author: BROWN, J. ANDERSON, J.

text:
    Pamela S. Predick and George Predick, Plaintiffs-Respondents, v. Margaret O'Connor, Defendant-Appellant. [Case No. 02-0503.] Tina M. Busch, Petitioner-Respondent, v. Margaret O'Connor, Respondent-Appellant. [Case No. 02-0504.]
    Court of Appeals

      Nos. 02-0503, 02-0504.

      Submitted on briefs October 28, 2002.

      Decided January 22, 2003.

    2003 WI App 46
    (Also reported in 660 N.W.2d 1.)

      On behalf of the defendant-appellant and the respondent-appellant Margaret O'Connor, the cause was submitted on the briefs of Raymond D. Jamieson of
      Cook & Franke S.C. of Milwaukee and Micabil Diaz of the American Civil Liberties Union of Wisconsin Foundation.

    On behalf of the petitioner-respondent Tina M. Busch and the plaintiffs-respondents Pamela S. Predick and George Predick, the cause was submitted on the briefs of Thomas J. McClure of McClure Law Offices S.C. of Delafield.
    Before Nettesheim, RJ., Brown and Anderson, JJ.

       Petition to review denied 4-22-03.

   BROWN, J.

¶ 1. At first blush, an order banishing a person from a county seems like it was taken from the script of some old Grade-B cowboy movie where the sheriff tells the bad guy to "get out of Dodge." The knee-jerk reaction is that this kind of order is arbitrary at the very least and an invasion of a person's constitutional right to travel at the most. When applied to the facts in these two harassment actions, however, the orders make a lot of sense. Margaret O'Connor twice used her automobile as a dangerous weapon, once running Tina M. Busch off the road while Tina was driving both her daughter and Pamela and George Predick's daughter to soccer practice, and once attempting to "side swipe" Pamela while Pamela was jogging. Margaret has been stalking these people for a decade and has ignored previous orders to cease and desist from her behavior. She has expressed no remorse and exhibits no inclination to discontinue her dangerous fixation on the people she torments. The trial court determined that because of O'Connor's past utter disregard for less intrusive orders and because of her use of a vehicle as a dangerous weapon, O'Connor's victims needed a "zone of protection." We hold that banishment from Walworth county was a proper exercise of discretion because it may finally keep the tormentor at bay. We affirm.

¶ 2. While the salient facts of this case revolve around the two instances in which Margaret used her vehicle to harass Tina and Pamela, we set forth in detail the factual history of this case in order to demonstrate how the trial court has attempted to implement more narrowly tailored orders and why they have failed to prevent Margaret's continuous harassment. The facts of this case stretch back to approximately 1991 when Pamela and Margaret, whose mother lives across the street from the Predicks in the City of Delavan, became neighbors and acquaintances. At her deposition in 1998, Pamela testified that sometime after the parties became acquainted and had socialized on a few occasions, Margaret began to call and harass her, her family and many of her friends several times during both day and nighttime hours. Pamela also testified that on at least one occasion Margaret had approached and pushed her in front of one of her children. In her deposition, Margaret justified her past actions by claiming that she and Pamela had been in a romantic relationship. According to Pamela's testimony, Margaret's actions resulted in a two-year restraining order being issued against Margaret in 1994.

¶ 3. Pamela also testified at her deposition, and then again at a later hearing, that sometime in 1995 she had gone jogging and a car driven by Margaret came at her at a high rate of speed such that she was forced to jump off to the side of the road to avoid getting hit. Pamela stated that Margaret then slammed on the brakes, exited the vehicle and reached into the rear of the car. Pamela testified that she feared for her safety and she had to run as fast as she could in order to get away. At the hearing, Margaret denied running Pamela off the road and testified that all she had done that day was pass by her in her car.

¶ 4. In 1997, after the expiration of the first restraining order, the Predicks commenced another action against Margaret, seeking a second harassment injunction. The parties entered into a stipulation and order pursuant to which the trial court issued a harassment injunction against Margaret. In December 1997, the Predicks filed a complaint alleging defamation and intentional infliction of emotional distress and asserting a claim for punitive damages. The Predicks alleged that Margaret had continued to harass them by both telephoning and threatening them, their friends, their family and their co-workers during all hours of the day and night. Margaret admitted making the calls to Pamela's co-workers and to contacting the Predicks, but denied contacting Pamela's family and making many of the alleged statements. Margaret once again justified her conduct by asserting that at one time Pamela had initiated an intimate relationship with her.

¶ 5. In 1999, the parties resolved the dispute by entering into a stipulation and order imposing a permanent injunction on both parties. The stipulation and order required the Predicks to refrain from contacting, harassing or interfering with the lives of Margaret and her mother. The stipulation and order further required Margaret to pay the Predicks $4000 and barred her from, inter alia, contacting, harassing and interfering with the Predicks, members of their family, and their medical providers, utility companies and co-workers. The agreement was to extend throughout Margaret's lifetime and provided that if she violated the agreement, the court could impose a fine of up to $1000 and imprisonment not exceeding ninety days.

¶ 6. In the fall of 2000, the Predicks filed several pleadings with the trial court, alleging that Margaret had not complied with the 1999 stipulation and order. In August 2001, the trial court found Margaret in contempt of court for violating the stipulation and order by intentionally threatening in a telephone conversation with the Predicks1 attorney that she would have video surveillance conducted against the Predicks and by contacting an acquaintance of both the Predicks and Margaret and inferring in the conversation that the "Predicks were in trouble." The court further found that the phone calls served no legitimate purpose and were meant to harass the Predicks. The court ordered Margaret to serve ninety days in jail, but gave her the opportunity to purge the contempt. According to the purge conditions, Margaret was to: (1) pay $2000 to the Predicks, (2) have absolutely no future contact with the Predicks, (3) comply with all prior court orders in place, and (4) not call anyone or mention the Predicks' names to anyone other than her counsel. The court then added penalties for noncompliance.

¶ 7. In October 2001, the Predicks filed an order to show cause, alleging that Margaret was in contempt of the order. After a hearing on the matter, the court concluded that Margaret had violated the order for two reasons. First, the court found that Margaret had violated the previous orders barring contact with members of the Predick family. The court found that Margaret, in her rental car, had followed Tina, who at the time was driving her daughter and the Predicks' daughter to soccer practice. The court found that Margaret drove up to Tina's car and gesticulated and yelled obscenities at her, scaring everyone in the car. The court further found that in an attempt to drive Tina off the road, Margaret had forced her into the oncoming lane of traffic, endangering all of the passengers in the vehicle. We note that in a prior hearing the court had observed that Margaret had chosen to harass Tina because she had become convinced, in the absence of any evidence, that Pamela and Tina were lovers and consequently had come to view Tina as a rival for Pamela's affections. Second, the court found that Margaret had on numerous occasions violated the purge conditions in the August 2001 order, which barred her from uttering the Predicks' names in the presence of anyone other than her counsel, by leaving numerous after-hours voice messages of an unreasonable and harassing nature on the office voicemail of the Predicks' counsel. The court further found that the calls were abusive and Margaret used personally derogatory language toward the Predicks and their counsel. The court counted 141 times that Margaret had mentioned the Predicks in the voice messages. According to the court, the calls bore no resemblance to the reasonable pursuit of her case. The court then imposed remedial sanctions and additional purge conditions, among them a condition prohibiting Margaret from entering Walworth county. Margaret then filed a motion to modify the purge conditions, which the court subsequently denied.

¶ 8. In October 2001, in response to the incident in which Margaret allegedly attempted to drive her off the road, Tina, who is Pamela's business partner, also filed a petition for a harassment injunction against Margaret pursuant to Wis. Stat. § 813.125 (1999-2000). Margaret failed to appear, and, based upon the testimony given in the Predicks' case, the court granted Tina a default judgment against Margaret and an injunction prohibiting Margaret from entering Walworth county, with limited exceptions for court appearances. The court ordered that Margaret have "no contact of any type at any place petitioner(s) may be. No contact through any third person of petitioner(s) on behalf of respondent. Court also will order her (respondent) not to be in Walworth County unless she is here for a court appearance or on her way to court." The court denied Margaret's subsequent motion to reconsider the civil injunction.

¶ 9. Margaret appeals from the trial court orders from both of the cases prohibiting her from entering Walworth county and denying her motions for reconsideration. These appeals were consolidated and we address them both here.

