth." Wolff had seven prior criminal convictions, two of which were the result of the homicide. Tkacz's counsel was aware of these convictions, but on cross-examination did not elicit from Wolff the number of her prior convictions.

¶ 7. After a three-day jury trial, the jury convicted Tkacz and the trial court sentenced him to twenty years in prison. Tkacz filed a motion for postconviction relief raising the three issues we address here. The trial court denied the motion and Tkacz appeals.

¶ 8. We first address Tkacz's claim that the trial court erred when it failed to disqualify Jones based on the alleged conflict of interest. Tkacz asserts that the trial court erred by using the "substantial relationship" test to determine the issue. Whether the trial court used the proper standard is a question of law that we review independently of the trial court. See Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶ 19, 251 Wis. 2d 68, 640 N.W.2d 788. However, the trial court's decision of whether attorney disqualification is required in a particular case is an exercise of discretion and the scope of our review is limited accordingly. Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). Generally, we will not find that the trial court's exercise of discretion was erroneous if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the trial court's decision. Jesse v. Danforth, 169 Wis. 2d 229, 245-46, 485 N.W.2d 63 (1992).

¶ 9. Our review of the trial court's decision requires us to address two questions. First, we must decide what the proper standard is for determining whether a conflict of interest exists when a prosecuting attorney has previously represented a defendant in a different case and the criminal defendant raises the conflict of interest issue prior to trial. Second, once we set forth the appropriate standard, we must then apply it to the facts of this case to determine whether the trial court erroneously exercised its discretion when it found that a conflict of interest did not exist.

¶ 10. There are no reported Wisconsin decisions setting the appropriate standard for analyzing conflict of interest claims where a criminal defendant raises the conflict of interest issue before trial. We begin our analysis with a discussion of recent cases that have dealt with conflict of interest problems in both the civil and criminal contexts.

¶ 11. In State v. Love, 227 Wis. 2d 60, 82, 594 N.W.2d 806 (1999), our supreme court set the standard for analyzing ineffective assistance of counsel claims based on an attorney's potential conflict of interest where the defendant raises the objection after trial. Love involved an assistant district attorney who had represented the State at the defendant's sentencing hearing and then a few months later represented the defendant in the same case at another sentencing hearing after revocation of his probation. Id. at 64-65. In concluding that no prohibited conflict existed, the court held that in a serial representation case where the defendant does not raise the objection until after trial, the defendant must show by clear and convincing evidence that the attorney had an actual conflict of interest. Id. at 82.

¶ 12. The court distinguished the case from a situation where the defendant raises the conflict of interest objection prior to trial: "[t]he standards to be applied in the Kaye hearing dealing with a potential or actual conflict of interest before trial, are different from the standards applied in a motion for relief after trial, because both the defendant and the court should be given the opportunity before trial to head off an actual conflict of interest before it happens." Love, 227 Wis. 2d at 73. Although the court made it clear that the "actual prejudice" standard would not apply if the defendant raised the issue before trial, the court did not specify what the standard would be in such a case.

¶ 13. In Berg v. Marine Trust Co., 141 Wis. 2d 878, 884-85, 416 N.W.2d 643 (Ct. App. 1987), the leading Wisconsin case dealing with the conflict of interest issue in the civil context, we adopted the "substantial relationship" test as the appropriate standard for analyzing conflict of interest claims. We set forth the substantial relationship test as follows: "where an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are 'substantially related.'" Id. at 885 (citation omitted). The two representations are substantially related "if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second." Id. at 886 (citation omitted). We reasoned that the test was appropriate, in part, because it was consistent with Wisconsin's professional responsibility rules governing an attorney's representation of a former client. Id. at 886.

¶ 14. While this court has not previously been faced with a serial representation claim where the defendant objects before trial, other courts have addressed the issue and, relying on their own professional responsibility rules, have concluded that the substantial relationship test should apply- to such cases. See State v. Tippecanoe County Court, 432 N.E.2d 1377, 1378-79 (Ind. 1982) (applying the substantial relationship test to disqualify an elected prosecuting attorney and an entire staff of deputy prosecutors, where the prosecuting attorney, who had administrative control over the entire staff, had formerly represented the accused in two prior cases, and the accused was charged with theft and being a habitual offender); State v. Barnett, 965 P.2d 323, 327-28 (N.M. Ct. App. 1998) (applying the state's professional responsibility rules to guide the court's decision to disqualify a prosecuting attorney who had counseled the defendant's plea in a prior substantially related case).

¶ 15. This brings us to the case at hand. We hold that the "substantial relationship" test is the proper standard for analyzing whether a conflict of interest exists in a criminal serial representation case where the defendant raises the issue prior to trial. The decision in Love makes it clear that it is the fact that a defendant raises a conflict of interest objection after trial that triggers the application of the "actual prejudice" standard and, thus, that standard is inapplicable to our case. The "substantial relationship" test embodies Wisconsin's current rules of professional responsibility and its application will ensure that the ensuing criminal trial will avoid any potential impropriety. Further, the test will present a lower standard for a defendant to meet than Love's actual prejudice standard and thus will give the defendant who raises the conflict of interest issue before trial the opportunity to "head off the conflict before it actually happens."

¶ 16. We now turn to the trial court's application of the "substantial relationship" test. Our review of the record persuades us that the trial court did not erroneously exercise its discretion when it concluded that Tkacz did not establish that a substantial relationship existed and therefore that there was no conflict of interest.

¶ 17. Tkacz alleges that a conflict of interest arose when Jones relied on information about Tkacz's drug connections in Texas and Arkansas that he had acquired during his 1989 representation of Tkacz to obtain a substantial cash bail. The trial court, however, made different findings of historical fact. We will uphold a trial court's findings of fact unless they are clearly erroneous; that is unless they are against the great weight and clear preponderance of the evidence. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). The trial court concluded that during Jones's limited representation of Tkacz no significant meetings took place, the two did not exchange any meaningful confidential information, and Jones received no information from Tkacz concerning any drug connections. The court also accepted Jones's account that the reference he made to Arkansas during the bail hearing was based upon information the police had provided him and that any information he may have had about Tkacz's connections to Texas and Arkansas was already independently known to the police. Finally, the court concluded that "[n]othing that Jones did learn or could have learned back in 1989 had a substantial relationship to the charges in this case." We see no reason to disturb these findings. Based upon the court's findings of historical fact, we conclude that the trial court's determination that no substantial relationship existed was firmly grounded in a reasonable basis, and furthermore, the court's legal conclusion that no conflict of interest existed was correct.

¶ 18. We now turn to Tkacz's second claim that his trial counsel was ineffective for failing to impeach the State's key witness, Wolff, with the number of her prior criminal convictions. The issue of whether a person has been deprived of the constitutional right to the effective assistance of counsel presents a mixed question of law and fact. State v. Trawitzki, 2001 WI 77, ¶ 19, 244 Wis. 2d 523, 628 N.W 2d 801. We will uphold the trial court's findings of fact unless they are clearly erroneous. Id. We review whether defense counsel's performance was deficient and prejudicial de novo. Id.

¶ 19. To prevail on a claim of ineffective assistance of counsel a defendant must establish both that the trial counsel's performance was deficient and that this performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To make this showing, the defendant must prove that a reasonable possibility exists that but for defense counsel's unprofessional errors, the result of the proceeding would have been different. Trawitzki, 2001 WI 77 at ¶ 40. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citations omitted). If the defendant fails to establish prejudice, we may dispense with the inquiry into whether counsel's performance was deficient. Id.

¶ 20. The facts in our case resemble the facts in Trawitzki and we begin our analysis of Tkacz's ineffective assistance of counsel claim with a brief discussion of that case. Trawitzki claimed that his trial counsel was ineffective for failing to impeach three of the State's witnesses with the specific number of prior convictions for each witness. Id. at ¶ 1. Trawitzki contended that the State's case against him rested primarily on the testimony of the three witnesses and that with the information about their convictions before it, the jury could have reasonably doubted the credibility of the witnesses and, consequently, Trawitzki's guilt. Id. at ¶ 42.

¶ 21. Our supreme court concluded that Trawitzki's counsel's failure to impeach had not prejudiced Trawitzki's defense. Id. at ¶ 46. According to the court, although the exact number of convictions might have incrementally weakened the credibility of the witnesses in the minds of the jurors, the decrease would not have been sufficient to establish a reasonable probability that the jury would have reached a different conclusion. Id. at ¶ 44. The court reasoned that the jury already had reason to question the credibility of the witnesses because all three testified that they were incarcerated for their roles in the events that led to the charges against Trawitzki and all three witnesses testified while wearing jail or prison clothes. Id.