¶ 10. This appeal requires us to apply a two-part standard of review. Whether the trial court's orders violated Margaret's constitutional rights is a question of law. We review questions of law without deference to the decisions of the lower court. Ball v. Dist. No. 4, Area Bd. of Vocational, Technical and Adult Educ., 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). However, we will not overturn the trial court's findings of fact in either of the proceedings unless they are clearly erroneous. See Wis. Stat. § 805.17(2).

¶ 11. Margaret seems to argue that banishment is a per se violation of constitutional rights and that a court should not have the authority to impose it. She cites to numerous cases from other jurisdictions that at first glance would appear to hold that banishment is presumptively invalid. While as a matter of course we do not normally engage in a lengthy discussion of cases from foreign jurisdictions, we believe it is important to do so here. A closer inspection of the facts and circumstances of the cases will reveal why the courts in fact chose to invalidate the banishment conditions before them.

¶ 12. In sevéral of the cases, the courts determined that while they might have the authority to banish an individual from a geographic area, the facts and circumstances of the case did not support the imposition of the restriction. In State v. Doran, 95 Wash. App. 1068, 1999 WL 350657 at 1 (Wash. App. Div. 1) (per curiam), for example, a case Margaret discusses at length, Doran was convicted of telephone harassment and violating a protection order that was in place against him. Id. As a condition of his sentence, the trial court ordered him to leave the county upon his release from prison. Id. The court of appeals determined that the record did not demonstrate that Doran's conduct, i.e., telephone harassment, and the victim's activities within the county, justified a countywide ban. Id. at 3. However, the court refused to rule out the possibility that in some circumstances a countywide prohibition would be appropriate, noting that relying on the well-defined boundaries of a county or city would foster the uniform enforcement of such a restriction. Id.

¶ 13. In Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984), the court concluded that banishing Johnson from his county of residence as a condition of his probation was not reasonably related to his rehabilitation when banishment would leave him broke and unemployed. In a similar vein, in Jones v. State, 727 P.2d 6, 8-9 (Alaska Ct. App. 1986), the court vacated a probation condition prohibiting Jones from being within a forty-five block area as not being reasonably related to his rehabilitation. The court determined that the trial court had not given a reason why, in light of the fact that the forty-five block area included both Johnson's work location and residence, it had imposed such a harsh condition. Id. at 9. In McCreary v. State, 582 So. 2d 425, 426, 428 (Miss. 1991), the court struck down a condition essentially banishing McCreary, who was convicted of rape, from the State of Mississippi, concluding that on the facts available, the condition was also wholly unrelated to McCreary's rehabilitation. The court acknowledged that in another case it had upheld a condition prohibiting an individual from coming within 125 miles of a county, see Cobb v. State, 437 So. 2d 1218 (Miss. 1983), but stated that it was concerned about the public policy implications of dumping convicts on another state. McCreary, 582 So. 2d at 427-28. Further, in In re White, 97 Cal. App. 3d 141, 147 (Cal. Ct. App. 1979), the court struck down a probation condition banishing White, who was convicted of soliciting an act of prostitution, from certain high-prostitution areas during all hours of the day and night. The court could not see how the sweeping prohibition was reasonably related to White's past or future criminality when White's criminal conduct took place at a time of darkness and the evil to be eliminated by the criminal statute, i.e., streetwalking, was more prevalent in the later hours of the day. Id. at 147-48.

¶ 14. We acknowledge that several of the cases contain language suggesting that banishment is impermissible, but conclude that these cases either must be limited to their facts or have been modified by subsequent decisions. For example, the court in In re Mannino, 14 Cal. App. 3d 953, 965 (Cal. Ct. App. 1971), concluded that banishment was a prohibited term of probation. There, the court invalidated a condition prohibiting a student, who was convicted of assault for kicking a student and resisting police officers at an anti-war demonstration, from entering the grounds of any school in which he was not enrolled. Id. at 956, 957 n.2, 962. We observe that in a subsequent unpublished case, the court limited Mannino to its facts and upheld an order imposing a similar banishment condition. See State v. Fred S., 2002 WL 1925124,1 (Cal. App. 2 Dist.).

¶ 15. While in Bird v. State, 190 A.2d 804, 807 (Md. Ct. App. 1963), the court did hold that suspension of a sentence conditioned on banishment was beyond the power of the trial court, the conclusion must be read in context of the drastic nature of the banishment condition in that case. The trial court there had banished Bird to Puerto Rico for ten years. Id. at 805. Thus, the banishment condition amounted to more than a minor burden on Bird's rights to travel and association. It was, in fact, the equivalent of deporting Bird to another country. Similarly, in Silva v. Babak S., 22 Cal. Rptr. 2d 893, 895, 898 (Cal. Ct. App. 1993), the court vacated a trial court order requiring Babak S., a juvenile, to live with his parents in Iran for two years, concluding that it constituted a de facto deportation.

¶ 16. Although in State ex rel. Halverson v. Young, 154 N.W.2d 699, 702 (Minn. 1967), the Minnesota Supreme Court did declare that courts did not have the power to impose banishment as a condition of probation, riiore recently, in State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000), the court seemed to modify the earlier ruling and concluded that as a general rule courts did have the authority to impose geographical limitations. In fact, the court explicitly acknowledged that the probation condition in the case — banishment from the city of Minneapolis — was not presumptively invalid. Id. at 84. While the court did strike down that condition, it did so because it determined that the source of Franklin's criminal behavior, criminal trespass, was centered on one individual home, which was located mere blocks from the southern border of Minneapolis and miles from the northern border. Id. at 83-84.

¶ 17. Finally, we note that in a case neither party cites, this court upheld a banishment condition. See State v. Nienhardt, 196 Wis. 2d 161, 164-65, 537 N.W.2d 123 (Ct. App. 1995). In that case, Nienhardt was convicted of unlawful use of a telephone; however, evidence at a sentencing hearing demonstrated that she had engaged in a persistent pattern of harassing phone calls in addition to those underlying the conviction and that she had been observed both spying on and following the victim. Id. As a condition of her probation, the trial court banished Nienhardt from the city of Cedar-burg. Id. at 166. On appeal, Nienhardt had argued that the condition violated her constitutional rights. Id. at 168. While we did not specifically address each of Nienhardt's constitutional claims, we did conclude that based on the particular circumstances of the case and the trial court's findings that Nienhardt did not live in Cedarburg and only traveled there to purchase cigarettes, the condition banishing Nienhardt from Cedar-burg was not overbroad or unduly restrictive of her right to travel. Id. at 168-70.

¶ 18. Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.

¶ 19. We therefore turn to the facts of this case. Here, we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county. The evidence in the record demonstrates that while she does not live or work in the county, Margaret frequently rents cars to drive around Walworth county. Further, her statements on the record indicate an absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. In fact, the trial court found that if Margaret were even in Walworth county, she would be tempted to prey upon her victims. Hence, Margaret poses a constant and dangerous threat any time she is present in the county.

¶ 20. Here, we also have three people who, as the record evidences, are victims for no apparent reason and have been driven to desperation by Margaret's continuous harassment. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction the trial court imposed will provide them with a margin of territorial safety in which they can live in peace.

¶ 21. Margaret asserts that there is no basis in the record for concluding that a "keep away" zone of 300 yards would be any less effective than total banishment from the county in ending the harassment. Margaret's use of a car as a tool for tormenting Tina, Pamela and George makes her too mobile and too dangerous for such a limited restriction. An area smaller than the county would provide her with too many opportunities to meet up with her victims, who, as we have noted, live and work in that area. Further, in the event that she does violate the orders and enter Walworth county, relying on the county's boundaries will give area law enforcement the opportunity to apprehend her before she is able to threaten or, worse, seriously injure Tina, Pamela, George and other members of their families. Thus, the injunction and purge condition are properly tailored to prohibit any future harassment and do not unduly impinge on Margaret's constitutionally protected activities. Accordingly, we affirm the orders of the trial court banishing Margaret from Walworth county.

By the Court. — Orders affirmed.

ANDERSON, J.

¶ 22. (concurring). At first blush, a court order banishing Margaret O'Connor from Wal-worth county and preventing her from visiting her mother appears to be overbroad and an infringement on her constitutional right to travel. I join in the majority opinion but write separately to make clear that both Margaret's dangerous behavior and the need to protect victims' constitutional rights provide grounds for the order of banishment.