¶ 22. As in Trawitzki, the jury in our case already had reason to question Wolffs credibility. The jury was aware that Wolff was in prison at the time of Tkacz's trial for her own involvement in the homicide and that she had received a favorable parole recommendation from the State in exchange for her testimony. The jury knew about her chronic use of heroin and other narcotics before and at the time of the homicide. The jury knew that Wolff had previously lied about the circumstances surrounding the homicide in the statements she made in a John Doe proceeding and in her statements to police and that she had tried to set up an alibi. Thus, the jury had before it a convicted felon, admitted perjurer and habitual drug user. The jury had an ample basis to discredit Wolffs testimony and it is unlikely that the exact number of convictions would have materially influenced the jury's credibility assessment.

¶ 23. Tkacz's attempts to distinguish Trawitzki fail. Tkacz contends that the supreme court reached the conclusion it did because most of the prior criminal convictions of the witnesses related to the incidents underlying Trawitzki's conviction and thus the additional convictions would essentially have been de mini-mus and cumulative. Tkacz points out that the evidence adduced at the postconviction hearing in Trawitzki indicated that one witness had three convictions all relating to the underlying crime; another witness had eight convictions, five of which related to the underlying crime; and the third witness had fourteen convictions, twelve of which apparently arose out of the underlying crime. See State v. Trawitzki, 2000 WI App 205, ¶ 21 n.3, 238 Wis. 2d 795, 618 N.W.2d 884, aff'd, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801. Tkacz argues that because Wolff had seven prior criminal convictions, including the two convictions for the underlying conduct the jury knew about, the cases are distinguishable.

¶ 24. We reject his argument. Nowhere in Traw-itzki is there even a hint that the supreme court would have held differently if the prior convictions of the three State's witnesses in that case had been unrelated to the underlying crime. Trawitzki was not about numbers or how the numbers came to be that way; it was about whether the jury had an adequate basis to question the credibility of the witnesses such that a failure to impeach with the exact number of convictions would likely not have affected the outcome of the case. See Trawit-zki, 2001 WI 77 at ¶ 44. While we do recognize that the number of convictions a witness has is relevant to the jury's assessment of a witness's credibility, we are not convinced that the result of Tkacz's trial would have been different had the jury known the exact number of Wolffs convictions. Our confidence in the outcome of the trial is not undermined by Tkacz's counsel's failure to impeach Wolff with her additional convictions.

¶ 25. Based upon the supreme court's decision in Trawitzki, we conclude that Tkacz has not satisfied his burden to prove that his trial counsel's failure to fully impeach Wolff prejudiced his defense. Because we conclude that Tkacz's defense was not prejudiced, we dispense with the inquiry as to whether this failure amounts to deficient performance.

¶ 26. We now turn to Tkacz's final claim that he was the victim of vindictive prosecution because Jones refused to reoffer a plea bargain recommending a ten-tó fifteen-year prison term after Tkacz's successful appeal and instead offered a plea bargain recommending the maximum twenty-year sentence Tkacz received after the first trial. The legal principles surrounding prosecutorial vindictiveness claims present questions of law that we review de novo. State v. Johnson, 2000 WI 12, ¶ 18, 232 Wis. 2d 679, 605 N.W.2d 846. We review the trial court's findings of fact regarding whether the defendant established actual vindictiveness under the clearly erroneous standard. Id.

¶ 27. The State appears to argue for a per se rule that vindictive prosecution jurisprudence does not apply to the plea bargaining process. While we do recognize that a defendant does not have a constitutional right to a plea bargain, Weatherford v. Bursey, 429 U.S. 545, 561 (1977), when a prosecutor chooses to engage in plea bargaining certain constitutional rights do come to the fore and thus circumstances do exist in which vindictive prosecution would apply. See Turner v. Tennessee, 940 F.2d 1000, 1001-02 (6th Cir. 1991) (holding that a presumption of vindictiveness arose where the defendant's attorney was deemed ineffective for failing to recommend that the defendant accept the prosecutor's plea bargain prior to the first trial and the prosecutor offered a much less favorable plea bargain before the defendant's retrial). Whether a per se rule, as championed by the State, is to be adopted would mark an important trend in the criminal law that should be decided by our supreme court. For our purposes, we can decide the issue in this case definitively even if we assume, without deciding, that the law of vindictive prosecution applies to less favorable plea offers made after an original conviction is reversed and remanded for a new trial.

¶ 28. In order to determine whether a prosecutor's decision to decline to reoffer a plea bargain after a defendant's successful appeal constitutes pros-ecutorial vindictiveness in violation of the defendant's due process rights, we must first decide whether a realistic likelihood of vindictiveness exists; if it does, then a rebuttable presumption of prosecutorial vindictiveness applies. Johnson, 2000 WI 12 at ¶ 17. The defendant bears the burden of establishing that under the circumstances of his or her case a realistic likelihood of vindictiveness exists. See id. at ¶ 33. If we conclude that the rebuttable presumption does not apply, then we must determine whether the defendant has demonstrated a claim of actual prosecutorial vindictiveness. Id. at ¶ 17.

¶ 29. The United States Supreme Court has set forth a prophylactic rule that the presumption of vindictiveness arises when a prosecutor files more serious charges against a defendant after the defendant appeals a conviction and wins a new trial. Id. at ¶ 32. A realistic likelihood of vindictiveness exists in such a case because the prosecutor has the ability to discourage appeals by "upping the ante" against the defendant with a more serious charge. See Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). This rule recognizes the basic principle that it is a violation of due process when the State retaliates against a person "for exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372 (1982). The Court has observed, however, that it would clearly be a different case if the State had established that the new charge was based on new events and could not have been brought in the original proceeding. See Blackledge, 417 U.S. at 29 n.7.

¶ 30. Even if the law is to be that a prosecutor's refusal to re-extend a plea offer can in appropriate circumstances give rise to a presumption of vindictiveness, this is not one of those circumstances. Tkacz does not argue that the prosecutor added new charges or sought a higher sentence than he received at the first trial in retaliation for his attacking his conviction, nor does he allege that any other constitutional rights were violated during the plea negotiations. Tkacz knowingly rejected or did not pursue the original plea bargain. Further, the trial court found that Jones offered a less favorable plea bargain prior to the second trial because he had additional evidence and a stronger case than he had going into the first trial. The presumption of vindictiveness is limited to cases in which a realistic likelihood of vindictiveness exists; "a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule." Goodwin, 457 U.S. at 384. We therefore hold that Tkacz did not establish a realistic likelihood of vindictiveness in this case and that a presumption of vindictiveness does not apply.

¶ 31. In order to establish actual vindictiveness, "there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights." Johnson, 2000 WI 12 at ¶ 47 (citation omitted). The trial court determined that Jones provided objective reasons for his decision to decline to reextend the original plea bargain, none of which suggested that Jones acted in order to punish Tkacz for exercising his right to appeal. At the postconviction motion hearing, Jones testified that he had a witness who had heard Tkacz make a jailhouse confession after the first trial and, Wolff, Tkacz's codefendant at the first trial, had agreed to testify against him. Additionally, Jones stated that he believed that Tkacz's involvement in another drug overdose death in Milwaukee would support his argument for the maximum twenty-year sentence. Based upon these facts, the trial court reasonably determined that Jones simply had a stronger case going into the second trial and that this is what motivated him to offer the less favorable plea bargain.

¶ 32. We are not persuaded by Tkacz's arguments that Jones's refusal to re-extend the original plea offer was actually motivated by a desire to retaliate against Tkacz for appealing his conviction. Tkacz cites no authority for his argument that the concessions Jones made to the witnesses who testified against him constitute vindictive prosecution nor does he offer any objective evidence to support his contention that Jones's prior representation of him affected Jones's decisions during plea negotiations. We agree with the trial court that Jones's conduct does not suggest actual vindictiveness. We therefore conclude the trial court's determination concerning Tkacz's failure to produce objective evidence establishing actual vindictiveness was not clearly erroneous.

By the Court. — Judgment and order affirmed.

       In State v. Kaye, 106 Wis. 2d 1, 315 N.W.2d 337 (1982), our supreme court directed the trial courts to address at the arraignment any potential conflict of interest issue presented by an attorney's dual representation of codefendants. Id. at 14. The court issued the directive "[t]o avoid such problems in the future." Id. State v. Kalk, 2000 WI App 62, ¶¶ 9-10, 234 Wis. 2d 98, 608 N.W.2d 428, reaffirmed this directive for cases involving serial representation.

       Supreme Court Rule 20:1.9 reads, in part, as follows:
      A lawyer who has formerly represented a client in a matter shall not:
      (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation ....

       Tkacz cites Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), for the proposition that the potential for misconduct creates an impropriety that requires disqualification of the prosecutor in a situation like the one presented in this case. Tkacz misapplies Young. In Young, the Court held that counsel for a party that is the beneficiary of a court order entered in a civil lawsuit may not be appointed by the trial court to prosecute a criminal contempt based on an alleged violation of that order. Id. at 790. The Court did not address the question of serial representation in a criminal case nor did it reject the proposition that the "substantial relationship" test would apply in such a case.

       Tkacz argues that the burden of proving prejudice is on the State. However, as the State correctly points out, in ineffective assistance of counsel claims, the burden of proving prejudice is on the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984); see also State v. Dyess, 124 Wis. 2d 525, 544 n.11, 370 N.W.2d 222 (1985).

       Although we do not address this inquiry in depth, we do note that the attorney's failure to impeach Wolff did not render his performance deficient for the same reasons that we conclude this failure was not prejudicial to Tkacz's defense. It would have been reasonable for Tkacz's trial counsel to conclude that in light of what the jury already knew about Wolff, the additional evidence of Wolffs convictions would have been cumulative and unnecessary to further undermine her credibility with the jury.


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    Daniel J. R. LaCount, by his general guardian, Daniel LaCount, Plaintiff, v. Rosemary A. Salkowski, Defendant-Respondent, State Farm Mutual Automobile Insurance Company, Defendant, General Casualty Company of Wisconsin and Courtney J. Langer, by her Guardian ad Litem, Terence J. Bouressa, Defendants-Third-Party Plaintiffs, Joseph W Langer, Defendant-Third-Party Plaintiff-Appellant,  v. Erin E. Penza, by her natural guardians, Don and Janet Penza, Molly J. Smith, by her natural guardians, Marvin and Julie Smith, Chelsea E. Sutton, by her natural guardians, Jan and Brian Sutton, Vanessa R. Van Laanen, by her natural guardians, Jody G. and Virginia Van Laanen, Estate of James M. Wingfield, by its personal representative Brenda K. Wingfield, Brenda K. Wingfield, Brett M. Wingfield and Abby L. Wingfield, by their natural guardian Brenda Wingfield, State Farm Insurance Companies, Horace Mann Insurance Company, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, XYZ Insurance Company and Mutual of Omaha Insurance Company, Third-Party Defendants. Brenda "Kathy" Wingfield, individually and as Personal Representative of the Estate of James M. Wingfield, deceased, Lauren Wingfield, Brett M. Wingfield and Abby L. Wingfield, minors, by their Guardian ad Litem, Gregory B. Conway, Plaintiffs, v. Courtney J. Langer, by her Guardian ad Litem, Joseph W Langer, and General Casualty Company of Wisconsin, Defendants.
    Court of Appeals

      No. 02-0630.

      Submitted on briefs September 30, 2002.

    Decided October 16, 2002.

    2002 WI App 287
    (Also reported in 654 N.W.2d 295.)

      On behalf of the defendant-third-party-plaintiff-appellant, the cause was submitted on the briefs of Terence J. Bouressa and Bouressa & Patteson, S.C. of Green Bay.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Matthew E. Yde, Douglas R. Ross and Strasser & Yde, S.C. of Wausau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review filed.

   HOOVER, PJ.

¶ 1. Joseph Langer appeals a summary judgment dismissing his ex-wife, Rosemary Salkowski, as a defendant in this case. Langer argues that because he and Salkowski shared physical custody of their daughter, Courtney Langer, and because Salkowski had actual physical custody on the day Courtney was involved in a traffic accident, Salkowski must share in the liability imputed to parents of minor drivers under Wis. Stat. § 343.l5(2)(b). We reject Langer's interpretation of the statute and affirm the judgment.

Facts

¶ 2. The facts of this case involve a myriad of parties, and the case has not yet been adjudicated on its merits in the trial court. However, the few facts relevant to this appeal are largely undisputed and do not go to the merits of the underlying civil suits.

¶ 3. Langer and Salkowski divorced in 1992 and were awarded joint legal custody of Courtney. The parents live apart and alternate Courtney's physical placement weekly. In 1999, Courtney obtained a Wisconsin driver's license with Langer as the sponsor, pursuant to Wis. Stat. § 343.15. On October 15, 1999, between 3 p.m. and 5 p.m., Courtney's placement transferred from Langer to Salkowski. Later that evening, Courtney was involved in an automobile accident with a minivan. The driver of the minivan died, and a passenger in Courtney's car was rendered a partial paraplegic. There were also other injuries to passengers of the minivan.

¶ 4. In February 2000, the passenger in Courtney's car brought suit against Courtney, Langer and Langer's insurer. In August 2000, the family of the minivan's driver brought suit against the same parties. The cases were consolidated in November 2000. In January 2001, the first plaintiff filed an amended complaint naming Salkowski and her insurer as additional defendants.

¶ 5. Both Salkowski and the plaintiffs moved for summary judgment regarding her liability under Wis. Stat. § 343.15. Judgment was granted in favor of Salkowski. Pursuant to the judgment, the court dismissed all claims against Salkowski on the merits and with prejudice. The plaintiffs moved for reconsideration, but the court denied the request. Langer now appeals Salkowski's dismissal.

Standards of Review

¶ 6. In reviewing summary judgments, we employ the same methodology as the circuit courts, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987), and we review the application of legal principles to undisputed facts without deference to the circuit court. See Radlein v. Industrial Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). Summary judgment is appropriate only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." See Wis. Stat. § 802.08(2).

¶ 7. We interpret statutes without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We look to the language of the statute and attempt to interpret it based on the plain meaning of its text. State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). If reasonable persons could disagree as to its meaning, the statute is ambiguous. Id. Only if a statute is ambiguous may we examine other construction aides. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). The application of a statute to undisputed facts is a question of law that we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).

Discussion

¶ 8. Wisconsin Stat. § 343.15(2)(b) provides:

Any negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the parents where both have custody and either parent signed as sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person's license. The parents or the adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent or wilful misconduct. (Emphasis added.)

At issue here is the meaning of the phrase "where both have custody" and specifically what type of custody both must have. "Custody," standing alone, could mean legal custody or physical custody and, as such, the statute appears ambiguous.

¶ 9. Langer and Salkowski can share only one of two .types of legal custody over Courtney. First, there is the legal custody that vested as married parents of a child. This natural, immediate custody necessarily stems from parents' constitutionally protected rights in both the Wisconsin and United States Constitutions. See Sallie T. v. Milwaukee County DHHS, 219 Wis. 2d 296, 309, 581 N.W.2d 182 (1998) (biological parents retain a constitutional right to raise their child); State v. Aimee M., 194 Wis. 2d 282, 300, 533 N.W.2d 812 (1995) (a natural parent has a protected right under state and federal law to rear his or her children free from government intervention); Cox v. Williams, 177 Wis. 2d 433, 440, 502 N.W.2d 128 (1993) (the custody of children resides first in the parents); Barstad v. Frazier, 118 Wis. 2d 549, 568, 348 N.W.2d 479 (1984) (a parent's claim to custody is an independent interest from the child's).

¶ 10. The second type of legal custody Langer and Salkowski could share — the custody arrangement they currently have — is joint legal custody pursuant to a court order following divorce and governed by Wis. Stat ch. 767. In this situation, legal custody is "the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order." Wis. Stat. § 767.001(2)(a). Court-ordered custody arrangements necessarily alter the natural custodial relationships that existed prior to divorce. Joint legal custody is the situation where neither parent's custody rights are superior to the other's. Wis. Stat. § 767.001(ls); cf. Wis. Stat. § 767.001(6) (defining sole legal custody).

¶ 11. Wisconsin Stat. § 343.15(2)(a), however, specifically excludes "joint legal custody" as defined in Wis. Stat. § 767.001(ls) as the type of custody "both" Langer and Salkowski must have over Courtney under Wis. Stat. § 343.15(2)(b). Therefore, "custody" as used in § 343.15(2)(b) and applied here can only mean the natural legal custody that two married parents share. Because Langer and Salkowski do not share the correct type of custody over Courtney, Salkowski was properly dismissed from this case.

¶ 12. Langer argues, however, that "custody" in Wis. Stat. § 343.15(2)(b) could also mean actual physical custody as found in Wis. Stat. § 895.035(l)(a). Langer suggests this is sufficient to impute liability to Salkowski because the parent with custody on the day of the accident was the one making decisions about the child's activities, specifically whether the child could drive. Following Beerbohm v. State Farm Mut. Auto. Ins. Co., 2000 WI App 105, 235 Wis. 2d 182, 612 N.W.2d 338, Langer asserts this physical custody need not be exercised by both parents simultaneously for "both [to] have custody" under § 343.15(2)(b).