¶ 23. In considering the banishment order in the injunction granted Tina, the guiding principle is that a harassment injunction must be narrowly tailored to prohibit only the proven acts of harassment and to avoid improperly impinging upon constitutionally protected behavior. See Bachowski v. Salamone, 139 Wis. 2d 397, 414, 407 N.W.2d 533 (1987). And, the banishment order as a purge condition in the civil contempt involving the Predicks must meet the same standards. See State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 845, 472 N.W.2d 839 (Ct. App. 1991) (purge conditions must be "feasible and must be reasonably related to the cause or nature of the contempt").

¶ 24. There is no doubt that the banishment order is meant to control conduct that Margaret has engaged in. The record includes evidence that at least on two occasions Margaret used an automobile to harass and physically assault the victims. At the hearings, the Predicks and Tina established that Margaret used an automobile to endanger Tina, her daughter and the Predicks' daughter. Margaret attempted to drive Tina off the road and succeeded in forcing Tina into the oncoming lane of traffic. Majority at ¶ 7. Pamela also testified that on an earlier occasion, Margaret had driven a car at her at a high rate of speed, forcing Pamela to jump off the side of the road. Majority at ¶ 3.

¶ 25. The use of an automobile as a weapon to harass and possibly injure others is dangerous behavior that must be prevented. And, when such behavior is part of ongoing stalking, it becomes even more ominous. Stalking is a gender-neutral crime, Jennifer A. Hueter, Note & Comment, Lifesaving Legislation: But Will The Washington Stalking Law Survive Constitutional Scrutiny?, 72 Wash. L. Rev. 213, 215 (Jan. 1997); and, as in this case, the stalker can be a woman known to the victims, Carol E. Jordan et al., Stalking: Cultural, Clinical and Legal Considerations, 38 Brandeis L.J. 513, 533 (Spring, 2000).

¶ 26. Stalking is not a benign behavior, "[s]talking is typically an escalating behavior. Without proper intervention, a stalker's behavior becomes increasingly disturbing over time and [she] becomes more dangerous to [her] victim. Physical attacks usually follow months of harassing, following, or threatening, and repeated violations of civil protection orders." Jennifer L. Bradfield, Note, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims?, 21 Harv. Women's L.J. 229, 235-36 (Spring, 1998) (footnote omitted). Almost one-half of all victims report that their stalkers directly threaten them. Patricia Tjadean & Nancy Thoennes, Stalking In America: Findings From the National Violence Against Women Survey, National Institute of Justice and Centers for Disease Control and Prevention, Research in Brief at 7-8, exhibit 12 (April 1998), at http://www.ncjrs.org/pdffiles/169592.pdf. The NIJCDC study found that there is a strong link between stalking and other forms of violence in intimate relationships. Id. at 2.

¶ 27. Victims do not just suffer physical injuries from stalking. "Stalking victims suffer profound, long-term emotional injuries at the hands of their stalkers. Many stalking victims experience depression, generalized anxiety, obsessive-compulsive behaviors, and even symptoms of Post-Taumatic Stress Disorder. A number of victims lose time from work, while some never return to work." Bradfield, supra ¶ 26, at 232 (footnote omitted). Some victims also report that the stalking caused their personalities to change and they experienced feeling paranoid, being easily frightened, more aggressive and less trusting. Jordan, supra ¶ 25, at 534.

¶ 28. There can be no doubt that Margaret's use of an automobile in an attempt to run Pamela, her daughter and Tina off the road is an escalating act of violence that the court is required to directly address and fashion effective protection for the victims. The court, obviously frustrated by Margaret's repeated violations of the injunction issued to prevent the harassment of the Predicks, chose to create a zone of safety for the victims by banishing Margaret from the county.

¶ 29. It is this geographical banishment that Margaret challenges. She is correct that

[t]he freedom to move about is a basic right of citizens under our form of government, in fact, under any system of ordered liberty worth the name. It was not added to our United States Constitution by the enactment of the first ten amendments. It is inherent, not only in the Bill of Rights, but in the original document itself. It has properly been termed "engrained in our history" and "a part of our heritage."

Ervin v. State, 41 Wis. 2d 194, 200-01, 163 N.W.2d 207 (1968). Although, Margaret does not mention it, Wisconsin also recognizes a constitutional right of intrastate travel:

[T]ransitory movement within a community is a constitutionally guaranteed right — the right of freedom of movement. The inherent right of freedom of movement involves the freedom to move about on the sidewalks and streets of a community. This right to freely move about one's community is separate and distinct from the right to interstate travel.

Brandmiller v. Arreola, 189 Wis. 2d 215, 225, 525 N.W.2d 353 (Ct. App. 1994) (citation omitted), aff'd, 199 Wis. 2d 528, 544 N.W.2d 894 (1996).

¶ 30. Margaret fails to acknowledge that the victims also have a constitutional right to travel and that right includes the right to move freely about the sidewalks and streets of the community. See id. When private citizens have competing constitutional rights, it is the duty of the court to achieve a balance between the exercise of those rights, vis-a-vis each individual asserting the constitutional right and the citizenry as a whole. Here, the court had to balance Margaret's right to travel throughout Walworth county against the rights of the victims to move freely and safely throughout Walworth county. In achieving that balance, the court properly considered that on two occasions Margaret had misused the constitutional right to travel by attempting to run the victims off the road. The court also properly considered the safety of all who travel in Walworth county. Because Margaret had endangered others while exercising her right to travel, the court appropriately concluded that to ensure the victims and the citizenry as a whole could freely and safely travel within Walworth county, Margaret had to be banished from the county.

¶ 31. Margaret also fails to acknowledge that another of the victims' constitutional rights is implicated —the right to privacy. This right was discussed as early as 1928 by Justice Brandéis, who referred to it as "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

¶ 32. How the right to privacy interplays with the right to travel was explained by the Washington Supreme Court in State v. Lee, 957 P.2d 741 (Wash. 1998). That case involved a challenge that the State's stalking law was overbroad because it potentially infringed on the right to walk or wander in the community. Id. at 751. While the Washington Supreme Court's opinion related to the constitutionality of a statute, its analysis can easily be adopted when considering Margaret's overbreath challenge to the terms of the harassment injunction and to the terms of the purge condition. The Washington Supreme Court acknowledged that the right to travel is a basic right under the United States Constitution and a state law's primary objective cannot be to impede the right to travel. Id. The court then observed, "There is an acknowledged constitutional right to be free from governmental interference, but the United States Constitution does not create a right for any person to interfere with the rights of other persons." Id. at 751-52.

¶ 33. The Washington Supreme Court then turned to the right to privacy:

The United States Supreme Court has recognized the "right of privacy" may be created by specific constitutional guaranties although the "right of privacy" does not exist in any specific provision of the United States Constitution.... Personal rights found in the guaranty of privacy are fundamental to or implicit in the concept of ordered liberty. If the right of privacy offers any protection, that protection must include the right to be left alone.
In the case of stalking, as evidenced by these cases, the State has a legitimate interest in restraining harmful conduct. It may do so under the police powers. Individuals have a constitutional right to move about as long as they are not committing a crime. The stalking statute ... does not interfere with one's legitimate freedom of movement or right to travel, but applies to conduct between two or more persons when one wishes to be left alone and to be free of interference by the other. The statute is a reasonable exercise of the police powers in protecting privacy interests of a segment of society from invasive oppressive behavior and harmful conduct. One person's freedom of movement gives way to another person's freedom not to be disturbed.

Id. at 752-53 (footnotes omitted).

¶ 34. Likewise, in this case, the harassment injunction and purge condition are meant to control Margaret's conduct toward the victims who wish to be left alone and to be free to travel openly and safely on the streets of Walworth county. Because Margaret has proven that she is an imminent danger to the victims, when she is in Walworth county her right to travel must give way to the victims' freedoms to travel and to be left alone. The only alternative available to the court was to create a zone of safety by banishing Margaret from Walworth county.

       We note that there are three victims in this case, two of whom are married and share the same last name. We will refer to the parties by their first names for the sake of clarity.

       We note that the trial court determined that it was unlikely that such a relationship existed between Pamela and Margaret. Further, we point out that the existence of the relationship is irrelevant for our purposes, as it would not have entitled Margaret to consistently harass Pamela and her family.

       The Predicks later amended their complaint in 1998, changing the first count from defamation to libel and slander.