¶ 13. Construing "custody" as used in Wis. Stat. § 343.15(2)(b) to mean "physical custody" creates an unreasonable result, a circumstance this court will avoid. See Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395 (1999). A divorced parent who purposefully declined to sponsor a child, perhaps because of concerns over the child's sense of responsibility or lack of maturity, could nevertheless be liable. Moreover, if physical custody were the touchstone for imputing liability to a non-sponsoring divorced parent, then liability would almost always be a matter of fortuity— whether the non-sponsoring parent was "lucky" enough for his or her child to be in an accident when that parent did not have physical custody. Further, the greater the placement time a court awards to the non-sponsoring parent, the more likely it would be that the parent would end up with imputed liability. We do not think the legislature intended that liability be based on chance. Again, as material here, liability under Wis. Stat. § 343.15(2)(b) is imputed to both parents only where both have custody and one is a sponsor.

¶ 14. It is manifestly impossible for divorced parents to share physical custody when the child is placed at any given time with only one parent. Langer nevertheless suggests Beerbohm allows parents to share physical custody even if the custody is not simultaneous. Beerbohm, however, offers no guidance. In that case, the main issue was whether a motorcycle was covered under a car insurance policy. There is no analysis of what "custody" under Wis. Stat. § 343.15(2)(b). means. The court merely stated that because both of the minor's parents had custody and one signed as a sponsor, liability was imputed to both. Beerbohm, 2000 WI App 105 at ¶ 21.

¶ 15. Contrary to what Langer and certain legal digests say about Beerbohm, there is no statement by the court that the parents were divorced, only that they were living apart. Absent some indication the parents had anything but the natural parental custodial relationship to their child, we decline to apply Beerbohm to this case, and we limit Beerbohm's application of Wis. Stat. § 343.15(2)(b) to its facts.

¶ 16. Langer also argues that we would defeat the legislative intent if we determine liability cannot be imputed to Salkowski. The legislature determined that juvenile drivers pose an increased risk to the public and generally lack adequate financial resources to cover any potential damages they may cause. Reyes v. Greatway Ins. Co., 220 Wis. 2d 285, 294-95, 582 N.W.2d 480 (Ct. App. 1998). Therefore, the legislature deemed the best course of action was to allow juveniles to drive only if an adult sponsor agreed to accept responsibility for the increased risk to the public. Id. This purpose, however, is not frustrated by excluding Salkowski from liability, because Langer is the sponsor who agreed to accept the risk.

¶ 17. Langer implies that imputing liability to the second parent advances legislative intent by increasing the pool of funds available to cover damages. However, when a non-parent signs as the sponsor on a minor's ligense application, there is no second person to whom liability may be imputed. Only the single sponsor is liable for damages caused by the juvenile. Additionally, our supreme court has held that evidence of wealth of the parents or sponsor is irrelevant under Wis. Stat. § 343.15. See Franz v. Brennan, 150 Wis. 2d 1, 9, 440 N.W.2d 562 (1989). Therefore, we reject the contention that liability must be imputed to a second person in order to increase the wealth available to pay for damages.

¶ 18. Langer further suggests that because both parents exercise some degree of control over the minor's driving, both should be responsible for the consequences when the child is in an accident. See Mikaelian v. Woyak, 121 Wis. 2d 581, 594-95, 360 N.W.2d 706 (Ct. App. 1984). However, in the case where parents do not share the appropriate type of custody, it is a single parent who has allowed the child the privilege of obtaining an operator's license and it is that single parent who has accepted responsibility. To impute liability to a non-sponsoring parent who happened to be in physical charge of the child that day takes us back to the argument on physical custody, which we have already rejected.

By the Court. — Judgment affirmed.

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

       One party suggests it was Courtney's car that struck the van; the other party suggests the van struck Courtney's car. This is a fact for the trial court to resolve; for purposes of this appeal, it is irrelevant which statement is correct.

       The record indicates only that the appeal is taken from the summary judgment, not the order denying the motion to reconsider.

       Part of the ambiguity arises because Wis. Stat. ch. 767, under which legal custody is conferred upon parents at divorce, speaks in terms of "physical placement" rather than physical custody. See Wis. Stat. § 767.001(5). However, other sections of the statutes refer to "physical custody" of children. See, e.g., Wis. Stat. § 895.035(1)(a) infra note 7. Thus, while ch. 767 is not used to confer physical custody rights to parents (who are granted legal custody and physical placement under the chapter), it appears that in some situations "custody" refers to physical custody without necessarily implicating any form of legal custody.

       Generally, a child must be born to or adopted by a married couple or the child's parents must marry after its birth — natural legal custody of a nonmarital child vests only in the mother. Wis. Stat. § 48.435.

       Wisconsin Stat. § 343.15(2) (a) provides: "In this subsection, 'custody' does not mean joint legal custody as defined in s. 767.001(ls)."

       Wisconsin Stat. § 895.035 is the general statute regarding parental liability for minor children. Wisconsin Stat. § 895.035(l)(a) provides in part: "In this section, 'custody' means either legal custody of a child under a court order under s. 767.23 or 767.24, custody of a child under a stipulation under s. 767.10 or actual physical custody of a child."


text:
    In the Matter of Disciplinary Proceedings Against James G. Wiard, Attorney at Law: Office of Lawyer Regulation, Complainant, v. James G. Wiard, Respondent.
    Supreme Court

      No. 02-3268-D.

      Decided February 19, 2003.

    2003 WI 5
    (Also reported in 657 N.W.2d 64.)
   The Court entered the following order on this date:

The Office of Lawyer Regulation and Attorney James G. Wiard have stipulated, pursuant to SCR 22.12, for reciprocal discipline under SCR 22.22.

Attorney Wiard has been licensed to practice law in Illinois since 1978 and was admitted in Wisconsin in 1987. His Wisconsin license was suspended in 1998 for noncompliance with CLE reporting requirements and remains suspended at present.

Pursuant to a March 26, 2002 order of the Illinois Supreme Court, Attorney Wiard's license in that state has been suspended for two years. He was found to have violated Illinois Rule of Professional Conduct (IRPC) 1.4 — failure to keep a client reasonably informed about the status of a matter; IRPC 1.15(a) — failure to deposit client funds in a separate and identifiable trust account; IRPC 8.4(a)4 — conduct involving dishonesty, fraud, deceit or misrepresentation; IRPC 8.4(a)5 — engaging in conduct that is prejudicial to the administration of justice; and, Illinois Supreme Court Rule 771— engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession in disrepute.

These violations arose out of an incident that began in 1994 when Attorney Wiard prepared a trust and property power of attorney for a client naming himself as successor trustee and agent should the client die or eventually be unable to act as trustee or should the designated agent be unable to act. In 1997, without notifying the client or the property power of attorney, he requested that a bank close two of the client's accounts and issue the proceeds to him as successor trustee for the trust. He received almost $11,000 from the bank and used virtually all of it for his own personal purposes. He later misrepresented to the client what had occurred.

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney Wiard contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that the license of Attorney James G. Wiard to practice law in the state of Wisconsin be suspended for two years from the date of this order.

IT IS FURTHER ORDERED that this suspension does not affect the existing 1998 suspension for noncompliance with CLE reporting requirements which would also have to be satisfied in order for his license to practice law in Wisconsin to be reinstated.

IT IS FURTHER ORDERED that he shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.


text:
    In the Matter of Disciplinary Proceedings Against Bruce A. Bode, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Bruce A. Bode, Respondent.
    Supreme Court

      No. 02-3244-D.

      Decided February 21, 2003.

    2003 WI 6
    (Also reported in 657 N.W.2d 65.)
   The Court entered the following order on this date:

On December 5, 2002, the Office of Lawyer Regulation filed a disciplinary complaint against Attorney Bruce A. Bode asking this court to impose reciprocal discipline identical to that imposed on Attorney Bode by the Illinois Supreme Court. That court suspended Attorney Bode's Illinois law license for one year, effective September 20, 2001. On December 10, 2002, this court issued an order to show cause directing Attorney Bode to show cause in writing by December 30, 2002 why the imposition of the identical discipline imposed by the Illinois Supreme Court would be unwarranted. Attorney Bode failed to respond to the order to show cause.

Attorney Bode was admitted to practice law in Wisconsin in 1990 and he became licensed to practice law in Illinois that same year. In 1992 Attorney Bode's Wisconsin license was suspended for his failure to pay dues to the Wisconsin State Bar. In 1993 his license was suspended for noncompliance with continuing legal education (CLE) requirements. His Wisconsin license remains suspended.