       In their complaint, the Predicks alleged that Margaret had contacted Pamela's doctor and co-workers at her business, and after gaining access to the Predicks' telephone billing records, had made a series of phone calls to their family and friends.

       The agreement, in pertinent part, read as follows:
      8. Upon approval of the Court, [Margaret] shall be enjoined and restrained from doing any of the following actions for the purpose of contacting, harassing or interfering in any way with the Predicks:
      a. Having any contact with the Predicks, including [the enumerated family members], in any fashion, including but not limited to, by telephone, by letter or in person at their homes or the family members' homes, at school and/or at places of employment.
      b. Contacting the Predicks and [the enumerated family members], physicians or medical personnel of any kind or nature whatsoever, current and future places of employment, including, but not limited to, S. Abraham & Sons and Burr Oak Manor.
      c. Contacting directly or indirectly any utility service, telephone service, mail delivery and other similar services of the Predicks or [the enumerated family members], except as to a party's own particular account with these institutions.
      d. Stalking, spying or harassing the Predicks or [the enumerated family members].

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

       We note that in this opinion we do cite to two unpublished opinions from other states. Wisconsin Stat. § 809.23(3) does not prohibit us from doing so. In Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), we held that the rule does not proscribe citation to circuit court decisions, noting "the statutory scenario of chapter 809 concerns appellate procedure generally and ... Rule 809.23(3), read in context, concerns only court of appeals decisions." Brandt, 160 Wis.2d at 363.

       At least four distinct categories of stalkers have been recognized. A stalker who suffers from delusional erotomania truly believes that the victim, who may not even know of the stalker's existence, is in love with him. This type of stalker usually attempts to establish an intimate relationship with his victim through verbal, written, or physical contact, and believes that his victim reciprocates his desire for a relationship despite the absence of any actual reciprocity. Unlike a delusional erotomaniac, a stalker suffering from borderline erotomania knows that his victim does not reciprocate his feelings. However, this type of stalker may express intense fury when his victim does not develop reciprocal feelings. Borderline erotomaniacs usually have had some emotional involvement with the victim, although even an innocent glance may trigger the stalker. Borderline erotomaniacs often exhibit the same stalking behavior as delusional erotomaniacs: continually writing letters, making telephone calls, sending gifts, and following their victims. The third type of stalker is the "former intimate" stalker. Unlike the delusional or borderline erotomaniac, the former intimate stalker has had an intimate relationship with his victim. A former intimate stalker typically has a history of abusive relationships; many cases involving this type of stalker result in assault or death. A former intimate stalker is profoundly emotionally dependent on his former partner and exhibits a strong need to control her; he "is unable to tolerate the panic and 'abandonment anxiety' that result when his partner leaves the relationship." Finally, the sociopathic stalker differs from the other three types in two distinct ways: he does not try to establish an intimate relationship with his victim and he looks for specific, pre-defined criteria in a victim.
      Jennifer L. Bradfield, Note, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims ?, 21 HaRV. Women's L. J. 229, 236 n.26 (Spring, 1998) (citations omitted).

       The existence of an injunction does not guarantee protection for the victim; close to seventy percent of all protective orders are violated by the stalker. Patricia Tjadean & Nancy Thoennes, Stalking In America: Findings From the National Violence Against Women Survey, National Institute of Justice and CenteRS FOR Disease ContRol and Prevention, Research in Brief at 12, exhibit 20 (April 1998), at http://www.ncjrs.org/pdffiles/169592.pdf.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Timothy Traynor, and Luann Traynor, Plaintiffs-Respondents, v. Thomas & Betts Corporation, Defendant-Appellant.
    Court of Appeals

      No. 02-1553.

      Submitted on briefs December 3, 2002.
    Decided January 22, 2003.

    2003 WI App 38
    (Also reported in 659 N.W.2d 158.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Donald Chance Mark, Jr. and Erik F. Hansen of Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ardell W. Skow and Martha H. Heidt, Baldwin.
    Before Cane, C.J., Hoover, RJ., and Peterson, J.
   PETERSON, J.

¶ 1. Thomas & Betts Corporation appeals a judgment dismissing its counterclaims and granting reasonable expenses and attorney fees to Timothy and Luann Traynor in the sum of $56,347.28. Thomas & Betts argues that the circuit court erred by finding that it did not have priority rights to a third party settlement. It also argues that the expenses awarded against it were excessive and improper. We disagree and affirm.

BACKGROUND

2. Timothy Traynor was injured in an automobile accident in May 1995. As a result of the accident, Traynor's left leg was amputated below the knee. Traynor was insured by Triple Gold Health Care Plan, an ERISA plan, through his employer, Thomas & Betts. The Plan paid approximately $80,000 in medical payments for Traynor.

I. The Triple Gold Plan

¶ 3. The Triple Gold Plan provided for subrogation rights. Additionally, the Plan states that the claims administrator has the authority to construe the Plan's provisions. Without any citation to the record, Thomas & Betts asserts that Atrium Health Plan, Inc., was the administrator. It then states that Dave Anderson, a claims representative for Atrium, originally interpreted the subrogation clause to give Thomas & Betts priority rights. According to Thomas & Betts, Thomas Gilde, the attorney for Atrium, also similarly interpreted the subrogation clause. Atrium was not the claim administrator when Gilde gave his interpretation.

¶ 4. Thomas & Betts claims it amended the Plan's subrogation provision in 1995 to explicitly provide priority rights. The Plan provides a process for amendment:

All changes to the Plan must be approved by an executive officer of Thomas & Betts Corporation/Meyer Industries .... No agent can legally change the Plan or waive any of its terms. ...

In this case, the amendment was approved by a benefits committee appointed by Thomas & Betts to oversee the administration of the plan. Judith Hines, the human resources manager, was a member of this committee, as were the plant manager and the controller.

II. Pre-Trial Pleadings and Discovery

¶ 5. In March 1996, Traynor and his wife filed an action based on the auto accident. They named Thomas & Betts as a defendant because of its potential subro-gation interest. Thomas & Betts counterclaimed for subrogation and reimbursement, alleging payment of benefits pursuant to the Plan.

¶ 6. There are several items of discovery which played a role in the disposition of this case. In a request for admissions, the Traynors asked Thomas & Betts to admit that Judy Hines was not an executive officer of Thomas & Betts. Thomas & Betts admitted this.

¶ 7. Later, in interrogatories, the Traynors asked Thomas & Betts to "[identify the executive officer . . . who approved the amendment. . .." Thomas & Betts answered that "Judy Hines approved the amendment . . . ."

¶ 8. In another set of interrogatories, the Traynors asked Thomas & Betts to "[p]rovide all Plan or amendment or Plan Document interpretations by a Claims Administrator that you will rely on in support of the claim." Thomas & Betts responded: "The opinion of Mr. Tom Gilde has already been provided in discovery." The Traynors also asked Thomas & Betts to "identify . . . any human being who so constructed/interpreted the Plan . . .." Thomas & Betts answered: "Thomas Gilde."

III. Circuit Court Procedural Background

¶ 9. The Traynors filed a motion for dismissal and summary judgment against Thomas & Betts, seeking reasonable attorney fees and costs. Thomas & Betts opposed the motion. First, it argued that Gilde had interpreted the original Plan to provide priority subro-gation rights. Alternatively, it contended that the Plan was validly amended to provide priority subrogation rights. Because the Plan was governed by ERISA, Thomas & Betts maintained that federal law held that the make whole doctrine, which would require that the Traynors be fully compensated for their injuries before the Plan's subrogation rights could be enforced, did not apply.

¶ 10. The court granted partial summary judgment. It concluded that the Plan was not validly interpreted because Gilde was not the claim administrator when he rendered his opinion. Further, the court concluded the 1995 amendment was not valid because it was not approved by an executive officer as required by the Plan. As a result, the court held that the make whole doctrine did apply in this case. However, the Traynors' claims had not yet been settled, so there was no way for the court to determine whether they would be made whole. Therefore, the court held in abeyance the Traynors' motion for dismissal and request for attorney fees and costs.

¶ 11. The Traynors then settled their accident claim. Thomas & Betts joined a stipulation stating:

[T]he above entitled action has been fully compromised and settled between plaintiffs Timothy Traynor & LuAnn Traynor and defendants Richard O'Neil & General Casualty Company of Wisconsin; that such settlement did not make plaintiffs whole; and that pursuant to Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348 (1982), defendant Thomas & Betts Corporation is barred from sharing in the settlement fund.