The one year suspension in Illinois resulted from misconduct involving ten separate clients and involved a pattern of failing to communicate with clients concerning the status of their cases, failing to timely complete legal matters, and failing to respond to inquiries from the Illinois Administrator of the Attorney Registration and Disciplinary Commission.

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney Bode contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that the license of Bruce A. Bode to practice law in the state of Wisconsin be suspended for one year, effective the date of this order;

IT IS FURTHER ORDERED that this suspension does not affect the existing suspensions for failure to pay dues to the Wisconsin State Bar or failure to comply with CLE requirements which would also have to be satisfied in order for Attorney Bode's license to practice law in Wisconsin to be reinstated;

IT IS FURTHER ORDERED that Attorney Bode shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher A. Kaczynski, Defendant-Appellants.

    Court of Appeals

      No. 02-0025-CR.

      Submitted on briefs October 1, 2002.

    Decided October 22, 2002.

    2002 WI App 276
    (Also reported in 654 N.W.2d 300.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eugene L. Kaluzny of Kaluzny Law Offices, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review denied 2-19-03.

   FINE, J.

¶ 1. Christopher A. Kaczynski appeals from a judgment entered on his guilty plea convicting him of robbery, and from the trial court's order denying his motion for postconviction relief. He asserts two claims of alleged trial-court error. First, he contends that the trial court unlawfully punished him because he refused to reveal the identity of his accomplice. Second, he argues that the trial court's sentence was unduly harsh. We affirm.

I.

¶ 2. In November of 1995, Kaczynski and an accomplice robbed a liquor store in West Allis. The accomplice was armed and pistol whipped the store's owner. Kaczynski took the money. Both Kaczynski and his armed accomplice were masked. In late 2000, the State charged Kaczynski with masked and armed robbery by threat of force as party to a crime, see Wis. Stat. §§ 943.32(l)(b) & (2) (1995-96), 939.641 (1995-96), and 939.05 (1995-96). The maximum possible imprisonment was forty-five years. See Wis. Stat. §§ 939.50(3)(b) (1995-96) and 939.641 (1995-96). The case was plea-bargained, and the trial court permitted the State to amend the charge to robbery, see Wis. Stat. § 943.32(1) (1995-96), with a maximum possible imprisonment of ten years, see 939.50(3)(c) (1995-96). The State explained to the trial court at the plea hearing that the case was charged late because the State crime laboratory had initially erroneously failed to match Kaczynski's fingerprints with those found at the crime scene. The State also explained to the trial court that under the plea bargain it was going to recommend that Kaczynski be sentenced to prison for between seven and eight years.

¶ 3. Kaczynski's accomplice was never identified, and at the plea hearing the trial court asked Kaczynski to reveal who he was. Kaczynski refused, claiming that he was afraid:

Your Honor, the reason that I don't want to indulge [sic] the information who this person is is because ultimately what I'm doing here is pleading guilty and allowing you to sentence me. This person is in prison, and this person I will have to do time with; and this person has friends in prison. And I'm fearful that if I were to, at this point in time, give you that information, I'd be labeled a snitch going into the prison system. That would he something I'd have to try to survive for the next five to ten years, depending on your sentence.
That is my only reason for not giving you this information. I can tell you that this person is never going to be out in society never again. He has absolutely nothing to lose by taking me out from there if I'm a snitch.

Earlier in the plea hearing, when Kaczynski's lawyer explained essentially the same fears, the trial court opined that it doubted their veracity and validity:

My concern here is that it's easy for Mr. Kaczynski or anyone to come in and tell me that they might be threatened by their co-actor and then protect the identity of the co-actor. And while they might be fearful of some realistic retaliation, they might also be loyal to the death and lying to me about the identity of the co-actor.
So there are two ways to look at it. Mr. Kaczynski tells me he's worried about retaliation, but he might also be a loyal soldier who is not about to turn on his friend. So I have to decide whether he's accepting responsibility for his crime at sentencing.
And it might be that the co-actor is living the life of Riley right now over in a high-rise condominium on Prospect Avenue confident that his friend in crime isn't going to turn on him.

After this and related colloquy, the trial court told Kaczynski that unless he revealed the accomplice's identity at the sentencing hearing it "would impose additional punishment beyond what I would impose for his participation, given all the other circumstances of his case."

¶ 4. At the sentencing hearing, the trial court reiterated its view that helping law enforcement to bring accomplices to book was an important sentencing factor. Relying on Roberts v. United States, 445 U.S. 552 (1980), the trial court noted that when a defendant does not cooperate, he or she "reject[s] an obligation of community life that should be recognized before rehabilitation can begin," and opined that "if Mr. Kaczynski is unable to disclose the identity of his coactor who by all accounts is a mean, vicious person, that Mr. Kaczyn-ski himself continues to be at war with his society."

¶ 5. According to Kaczynski's presentence report, he had a lengthy criminal record, including as a juvenile:

• first degree sexual assault,
• burglary,
• theft as party to a crime,

and including as an adult:

• forgery,
• resisting or obstructing an officer,
• theft,
• two separate instances of receiving stolen property,
• burglary as party to a crime, and
• battery.

Additionally, at the time of sentencing, Kaczynski had a pending battery-by-a-prisoner charge and also an armed-robbery-with-threat-of-force case in Washington County. In connection with the armed-robbery charge, Kaczynski told the presentence-report writer that he merely had innocently picked up a friend who, unbeknownst to Kaczynski, had just robbed a bank.

¶ 6. During his allocution, Kaczynski told the trial court that "what I did in November of'95 is wrong," and that he had allowed his "drug addiction to have mastery of my good judgment." He said that he was "recovering from my drug addiction" and had "spent the last few years of my life toward becoming a contributing member of society." He asked the trial court for "mercy and forgiveness" and hoped that the trial court would "recognized my remorse, as well as my sincere desire to change and become a productive member of society in the future." He refused, however, to name his accomplice, and discounted the trial court's earlier assurance that the prison authorities could protect him.

¶ 7.. The trial court sentenced Kaczynski to the maximum period of incarceration for the reduced charge, ten years, which, as noted, was less than one-quarter of Kaczynski's exposure on the charge that most accurately described his conduct: masked armed robbery as party to a crime. The following are the pertinent excerpts from the trial court's sentencing rationale:

The thing that jumps out at me looking at your criminal record is that after you were released from custody in late 1995 you participated in this robbery at the liquor store in West Allis on November 22nd, 1995, and then you were arrested on two other armed and masked robberies which occurred on December 8th, 1995, December 13th, 1995. Those charges that are reflected on Page 7 of the presentence report were dismissed. I'm entitled to consider conduct even if it was dismissed.
In the year 2000, you're now facing a charge of participating in the armed robbery of the savings institution in Washington County.

The trial court credited Kaczynski's intelligence, but noted that he has a "history of violence and armed robberies," pointing out that Kaczynski's sexual-assault conviction as a juvenile was "against your six year-old brother when you were twelve" and that that was a "forebearer [sic] of things to come for you as an adult." After recounting the horrific ordeal suffered by the liquor-store armed-robbery victims, the trial court continued: "Your robbery of the liquor store was an intentional act motivated by greed and accomplished by violence and use of a firearm so that you could acquire money to feed your cocaine habit."

¶ 8. The trial court also reflected that Kaczynski's "history of armed robberies indicates ... that there is a need to protect the community from future aggressive acts," rejecting Kaczynski's suggestion that he had "turned a new life since 1996," by not using drugs. The trial court then turned to Kaczynski's refusal to name his accomplice:

I am going to increase the punishment that I would have otherwise ordered because of my conclusion that you are at war with your society in your refusal to name your accomplice in this robbery. I'm relying on the rational [sic] of Roberts against United States from 1980, from [sic] my decision, to increase the punishment.

II.

A. Kaczynski's refusal to name his accomplice.

¶ 9. It has long been the law in Wisconsin that, unless a defendant's rights against self-incrimination are implicated (and Kaczynski makes no claim that they are), it is "entirely proper" for a trial court "to consider on sentencing, the defendant's cooperativeness as manifested by his refusal to name his accomplices." Holmes v. State, 76 Wis. 2d 259, 276, 251 N.W.2d 56, 64 (1977). See also State v. Olson, 127 Wis. 2d 412, 428-429, 380 N.W.2d 375, 383 (Ct. App. 1985) (refusal to name marijuana supplier). Roberts, upon which the trial court relied, also recognized that a defendant's refusal to cooperate with law enforcement is an appropriate sentencing consideration:

It hardly could be otherwise. Concealment of crime has been condemned throughout our history. The citizen's duty to "raise the 'hue and cry' and report felonies to the authorities," was an established tenet of Anglo-Saxon law at least as early as the 13th century. The first Congress of the United States enacted a statute imposing criminal penalties upon anyone who, "having knowledge of the actual commission of [certain felonies,] shall conceal, and not as soon as may be disclose and make known the same to [the appropriate] authority. . .." Although the term "misprision of felony" now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.

Id., 445 U.S. at 557-558 (citations, quoted sources, and footnote omitted).

¶ 10. The defendant in Roberts, as does Kaczynski here, claimed that he refused to cooperate because he had, in the words of Roberts, "legitimate fears of physical retaliation." Id., 445 U.S. at 559. Roberts noted, and this is what Kaczynski hangs his hat on: Ibid. Here, of course, unlike Roberts and, apparently, both Holmes and Olson, where it does not appear that "fear of retaliation" was ever raised, Kaczynski presented his fears of retaliation to the trial court. As we have seen, the trial court considered what Kaczynski and his lawyer offered, but, as revealed by its comments quoted above, doubted Kaczynski's veracity and also believed that stronger social values prevailed.

These arguments would have merited serious consideration if they had been presented properly to the sentencing judge. But the mere possibility of unarticu-lated explanations or excuses for antisocial conduct does not make that conduct irrelevant to the sentencing decision. The District Court had no opportunity to consider the theories that petitioner now advances, for each was raised for the first time in petitioner's appellate brief. Although petitioner knew that his intransi-gency would be used against him, neither he nor his lawyer offered any explanation to the sentencing court. Even after the prosecutor observed that the failure to cooperate could be viewed as evidence of continuing criminal intent, petitioner remained silent.

¶ 11. It is true, as Kaczynski asserts on this appeal, that prisons are dangerous places and, all too often, those in charge of prisoner safety are unable to ensure that prisoners will not be preyed upon, attacked, or even murdered by those with whom they are incarcerated. That danger also applies to not only the general prison population but also to certain classes of prisoners who come into prison with special stigma— child molesters, for example. See James E. Robertson, The Constitution in Protective Custody: An Analysis of the Rights of Protective Custody Inmates, 56 U. Cin. L. Rev. 91, 98-99 (1987). But just as child molesters who deserve prison should not get a pass from incarceration because they may be at special risk inside the institution, we cannot, as Kaczynski urges, decree that it is an erroneous exercise of sentencing discretion for a trial court to enhance a sentence when a defendant's refusal to cooperate is based on his or her incantation of a fear of retaliation — even when that fear might be justified. To do so, would be to enact the "Tony Soprano" "code of silence" into the substantive law of this state. This we refuse to do.

¶ 12. We are in no position to second-guess the trial court's assessment of Kaczynski's sincerity. See State v. Baudhuin, 141 Wis. 2d 642, 647, 416 N.W.2d 60, 62 (1987) (trial court decides credibility of witnesses and weight given to what they say). Moreover, as summarized below, a sentencing court's evaluation of the various sentencing considerations is vested in the trial court's discretion. We cannot say that the trial court erroneously exercised its discretion in considering Kaczynski's refusal to name his armed and masked accomplice.

B. Alleged harshness of Kaczynski's sentence.

¶ 13. Sentencing is vested in the trial court's discretion, and a defendant who challenges a sentence has the burden to show that it was unreasonable; it is presumed that the trial court acted reasonably. State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912, 925 (1998). The primary factors considered in imposing sentence are the gravity of the offense, the character of the offender, and the need for the public's protection. Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 669, 561 (1980). If the trial court exercises its discretion based on the appropriate factors, its sentence will not be reversed unless it is "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461 (1975). As can be seen from Part I, above, the trial court considered carefully the appropriate factors. Moreover, we cannot say that a sentence of ten years for conduct that the legislature deemed worthy of potential imprisonment for forty-five years shocks the community's sense of justice.

By the Court. — Judgment and order affirmed.

       Kaczynski argues that we should follow federal sentencing guideline U.S.S.G § 5K1.2, which provides that a "defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." First, of course, we are not bound by a sentencing rubric applicable only to the federal courts. Second, even in the federal system, however, § 5K1.2 does not prevent a sentencing court from penalizing a defendant for refusing to help authorities investigate others who may be involved in criminal activity; although it prevents the sentencing court from going outside the otherwise applicable guideline range for the defendant, it does not prevent the trial court from selecting a more severe sentence within that range. United States v. Klotz, 943 F.2d 707, 709-710 (7th Cir. 1991); United States v. Burgos, 276 F.3d 1284, 1291 n.8 (11th Cir. 2001). Although we acknowledge that this analogy is less-than-perfect, in essence the trial court here took the permissible sentencing range for armed robbery, a maximum of ten years of incarceration, and gave to Kaczynski the most severe sentence within that range.


text:
    Virginia Surety Co., Inc., and Stainless Foundry & Engineering, Inc., Plaintiffs-Appellants, v. Wisconsin Labor and Industry Review Commission, TIG Insurance Company, State of Wisconsin Work Injury Supplemental Benefit Fund, and Thomas McGaw, Defendants-Respondents, Stainless Foundry & Engineering, Inc., Defendant.
    Court of Appeals

      No. 02-0031.

      Oral argument October 1, 2002.

    Decided October 22, 2002.

    2002 WI App 277
    (Also reported in 654 N.W.2d 306.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christine K. Nelson of Nelson, Connell & Kramer, S.C., Brookfield. There was oral argument by Christine K. Nelson.
    On behalf of the defendant-respondent, Wisconsin Labor and Industry Review Commission, the cause was submitted on the brief of Jeffrey J. Shampo, Madison. There was oral argument by Jeffrey J. Shampo.

    On behalf of the defendant-respondent, TIG Insurance Company, the cause was submitted on the brief of Michelle L. Danielson oí Hailing & Cayo, S.C., Milwaukee. There was oral argument by Roland Cafaro.

    On behalf of the defendant-respondent, State of Wisconsin Work Injury Supplemental Benefit Fund, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen M. Sobota, assistant attorney general. There was oral argument by Stephen M. Sobota.

      On behalf of the defendant-respondent, Thomas McGaw, the cause was submitted on the brief of Michael H. Gillick of Murphy, Gillick, Wicht & Prach-thauser, Milwaukee. There was oral argument by Michael H. Gillick.

    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 2-19-03.

   FINE, J.

¶ 1. Virginia Surety Company, Inc., and its insured, Stainless Foundry & Engineering, Inc., appeal from an order of the trial court affirming a decision by the Labor and Industry Review Commission that determined that Virginia Surety was the worker's compensation carrier liable for occupational disability payments to Thomas McGaw for the silicosis-based disability he developed during his employment for Stainless Foundry & Engineering, even though Virginia Surety's policy became effective on July 1, 1997, less than two months before McGaw was forced to stop working because of his disability. The issue presented by this appeal is whether employer-required medical examinations for an occupation-caused condition that ultimately results in the employee's disability set the "date of disability" as that term is used in the governing statute, Wis. Stat. § 102.01(2)(g)2, when those examinations cause the employee some "wage loss" but the employee does not otherwise miss work until the disability ripens into a physical incapacity to work. As material here, § 102.01(2)(g) provides that, under the worker's compensation law, " 'time of injury', 'occurrence of injury', or 'date of injury' means: ... 2. In the case of disease, the date of disability." The Commission held that McGaw's "date of disability" was the date when he could no longer work and not when he underwent employer-required medical examinations. We affirm.

I.

¶ 2. McGaw started to work for Stainless Foundry & Engineering in 1954, when he was eighteen. With the exception of two years in the armed forces, he worked continuously for Stainless Foundry until August 25, 1997, which was his last day of work. During most of that time he was a grinder and was exposed to sand and dust resulting from grinding stainless steel castings. This exposure resulted in his silicosis, which, all parties agree, produced his work-preventing disability. According to the Commission's findings that are not disputed on this appeal, "prior to his last day of work in August 1997, [McGaw] never missed any time [from work] because of the symptoms from his condition." But McGaw was hardly symptom free. Indeed, the record before the Commission reveals that as early as 1983 his x-rays were abnormal.

¶ 3. In October of 1983, McGaw was examined at the direction of Stainless Foundry & Engineering by Richard G. Harbecke, M.D., because, as noted in his medical records, McGaw's then most recent routine employer-administered x-ray "was felt to show more abnormalities than in the past." The record indicated, however, that McGaw "has had essentially no symptoms." Dr. Harbecke concluded that McGaw "has simple early silicosis, and that there is no more serious process going on." Dr. Harbecke also noted: "At this point, I think the dust control measures that [McGaw] has described are adequate, and [I] do. not feel he has to be prohibited from working." In November of 1983, Mc-Gaw underwent a bronchoscopy as part of Dr. Harbecke's evaluation "with transbronchial lung biopsies," which showed "chronic interstitial pneumonitis without granulomas or typical changes expected with silicosis although silicosis could still not be ruled out." Although at oral argument, Virginia Surety pins the bronchoscopy as McGaw's "date of injury" because he had to be in the hospital, McGaw was, again, reported to be "asymptomatic." Dr. Harbecke wrote to Stainless Foundry & Engineering in March of 1984 that McGaw had "early, nondisabling silicosis."