¶ 12. After this stipulation, the Traynors moved to dismiss Thomas & Betts and renewed their request for attorney fees and costs. Thomas & Betts did not oppose the motion to dismiss. In fact, in granting the motion, the court stated on the record that the motion was not disputed.

¶ 13. The court also granted the Traynors' request for attorney fees and costs. The court concluded Thomas & Betts' answers to the Traynors' requests for admission and interrogatories were made in bad faith. The Plan provided that amendments could only be approved by an executive officer. In answer to a request for admission, Thomas & Betts admitted that Judith Hines was not an executive officer. However, later in an interrogatory, Thomas & Betts stated that Hines was the person who approved the 1995 amendment. The court concluded it was bad faith to later argue that Hines validly approved the amendment when Thomas & Betts knew she was not an executive officer and, in fact, had already admitted she was not an executive officer. The court ultimately awarded the Traynors $56,347.28 for reasonable attorney fees and costs.

DISCUSSION

I. Subrogation Rights

¶ 14. Thomas & Betts renews the same arguments it made in circuit court: (1) the original Plan was properly interpreted to give it subrogation rights; (2) alternatively, the amendment was validly adopted to give it subrogation rights; and (3) its subrogation rights are not subject to the make whole doctrine.

¶ 15. With amazing temerity, Thomas & Betts presents a thirty-page brief to this court, never once mentioning that, after the court's ruling on the applicability of the make whole doctrine, Thomas & Betts stipulated to drop its subrogation claim. Its attorney signed a stipulation that could not be clearer: "Thomas & Betts is barred from sharing in the settlement fund." Based on the stipulation, the Traynors moved for dismissal. Thomas & Betts did not oppose the motion, nor did Thomas & Betts demur when the court commented that the motion was undisputed.

¶ 16. Now in its reply brief, Thomas & Betts contends that the Traynors are mischaracterizing the "spirit and intent" of the stipulation. It asserts the stipulation was only designed to spare the Traynors a Rimes hearing. It claims it did not stipulate to the applicability of Rimes but merely acknowledged the holding of Rimes. To the contrary, the stipulation is unambiguous. It was not a simple acknowledgement of case law. It specifically agreed that Rimes applies to the Traynors' claims. It stated "that pursuant to Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982), defendant Thomas & Betts is barred from sharing in the settlement fund." Subsequently, Thomas & Betts acquiesced in the dismissal of its counterclaims.

¶ 17. The circuit court dismissed the case based on the stipulation. Construction of a stipulation is a question of law that we review independently. Duhame v. Duhame, 154 Wis. 2d 258, 262, 453 N.W.2d 149 (Ct. App. 1989).

¶ 18. Based on the clear language of the stipulation, Thomas & Betts agreed that it was barred from sharing in the Traynors1 settlement. As a result, it is, in turn, barred from renewing its summary judgment arguments on appeal.

II. Attorney Fees and Costs

¶ 19. The trial court awarded attorney fees and costs against Thomas & Betts pursuant to Wis. Stat. § 804.12(3) and 29 U.S.C. § 1132(g)(1). The trial court found that Thomas & Betts acted in bad faith by arguing the 1995 amendment was validly adopted, when it had already admitted that Hines was not an executive officer. Whether to uphold an award of attorney fees and costs is a question of law that we review independently. See Brandt v. LIRC, 166 Wis. 2d 623, 630, 480 N.W.2d 494 (1992).

¶ 20. Wisconsin Stat. § 804.12(3) provides:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under s. 804.11, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to sub. (1), or (b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.

¶ 21. Under 29 U.S.C. § 1132(g)(1), "court in its discretion may allow a reasonable attorney's fee and costs of action to either party." In determining whether to award fees under 29 U.S.C. § 1132(g)(1), a court should determine whether the party's position was substantially justified. Harris Trust & Savings Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 616 (7th Cir. 1995). Substantially justified means less than meritorious but more than merely non-frivolous. Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 830 (7th Cir. 1984). Attorney fees will not be awarded if the court finds that the party's position has a reasonable basis in law and fact or special circumstances exist which would make an award of fees unjust. Harris, 57 F.3d at 617.

,¶ 22. Thomas & Betts claims it did not act in bad faith. Instead, Thomas & Betts argues that the 1995 amendment was validly adopted by the benefits committee, of which Hines was a part. It also argues that the claim administrator interpreted the original Plan to give the company priority rights. Thomas & Betts maintains that it was justified in relying on what it thought was a valid amendment and on a valid interpretation of the original language.

¶ 23. However, there is no basis for contending the 1995 amendment was validly adopted. In response to the Traynors' request for admissions, Thomas & Betts admitted that Hines was not an executive officer. A response that admits a matter conclusively puts it to rest. Wis. Stat. § 804.11(2). Thomas & Betts never asked for relief from the admission. Then, in its answers to the Traynors' interrogatories, Thomas & Betts responded that "Judy Hines approved the amendment." The Plan specifically requires that all changes be approved by an executive officer. Thomas & Betts admitted that Hines was not an executive officer, but listed her as the one who approved the amendment. It is clear that the amendment was not valid since it was not approved by an executive officer. Thomas & Betts' argument is contrary to a conclusively established fact.

¶ 24. Nor could Thomas & Betts in good faith believe the original Plan language was validly interpreted. Thomas & Betts maintains that Gilde's interpretation was simply a reiteration of Anderson's earlier interpretation. Thomas & Betts contends that the circuit court ignored Anderson's interpretation. However, in its answers to interrogatories, Thomas & Betts answered that Gilde was the one who interpreted the plan. No mention was ever made of Anderson-in discovery or in the circuit court. Since Gilde was not a claims administrator, Thomas & Betts was not justified in relying on his interpretation of the plan.

¶ 25. Finally, Thomas & Betts argues that the fee request submitted by the Traynors was too vague to sustain the award. Thomas & Betts argues the Traynors' attorneys' records lacked sufficient detail to evaluate the reasonableness of the time expenditure. Thomas & Betts questions whether the attorneys actually spent the 400 hours claimed in their affidavit.

¶ 26. We will uphold a trial court's determination regarding the amount of attorney fees awarded as long as the court demonstrated "a logical rationale based on the appropriate legal principles and facts of record." Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 987, 542 N.W.2d 148 (1996) (citation omitted). The court listed a number of reasons for its decision. First, the court noted that the Traynors' attorneys were working on a contingency basis, so their records would not be the same as if they were working on an hourly basis. Second, the court stated that the moving party, as the Traynors were here, would spend more time than the responsive party in filing motions and conducting discovery. Finally, the court noted that this was a very complicated case requiring a great deal of time and attention. We conclude that the court's award demonstrated a logical rationale and uphold its determination.

III. The Traynors' Motion for Fees and Costs

¶ 27. The Traynors now move for fees and costs because they contend Thomas & Betts' appeal is frivolous. "We decide as a matter of law whether an appeal is frivolous." J.J. Andrews, Inc. v. Midland, 164 Wis. 2d 215, 225, 474 N.W.2d 756 (Ct. App. 1991). In order to impose sanctions against a party for a frivolous claim, we must conclude one of the following:

(a) The action, special proceeding, counterclaim, defense or cross complaint was commenced, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
(b) The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

Wis. Stat. § 814.025(3).

¶ 28. There are a number of examples that convince us this appeal was not supported by a good faith argument. Primarily, we are concerned with Thomas & Betts' failure to discuss or even mention in its initial brief the stipulation and applicable admissions and responses to interrogatories. Thomas & Betts attempts to argue a position that is contrary to facts conclusively established through the requests for admission and interrogatories.

¶ 29. Second, it is bad faith for Thomas & Betts to now reassert its summary judgment arguments, when it did not object to dismissal of the case after entering the stipulation. Therefore, under Wis. Stat. § 814.025(3)(b), we determine that this appeal was frivolous because it was made in bad faith, and remand to the circuit court to detmine the amount of fees and costs that should be awarded.

By the Court. — Judgment affirmed and cause remanded.

       Thomas & Betts' allusion to Anderson as the claim administrator who first interpreted the Plan was first raised on appeal. We need not review issues first raised on appeal.


author: SNYDER, J.

text:
    In the Interest of Jeremiah C., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Jeremiah C., Respondent-Appellant. [Case No. 02-1740.] In the Interest of Katie H., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Katie H., Respondent-Appellant. [Case No. 02-2295-FT.]
    Court of Appeals

      Nos. 02-1740, 02-2295-FT.