¶ 4. In 1990, McGaw was re-examined — again at Stainless Foundry's direction. In a letter to McGaw, Dennis Schultz, M.D., reported that there were "old" "abnormal findings" on McGaw's x-rays, "which could be explained by past silica exposure." Dr. Schultz noted that while McGaw's breathing test was "mildly abnormal," which "could also be explained by silicosis," Dr. Schultz did "not expect [McGaw to] develop any complaints in the future." Among other things, Dr. Schultz opined that McGaw was "medically qualified to use a respirator at work," and Dr. Schultz did not recommend "any restrictions for [his] usual job, but would recommend that [McGaw] continue to avoid any significant silica exposures."

¶ 5. In 1991, McGaw was examined by Marc Rasansky, M.D., a pulmonary specialist, to whom Stainless Foundry referred him. Dr. Rasansky examined McGaw on December 2,1991, and reported that McGaw "denie[d] any respiratory symptoms of any type." Nevertheless, Dr. Rasansky opined that McGaw's "[p]ulmo-nary function studies reveal mild restriction and mild obstruction" and that McGaw's x-ray "is most consistent with complicated silicosis." Dr. Rasansky recommended that Stainless Foundry move McGaw "to an area where he has no dust exposure whatsoever" because, in Dr. Rasansky's view, "continued exposure is dangerous." A January 1994 x-ray revealed that McGaw had lungs whose "[a]ppearance is certainly quite compatible with silicosis."

¶ 6. McGaw saw Dr. Rasansky again in early February of 1997. McGaw told him that he had never smoked and, although "[h]e gives a history of intermittent shortness of breath, and he states that he becomes tired at work," McGaw "denies shortness of 'breath at work." Dr. Rasansky reviewed McGaw's chest x-rays and opined in a March 1997 letter that McGaw's "entire picture is most consistent with progressive massive fibrosis, complicated silicosis and secondary underlying pulmonary hypertension." Dr. Rasansky was, however, less than sanguine. He wrote that McGaw seemed to minimize his ailment and, according to Dr. Rasansky, McGaw's "disease is going to be progressive with further development of this disability." He further noted:

I feel that [McGaw] grossly underestimates his degree of disability and symptoms. I consider him extremely ill but, as you can see from his pulmonary function studies, these studies do not totally reflect the severe underlying defect.
Since the patient is wearing.his respirator and his area if [sic is?] well ventilated, one cannot adamantly insist that he discontinue work; however, I would insist that [McGaw] retires at age 62. He will clearly develop increasing and more progressive symptoms over the next several years.

As we have seen, Dr. Rasansky's fears were prescient, and McGaw had to stop working in August of 1997.

¶ 7. Dr. Rasansky saw McGaw again on June 24, 1997, and his handwritten notes of that examination reveal that he diagnosed McGaw as having: "Advanced Silicosis," "Progressive Massive Fibrosis," which Dr. Rasansky opined was secondary to the silicosis, and "Pulmonary hypertension." Dr. Rasansky wrote: "I feel he is impaired" secondary to the silicosis and advised that McGaw should "not work hot humid days." On July 10, 1997, Dr. Rasansky wrote a letter that summarized his June 24 findings:

Thomas McGaw has pulmonary fibrosis secondary to silicosis. There is evidence of progressive massive fibrosis on chest x[-]ray.
Although Mr. McGaw's pulmonary function studies are relatively preserved, I feel that his current dyspnea is totally on the basis of silicosis. I have asked Mr. McGaw not to attend work on hot, humid days. Furthermore, if he could be moved to a job outside of the plant where there is no dust exposure, I feel that his health would improve.

¶ 8. McGaw did not follow Dr. Rasansky's advice. He testified at the administrative hearing that he never missed any work because of his silicosis symptoms between June 24, 1997, when he saw Dr. Rasansky, and August 25, 1997, when he stopped working and that he "just struggled through" hot, humid days during that time.

¶ 9. Dr. Rasansky's findings were echoed in a September 1999 report by Stuart A. Levy, M.D., submitted by Virginia Surety. Dr. Levy examined McGaw in late August of 1999 at Virginia Surety's request. He concluded:

Mr. McGaw's employment at Stainless Foundry and Engineering was a material contributory causative factor in the onset and progression of silicosis. The work exposure did not aggravate or accelerate a preexisting condition. The onset of the condition of silicosis was a direct result of his work place exposure at Stainless Foundry and Engineering.

Dr. Levy also opined:

To a reasonable degree of medical probability, the exposure to silica between 1954 and approximately 1986, when measures taken by Stainless Foundry and Engineering became effective in reducing silica dust levels below the PEL [permitted exposure level], would have been sufficient to account for the development of silicosis in Mr. McGaw. The mechanism for the development of silicosis explains progression of fibrosis even in the absence of further exposure as a result of either improved environmental measures or even leaving the work place.

The record does not further explain what the "permissible exposure limit" was, how it was derived, its validity, or its application to the issue in this case, other than as support for Virginia Surety's contention that McGaw developed disabling silicosis well before it assumed liability for Stainless Foundry & Engineering's compensation claims on July 1, 1997.

¶ 10. The following are not disputed by any of the parties on this appeal:

• Other than his company-directed medical evaluations, McGaw never missed work because of a physical incapacity caused by his silicosis until August 25, 1997; and
• McGaw took either vacation or other remuneration-based time to undergo the company-directed medical evaluations.

II.

¶ 11. When an appeal is taken from a circuit court's review of a decision by the Commission, we review the Commission's decision and not that of the circuit court. General Cas. Co. of Wis. v. Labor & Indus. Review Comm'n, 165 Wis. 2d 174, 177 n.2, 477 N.W.2d 322, 323 n.2 (Ct. App. 1991). On such a review, the Commission's findings of fact are invulnerable unless they are not "supported by credible and substantial evidence." Id., 165 Wis. 2d at 178, 477 N.W.2d at 324. Although on legal matters the scope of our review is more broad, we recognize that legal analyses by agencies who have developed expertise in an area are entitled to deference. Knight v. Labor & Indus. Review Comm'n, 220 Wis. 2d 137, 147-149, 582 N.W.2d 448, 453 (Ct. App. 1998).

¶ 12. We give "great weight" to the legal conclusions of the agency "when the following four elements are met: (1) the agency is responsible for administering the statute, (2) the agency conclusion or interpretation is long standing, (3) the agency employed its specialized knowledge or expertise in forming the conclusion or interpretation, and (4) the agency interpretation provides consistency and uniformity in the application of the statute." Id., 220 Wis. 2d at 148, 582 N.W.2d at 453. We give "due weight" when "the agency interpretation is 'very nearly' one of first impression." Ibid, (quoted source omitted). Finally, we review de novo the agency's legal conclusions when they are matters of first impression. Id., 220 Wis. 2d at 149, 582 N.W.2d at 453.

¶ 13. As seen below, the Commission's determination to disregard company-required medical examinations from the calculus in deciding on a "date of disability" under Wis. Stat. § 102.01(2)(g)2 relied on several of its own decisions interpreting the key court cases. Although these Commission decisions are fairly recent, they reflect an emerging doctrinal interpretation of the worker's compensation statute, which it is charged with administering. Thus, at least three of the four requirements for giving the Commission's decision great-weight deference are present. Moreover, although the Commission has never decided a case presenting the precise facts raised by this appeal, that is not a prerequisite to giving the agency great-weight deference. Honthaners Rests., Inc. v. Labor & Indus. Review Comm'n, 2000 WI App 273, ¶ 12, 240 Wis. 2d 234, 243, 621 N.W.2d 660, 664.

¶ 14. Giving an agency's decision great-weight deference means that we will uphold it if it is reasonable. Id., 2000 WI App 273 at ¶ 13. As we show below, however, the Commission's decision here is more than reasonable; it also passes the due-deference test, urged upon us as an alternative argument in Virginia Surety's reply brief, because "it is reasonable and comports with the purpose of the statute," and another interpretation is not "more reasonable." See American Mfrs. Mut. Ins. Co. v. Hernandez, 2002 WI App 76, ¶ 17, 252 Wis. 2d 155, 165, 642 N.W.2d 584, 589.