      Submitted on briefs November 26, 2002 (Case No. 02-2295-FT) and December 5, 2002 (Case No. 02-1740).

    Decided January 22, 2003.

    2003 WI App 40
    (Also reported in 659 N.W.2d 193.)

      On behalf of the respondents-appellants, the cause was submitted on the briefs of Susan E. Alesia, assistant state public defender, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the briefs of Richard J. Barta and Margaret Borkin, assistant district attorneys, and Robert S. Flancher, district attorney.
    Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Jeremiah C. and Katie H. appeal separately from dispositional orders, following petitions finding them juveniles in need of protection or services (JIPS) based solely on habitual truancy, that endured beyond the school term during which each reached eighteen years of age. Their appeals raise identical issues. Accordingly, we have consolidated their appeals for decision. We reverse.

FACTS

¶ 2. On September 14, 2001, the State filed a petition alleging that Jeremiah was a juvenile in need of protection or services, based upon his habitual truancy. At the time of this petition, Jeremiah was less than four months shy of his eighteenth birthday.

¶ 3. On November 5, 2001, Jeremiah entered an admission to the petition; however, he also argued that the circuit court could not impose an order beyond his eighteenth birthday. The circuit court ordered Jeremiah to submit a written argument to support his position, which he did.

¶ 4. The case proceeded to disposition on December 10, 2001. Jeremiah continued to argue that the order must expire on his eighteenth birthday or in January 2002 at the end of the school semester in which he turned eighteen. The circuit court rejected that argument, holding that a "juvenile in Jeremiah's position where he's under 18 and found to be truant, and even though we're very near to his 18th birthday it can still be a one-year order with conditions as appropriate." The circuit court then imposed a six-month order that expired on June 15, 2002.

¶ 5. On December 17, 2001, the State filed a petition alleging that Katie was a juvenile in need of protection or services, based upon her habitual truancy. Katie's eighteenth birthday was June 26, 2002. Katie contested the petition; after a court trial on April 15, 2002, the trial court found that Katie was habitually truant and that she was a juvenile in need of protection or services.

¶ 6. At her May 3, 2002 disposition hearing, Katie argued that the order must expire on her eighteenth birthday, June 26, 2002. The circuit court rejected her arguments and imposed a six-month order set to expire on November 3, 2002. The court noted that Katie was going to have a baby during that six-month time period and "[t]here should be some supervision during that minimum period of time. Clearly, she'll be over 18 probably when the child is born, but under the circumstances, I think supervision is appropriate at least for that minimal period."

¶ 7. Jeremiah and Katie appeal from these orders.

DISCUSSION

¶ 8. This case involves the interpretation of the statutes governing JIPS petitions and orders and corn-pulsory school attendance. Questions of statutory interpretation are questions of law and we owe no deference to the juvenile court's determination. State v. Aaron D., 214 Wis. 2d 56, 60, 571 N.W.2d 399 (Ct. App. 1997).

¶ 9. The JIPS orders placing Jeremiah and Katie under supervision have expired, Jeremiah's on June 15, 2002, and Katie's on November 3, 2002, thus rendering a decision on this issue moot in these cases. An issue is moot when its resolution will have no practical effect on the underlying controversy. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425. In other words, a moot question is one which circumstances have rendered purely academic. Id.

¶ 10. Generally, moot issues will not be considered on appeal. Id. However, there are exceptions to the rule of dismissal for mootness. Id. We will consider a moot point if "the issue has great public importance, a statute's constitutionality is involved, or a decision is needed to guide the trial courts." Id. (citation omitted). Furthermore, we take up moot questions where the issue is "likely of repetition and yet evades review" because the situation involved is one that typically is resolved before completion of the appellate process. Id. (citation omitted).

¶ 11. This issue will not only recur but with such short-term dispositional orders, the term of supervision will most likely expire pending appellate review. The question is thus one that repeats itself yet evades review. See id. For these reasons, we will address the issue even though our decision will have no practical effect on these two cases.

¶ 12. Here, both Jeremiah and Katie were found to be habitually truant and neither challenges that finding. Instead, each argues that the JIPS order based upon habitual truancy must terminate at the end of the term in which the student turns eighteen years old. We agree that the plain language of the statutes mandates such a conclusion.

¶ 13. Wisconsin Stat. § 118.16 (1999-2000) addresses truancy and enforcement of school attendance; a "habitual truant" is "a pupil who is absent from school without an acceptable excuse ... for part or all of 5 or more days on which school is held during a school semester." Under Wis. Stat. § 938.13(6), a circuit court has jurisdiction over a juvenile alleged to be in need of protection or services, which can be ordered by the court for someone who is habitually truant from school.

¶ 14. Wisconsin Stat. § 118.15 addresses compulsory school attendance and states, in relevant part:

(l)(a)... any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.

A child is therefore only required to attend school until the end of the school term in which the child becomes eighteen years old.

¶ 15. By the plain language of the statutes, a juvenile cannot be found habitually truant, and thus in need of protection or services subject to the court's jurisdiction, for failing to attend school after the end of the school term in which the juvenile turns eighteen because the juvenile is not required to attend school after the end of the school term in which he or she turns eighteen. Logically, then, a JIPS order based solely on habitual truancy cannot extend past the time frame in which the juvenile is required to attend school.

¶ 16. In support of its argument to the contrary, the State relies upon Wis. Stat. § 938.355(4), which it claims applies to all orders of the circuit court, either delinquency or JIPS:

(4) TeRmination of ORDERS, (a) Except as provided under par. (b) or s. 938.368, all orders under this section shall terminate at the end of one year unless the court specifies a shorter period of time. Except if s. 938.368 applies, extensions or revisions shall terminate at the end of one year unless the court specifies a shorter period of time. No extension under s. 938.365 of an original dispositional order may be granted for a juvenile who is subject to an order under s. 938.34(4d), (4h), (4m) or (4n) if the juvenile is 17 years of age or older when the original dispositional order terminates. Any order made before the juvenile reaches the age of majority shall be effective for a time up to one year after its entry unless the court specifies a shorter period of time.

We must note, however, that § 938.355(4)(a) was very recently amended and now reads:

Except as provided under par. (b) or s. 938.368, an order under this section or s. 938.357 or 938.365 made before the juvenile reaches 18 years of age that places or continues the placement of the juvenile in his or her home shall terminate at the end of one year after its entry unless the court specifies a shorter period of time or the court terminates the order sooner. Except as provided in par. (b) or s. 938.368, an order under this section or s. 938.357 or 938.365 made before the juvenile reaches 18 years of age that places or continues the placement of the juvenile in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent shall terminate when the juvenile reaches 18 years of age, at the end of one year after its entry, or, if the juvenile is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, when the juvenile reaches 19 years of age, whichever is later, unless the court specifies a shorter period of time or the court terminates the order sooner.

2001 Wis. Act 109, § 532t. These changes became effective July 30, 2002. 2001 Wis. Act 109, § 9400.

¶ 17. All the statutes cited above deal with the same subject matter and assist in implementing the goals and policies of the Juvenile Justice Code. No matter which version of Wis. Stat. § 938.355(4) is utilized, we must read it and Wis. Stat. §§ 118.15, 118.16 and 938.13 in pari materia. See Aaron D., 214 Wis. 2d at 66. In pari materia refers to statutes and regulations relating to the same subject matter or having a common purpose. Perra v. Menomonee Mut. Ins. Co., 2000 WI App 215, ¶ 9, 239 Wis. 2d 26, 619 N.W.2d 123. The statutory construction doctrine of in pari materia requires a court to read, apply and construe statutes relating to the same subject matter together. Id. It is our duty to construe statutes on the same subject matter in a manner that harmonizes them in order to give each full force and effect. Aaron D., 214 Wis. 2d at 66.