¶ 15. All the parties agree that McGaw is disabled. Indeed, Stainless Foundry & Engineering refused to let him work any longer because of his disability. All parties also agree that McGaw's disability stems from his work for Stainless Foundry. His disability, however, did not emerge in an instant, as industrial accidents generally do. See Kohler Company v. Department of Indus., Labor & Human Relations, 42 Wis. 2d 396, 400, 167 N.W.2d 431, 432 (1969) ("An industrial injury or accident is an event, fixed as to time and place."). Rather, it developed slowly. As Kohler Company observed:

An occupational disease is a process, usually extending over a considerable span of time. It has a beginning, relevant on the issue of causation. It has a progression but this can vary in individual cases. There can be a steady deterioration, swift or slow but uninterrupted. There can be improvement and relapse. There can be recovery and re-occurrence. There can be recovery, period. On a claim for benefits for permanent disability, most important is the question, When did the occupational disease ripen into a disabling affliction?

Ibid. Where disability results from such a progressive disease, like silicosis, where there is a continuum of impairment that slowly ripens into a barrier to further work, there is a "conclusive presumption" that the "date of disability" under the statute is "when the employee first suffers a wage loss due to" that condition. General Cas. Co., 165 Wis. 2d at 181, 477 N.W.2d at 325. This is because there cannot be a "date of disability" unless there is a "disability" and evidence of "disability" is the inability to work and resulting non-compensation. See Montello Granite Co. v. Industrial Comm'n, 227 Wis. 170, 186, 278 N.W. 391, 398 (1938) ("no disability in an occupational-disease case in the absence of a showing of a wage loss"); North End Foundry Co. v. Industrial Comm'n, 217 Wis. 363, 369-371, 377, 258 N.W. 439, 441-442, 445 (1935) (workers fired because employer feared that they would become disabled on the job not entitled to worker's compensation when there was no "inability to perform" their work at time of termination). Of course, the "wage loss," need not be actual loss of dollars; loss of remunerative compensation, whether "sick leave, vacation time, or flexibility of schedule," suffices. General Cas. Co., 165 Wis. 2d at 181-182, 477 N.W.2d at 325-326.

¶ 16. As noted earlier, none of the parties disputes that McGaw suffered a "wage loss" when he underwent medical evaluations at Stainless Foundry's direction. Virginia Surety contends that those visits thus establish the "date of disability" by virtue of the "conclusive presumption" recognized by General Cas. Co. The Commission disagreed:

A conclusive presumption, of course, is an irrebuttable presumption. However, the commission declines to read General Casualty to eliminate completely the need to consider when the occupational disease has ripened into a disabling condition. Rather, the commission itself has held that "the date of disability has consistently been interpreted by courts to be the first wage loss through lost work time attributable to the effects of occupational disease." Adams v. Cub Foods, WC Claim no. 91-074342 (LIRC, March 31, 1993) (italics supplied).
Adams indicates that the wage loss used to set a date of disability may not just be somehow associated with the occupational disease in the broadest sense, but must be "attributable to the effects of' the occupational disease. In other words, Adams suggests the wage loss must be due to the symptomatic effects of the work injury, not simply the employer's desire to monitor a nondisabling condition. One could conclude from Adams that an employer cannot convert a nondisabling silicosis into a disabling condition with a "date of disability" simply by requiring a medical examination, an x-ray or other diagnostic test. Instead, the occupational disease must have "ripened" into a disabling condition before wage loss associated with the condition will set a date of disability.

(Emphasis by the Commission in this case.) The Commission also relied on Rothenberger v. Murray Manufacturing, No. 1995051612, 1999 WL 55523 (Wis. Lab. Ind. Rev. Com. 1999), and Kalies v. Brillion Iron Works, No. 1998-024333, 2001 WL 618651 (Wis. Lab. Ind. Rev. Com. 2001).

¶ 17. Rothenberger held that "the simple onset of symptoms which do not cause a worker to seek treatment or lose work time does not automatically establish a 'date of disability' fixing liability for occupational disease," because the focus is on " 'when did the occupational disease ripen into a disabling condition?'" Rothenberger, 1999 WL 55523, at *2 (quoting Kohler Company, 42 Wis. 2d at 400, 167 N.W.2d at 432). Rothenberger explained that: "In deciding this question, the courts look at 'actual physical incapacity to work' rather than a medical or pathological disability which results in no wage loss." Ibid, (quoted source omitted). Thus, employer-required monitoring x-rays and medical evaluations, in the absence of concurrent incapacity, did not set the "date of disability" even though the employee lost time from work for those evaluations. Id., 1999 WL 55523, at *2-3. Kalies followed Rothenberger and held that time away from work for medical evaluations did not set the "date of disability" when the time away was not "due to physical incapacity to perform his work or due to significant restrictions on his ability to perform his work." Kalies, 2001 WL 618651, at *3.

¶ 18. We agree that the Commission's distinction between non-incapacitating symptoms on the one hand and incapacity to work on the other is a reasonable interpretation and comports with the intent of the statute. Indeed, Montello Granite Co., upon which General Cas. Co. relied, noted that the supreme court had "consistently held" that under the worker's compensation act as it then existed, " 'in cases of occupational disease, in order to entitle an employee to compensation, he must have sustained such physical incapacity from disease as renders him incapable of performing his services to the extent that a wage loss results.'" Montello Granite Co., 227 Wis. at 187, 278 N.W. at 398 (quoted source omitted) (emphasis added); General Cas. Co., 165 Wis. 2d at 181, 477 N.W.2d at 325. Montello Granite Co. recognized the distinction, echoed by the Commission's decision here, "between medical or pathological disability which has resulted in no wage loss and actual disability, i.e., physical incapacity to work." Id., 227 Wis. at 188, 278 N.W. at 399. See also Schaefer & Co. v. Industrial Comm'n, 220 Wis. 289, 297, 265 N.W. 390, 393 (1936) (recognizing need to "distinguish carefully between medical or pathological disability and actual physical incapacity to work."). Here, as the Commission recognized, McGaw had a ripening affliction that, ultimately, caused his physical incapacity to work. Until that time, however, although his disease may have been a "medical or pathological disability," it "resulted in no wage loss," see Montello Granite Co., 227 Wis. at 188, 278 N.W. at 399.

¶ 19. The distinction between symptoms that are not disabling and those that are is a logical application of the worker's compensation law. As the Commission opined in this case, "an employer cannot convert a nondisabling silicosis into a disabling condition with a 'date of disability' simply by requiring a medical examination, an x-ray or other diagnostic test." If employers were found to have established a "date of disability" for a worker when that worker was in their employ by directing the employee to see a physician, employers might choose not to so monitor their workers' health, hoping that the employee would get a job with another employer who would then be stuck with the "date of disability." Additionally, an employer might require examinations with the hope of fixing in time an early "date of disability" in order to freeze the level of compensation in some circumstances. See Wis. Stat. § 102.03(4) ("The right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury except as to employees whose rate of compensation is changed as provided in ss. 102.43 (7) and 102.44 (1) and (5) and employees who are eligible to receive private rehabilitative counseling and rehabilitative training under s. 102.61(lm)."); § 102.01(2)(g) ("date of injury" means "date of disability"); § 102.11 (setting compensation levels by dates of injury). Neither alternative is consistent with the purpose of the worker's compensation law, which is to compensate employees suffering disabling disease as a result of their employment, see Kohler Company, 42 Wis. 2d at 408, 167 N.W.2d at 436 (" '[T]he primary purpose of the law as of all Workmen's Compensation Acts, is to compensate in some measure injured workmen for loss of wage-earning power sustained in the industry.'") (emphasis in Kohler Company) (quoted source omitted), and also to protect their health.

¶ 20. Although Virginia Surety assumed Stainless Foundry & Engineering's worker's compensation risk on July 1, 1997, it is liable for the payments to McGaw because McGaw's "date of disability" was August 25, 1997, some two months later. See Travelers Ins. Co. v. Department of Indus., Labor & Human Relations, 85 Wis. 2d 776, 782, 271 N.W.2d 152, 155 (Ct. App. 1978) ("If a single employer has had successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred."). While this may seem unfair, it all evens out: "The company that had insured the compensation liability at the time disability occurred is the one that must pay the compensation awarded. This rule will work no injustice to any individual carrier or employer because the law of averages will equalize burdens imposed by this act among the employers and the compensation insurers of this state." Employers Mut. Liab. Ins. Co. v. McCormick, 195 Wis. 410, 415-416, 217 N.W. 738, 740 (1928).

By the Court. — Order affirmed.

       In light of our resolution of this appeal, we do not discuss the alternative grounds for affirmance that the respondents have advanced. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").