¶ 18. A juvenile is not required to attend school past the age of eighteen; once a juvenile turns eighteen and the school term ends, he or she cannot be truant. See Wis. Stat. § 118.15(l)(a). Consequently, a juvenile cannot be found in need of protection or services for failing to do something that he or she is not required to do. The State's construction would lead to an absurd result, a juvenile being found in need of protection or services and under court supervision subject to sanctions, for failure to do that which he or she is not required to do, attend school after turning eighteen. A cardinal rule of statutory construction is that statutes must be construed to avoid an absurd or unreasonable result. Williams v. City of Lake Geneva, 2002 WI App 95, ¶ 7, 253 Wis. 2d 618, 643 N.W.2d 864. Read in conjunction with the unambiguous language of the related statutes, it is clear that a JIPS dispositional order, where the JIPS petition is based solely on habitual truancy, cannot extend past the end of the school term in which the juvenile turns eighteen years of age.

CONCLUSION

¶ 19. A dispositional order, after a JIPS petition based solely upon habitual truancy, cannot endure beyond the school term during which the juvenile reaches eighteen years of age. We therefore reverse the orders of the circuit court holding otherwise.

By the Court. — Orders reversed.

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


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Oscar A. Rash, Defendant-Appellant.

    Court of Appeals

      No. 02-0841-CR.

      Oral argument January 7, 2003.

    Decided January 28, 2003.

    2003 WI App 32
    (Also reported in 659 N.W.2d 189.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Peter M. Koneazny, assistant state public defender of Milwaukee. There was oral argument by Diana M. Felsmann, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general. There was oral argument by Lara M. Herman.

    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 4-22-03.

   FINE, J.

¶ 1. Oscar A. Rash appeals from judgments entered on his guilty pleas convicting him of armed robbery with threat of use of a dangerous weapon, see Wis. Stat. § 943.32(2), operating a motor vehicle to flee a law-enforcement officer, see Wis. Stat. § 346.04(3), and possessing a firearm although a felon, see Wis. Stat. § 941.29(2). He also appeals from the trial court's order denying his motion for postconviction relief. His only challenge on appeal is to the trial court's order that he pay $640 in restitution. He contends that he did not cause the victim's loss and thus cannot be made to pay for it. We affirm.

I.

¶ 2. The victim of the armed robbery to which Rash pled guilty, Erick Leon Ivory, testified at the postconviction hearing that he was walking to his locked car in a supermarket parking lot when Rash intercepted him and with a gun and an accomplice forced him into a van in which there may have been a third accomplice. Before being accosted, Ivory had used a remote-key to unlock his car doors. Rash and his accomplices drove off with Ivory and robbed him. Ivory's car was left behind unlocked. Someone other than Rash or his accomplices took it from the parking lot.

¶ 3. Twenty to thirty minutes after Ivory's abduction, police found Ivory's car — it was damaged and property in it had been taken. The State asked the trial court to make Rash pay restitution for the damage, even though it conceded that it had no evidence that Ivory's car was either taken or entered by Rash or Rash's accomplices. The sentencing court ordered restitution, concluding erroneously that "one or more of the defendants," that is Rash or an accomplice, "were in [Ivory's] vehicle" and that, accordingly, the damage to Ivory's car and the "loss of property" from Ivory's car were "directly related to" Ivory's abduction and his being' robbed. The postconviction court upheld the sentencing court's order, but on a different ground: namely, that Rash's abduction of Ivory left Ivory's car vulnerable to theft and damage, and that the resulting damage was thus "a clear consequence" of what Rash had done. We agree.

II.

¶ 4. Wisconsin Stat. § 973.20(lr) & (2) provide that a trial court "shall order the defendant to make full or partial restitution... [i]f a crime considered at sentencing resulted in damage to or loss or destruction of property." The issue presented by this appeal is whether Rash may be forced to pay for damage and loss caused by someone else when it is reasonable to conclude that there would have been no loss or damage if Rash had not unlawfully abducted Ivory from the parking lot, leaving Ivory's car unlocked and vulnerable. We hold that the restitution order was proper.

¶ 5. A trial court's assessment of restitution is within its discretion; whether a restitution order comports with the statute, however, is subject to our de novo review. State v. Canady, 2000 WI App 87, ¶ 6, 234 Wis. 2d 261, 266, 610 N.W.2d 147, 149; Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 233, 568 N.W.2d 31, 34 (Ct. App. 1997) (application of statute is a question of law). But see Canady, 2000 WI App 87 at ¶ 12, 234 Wis. 2d at 268, 610 N.W.2d at 150 (in trial court's discretion whether there is sufficient nexus between the defendant's criminal conduct and damage for which restitution is ordered).

¶ 6. "Before restitution can be ordered" under Wis. Stat. § 973.20(2) there must be "a causal nexus" between the "crime considered at sentencing" and the damage. Canady, 2000 WI App 87 at ¶ 9, 234 Wis. 2d at 267, 610 N.W.2d at 149. "In proving causation, a victim must show that the defendant's criminal activity was a 'substantial factor' in causing damage. The defendant's actions must be the 'precipitating cause of the injury' and the harm must have resulted from 'the natural consequence[s] of the actions.'" Id., 2000 WI App 87 at ¶ 9, 234 Wis. 2d at 267, 610 N.W.2d at 150 (quoted sources omitted).

¶ 7. Canady upheld a restitution order for damage caused by a police officer attempting to take Ca-nady, who was charged with both burglary and resisting arrest, into custody. Id., 2000 WI App 87 at ¶¶ 11-12, 234 Wis. 2d at 268-269, 610 N.W.2d at 150. A police officer arresting Canady thought that a pry bar in Canady's jacket could be used as a weapon and threw it out of Canady's reach; the pry bar struck and broke a glass door-pane. Id., 2000 WI App 87 at ¶¶ 2, 11, 234 Wis. 2d at 265, 268, 610 N.W.2d at 148-149, 150. Upholding the trial court's order that Canady pay for the broken window, Canady noted that the requisite " 'precipitating cause'" did not mean that the defendant must have caused directly or even "intended or expected" the damage encompassed by the restitution order; it is sufficient if the defendant's "actions were a substantial factor" in causing the damage in a "but for" sense. Id., 2000 WI App 87 at ¶¶ 9, 12, 234 Wis. 2d at 267, 268, 610 N.W.2d at 150 (quoted source omitted). Thus, "precipitating cause" merely means that the defendant's criminal act set into motion events that resulted in the damage or injury. "The phrase 'substantial factor' denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 458-459, 267 N.W.2d 652, 654 (1978). For example, in the civil-law context, the first tortfeasor is responsible for subsequent harm caused by those rendering aid to the injured plaintiff, irrespective of whether those rendering aid were negligent, Butzow v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 286-287, 187 N.W.2d 349, 351-352 (1971), or by subsequent tortfeasors whose contribution to the plaintiffs ultimate damages or injuries was a "foreseeable consequence" of the original tortfeasor's negligence, Johnson v. Heintz, 61 Wis. 2d 585, 600-602, 213 N.W.2d 85, 93-94 (1973).

¶ 8. The word "crime" as used in Wis. Stat. § 973.20(2) " 'encompass[es] all facts and reasonable inferences concerning the defendant's activity related to the 'crime' for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.'" State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104, 109 (Ct. App. 1999) (quoted source omitted, emphasis in quoted source). Thus, in ordering restitution, the sentencing court must "take[] a defendant's entire course of conduct into consideration" and not "break down the defendant's conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim's damages." Ibid, (quoted source omitted). Additionally, a criminal cannot escape responsibility for restitution simply because he or she was not aware of the damage. Id., 230 Wis. 2d at 336-337, 602 N.W.2d at 110; cf. Butzow, 51 Wis. 2d at 287, 187 N.W.2d at 352 ("fors-eeability" is element of negligence not of "causation"). Given the legislative concern that victims be made whole insofar as that is possible, a victim's burden of proof to show causation is certainly not higher than would be a plaintiffs comparable burden in a civil case, and, although we do not have to decide it here, may be substantially lower. See 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"). Here, it was reasonable for the postconviction court to conclude that but for Rash's crime, Ivory's car would not have been taken and damaged and that Ivory's property in the car would not have been stolen.

By the Court. — Judgment and order affirmed.

       Rash pled guilty before and was sentenced by the Honorable Laurence C. Gram, reserve judge. The Honorable Daniel L. Konkol denied Rash's motion for postconviction relief.

       As we have noted, the sentencing court based the restitution order on an inaccurate analysis of the facts presented to it at sentencing. This error was rectified by the postconviction court, which, as we have seen, held that Ivory would not have suffered the loss encompassed by the restitution order if Rash had not taken Ivory from the parking lot in the course of the armed robbery. See State v. Holt, 128. Wis. 2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985) (trial court order will be upheld if record supports result irrespective of the trial court's rationale).


author: NETTESHEIM, P.J.

text:
    Courtney Nunez, a minor, by her Guardian ad Litem, Theodore Poulos, Pamela Nunez and David Nunez, Plaintiffs-Appellants, v. American Family Mutual Insurance, Daniel R. Rathke, and State Farm Fire and Casualty Company, Defendants-Respondents, WEA Insurance Corporation, Defendant.
    Court of Appeals

      No. 02-1041.

      Submitted on briefs December 12, 2002.

    Decided January 29, 2003.

    2003 WI App 35
    (Also reported in 659 N.W.2d 171.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief oí James C. Gallanis oí Aiken & Scoptur, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Frederick J. Smith of
      Peterson, Johnson & Murray, S.C. of Milwaukee, and Kevin A. Christensen oiLieb & Katt, S.C. of Milwaukee.
    Before Nettesheim, EJ., Brown and Snyder, JJ.

       Petition to review denied 4-22-03.

   NETTESHEIM, P.J.

¶ 1. Courtney Nunez, a minor, was injured when she jumped from the tailgate of a pickup truck in the destaging area of a parade sanctioned by the village of Jackson. Courtney, by her guardian ad litem, and her parents, Famela and David Nunez, brought this negligence action against Daniel R. Rathke, the driver of the pickup truck. A jury determined that Rathke was not negligent.

¶ 2. The Nunezes argue that the trial court erred in entering judgment on the verdict after denying their motion to change the jury's answer that Rathke was not negligent. The Nunezes assert that Rathke was negligent as a matter of law for transporting children under the age of sixteen years on the tailgate of his pickup truck in violation of Wis. Stat. § 346.922 (1999-2000), a safety statute. We agree with the Nunezes that § 346.922 is a safety statute. However, we disagree with the Nunezes that the statute operated to make Rathke negligent as a matter of law. Instead, we conclude that the destaging area of a parade falls under an exception to § 346.922, which excludes from liability those persons operating a vehicle in a parade sanctioned by a local municipality. We therefore affirm the judgment dismissing the Nunezes' complaint.

FACTS

¶ 3. On June 8, 1997, Courtney participated in the "Action in Jackson" parade sanctioned by the village of Jackson. Courtney was involved with a float sponsored by Morning Star Lutheran Church. Daniel Rathke operated the pickup truck that pulled Morning Star's float.

¶ 4. The parade route began on Main Street and Industrial Drive in Jackson. It proceeded east to Ridge-way Drive, north to Georgetown Drive, and west to Jackson Drive. After proceeding north on Jackson Drive, the parade route ended at the entrance of Jackson Park.

¶ 5. During the course of the parade, Courtney walked alongside the float, handing out candy and church literature. At some point when the Rathke truck stopped on Georgetown Drive, Courtney and a friend climbed onto and stood on the open tailgate of the truck. The float proceeded through the remainder of the parade route to the Jackson Park entrance. From the entrance and further on Jackson Drive, there was a lot of activity relating to the end of the parade, with floats and charter buses parked in the area and people packing up. Rathke stopped briefly at the park entrance and spoke with parade officials about where to park the float. Rathke indicated that he was going to proceed north on Jackson Drive. Approximately 200 to 300 feet later, Rathke stopped the truck again and started to exit the vehicle when another adult told him that they were ready to proceed. Shortly after the truck started moving again, Courtney jumped from the tailgate and the float rolled over her causing her serious injury.

¶ 6. On February 3, 2000, the Nunezes filed this action against Rathke and Morning Star Lutheran Church and their respective liability insurers (Rathke). The Nunezes alleged that Rathke was negligent as a matter of law for transporting children under the age of sixteen years in the tailgate of a pickup truck contrary to Wis. Stat. § 346.922.

¶ 7. On November 19, 2001, the trial court filed an order approving the parties' request that only the issue of liability be tried on January 7, 2002, and requiring counsel to submit a joint proposal on jury instructions and verdict forms. On December 20, 2001, the parties filed a joint submission of the proposed special verdict and a joint submission of proposed jury instructions.

¶ 8. Prior to trial, the Nunezes filed a motion in limine requesting the trial court to find Rathke causally negligent as a matter of law pursuant to Wis. Stat. § 346.922. In discussing the application of § 346.922, the parties addressed the exception to that statute which permits the transport of children under the age of sixteen years in an open cargo area if the vehicle is being operated "in a parade sanctioned by a local municipality." The parties agreed that Courtney's injuries occurred in the destaging area of the parade. The trial court denied the Nunezes' request to find Rathke negligent as a matter of law. Instead, the court ruled that the jury would need to decide whether the destag-ing area of the parade fell within the exception to § 346.922.

¶ 9. At the end of the second day of trial, before the case was submitted to the jury, the trial court discussed the jury instructions with the parties. Consistent with its earlier ruling, the court determined that the safety statute, Wis. Stat. § 346.922, applied to the facts of the case and that the jury would need to determine whether Courtney's injury occurred during a "parade" such that it fell under the exception.

¶ 10. Over the objection of both parties, the trial court added the following emphasized language to the parties' proposed jury instruction on the safety statute:

Wisconsin Statute § 346.922 is a safety statute that reads:
No person may operate upon a highway, a motor vehicle, such as that of Mr. Rathke's, when any child under the age of 16 years is in an open cargo area of the motor vehicle. However, an exception to this law exists when a person is operating such a vehicle in a parade sanctioned by a local municipality.
When determining whether Mr. Rathke was negli- . gent in this case, you may consider whether the vehicle was being operated in a parade sanctioned by a local municipality.
If you find that this law was violated, you must find Mr. Rathke negligent. If you find that this statute was not violated, you must determine whether or not Mr. Rathke was otherwise negligent.

¶ 11. On January 8, 2002, the jury returned a special verdict determining that Rathke was not negligent, that Courtney was 100% contributorily negligent, and that such contributory negligence was the cause of her injury.

¶ 12. On January 25, 2002, the Nunezes filed motions after verdict requesting the trial court to change the jury's answer regarding Rathke's negligence. Consistent with their pretrial motion, the Nun-ezes argued that Rathke was "negligent per se because he violated [Wis. Stat. § 346.922] which is a safety statute." The trial court denied their motion and entered judgment in favor of Rathke and the liability insurers.

¶ 13. The Nunezes appeal.

DISCUSSION

The Application of Wis. Stat. § 346.922

¶ 14. At the outset we address Rathke's argument that Wis. Stat. § 346.922 is not a safety statute as applied to the facts of this case. Rathke reasons that § 346.922 does not apply here because Courtney jumped from the open cargo area of the truck. We reject Rathke's argument.

¶ 15. "A safety statute is a legislative enactment designed to protect a specified class of persons from a particular type of harm." Totsky v. Riteway Bus Serv., Inc., 2000 WI 29, ¶ 24, 233 Wis. 2d 371, 607 N.W.2d 637 (citation omitted). "Negligence per se arises from the violation of a safety statute if three requirements are met: 1) the safety statute was designed to prevent the harm inflicted, 2) the person injured was in a protected class, and 3) the legislature has expressed its intent that the statutory section serve as a basis for the imposition of civil liability." Id. at ¶ 25. Whether Wis. Stat. § 346.922 applies to the facts of this case presents a question of law that we review de novo. See State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989) (the application of a statute to undisputed facts is a question of law that we review de novo).

¶ 16. Rathke does not dispute that Courtney was in the class protected by the statute or that the legislature intended to impose civil liability on those who violate it. Rather, Rathke argues that the harm in this case is not the particular type of harm that Wis. Stat. § 346.922 is intended to prevent, i.e., children falling or being accidentally thrown from vehicles or injured in abrupt stops. Rathke asserts that because Courtney jumped from the back of the pickup truck, she is not entitled to the protections of § 346.922.

¶ 17. Rathke relies on the supreme court's holding in Gonzalez v. City of Franklin, 137 Wis. 2d 109, 403 N.W.2d 747 (1987), in support of its contention that safety statutes are to be narrowly construed and the class of protected persons is to be limited to the intendment of the statute. While we agree that Gonzalez states this proposition, we nevertheless find Rathke's reliance on Gonzalez misplaced.

¶ 18. In Gonzalez, a seven-year-old boy, Miguel, detonated a firework that he found at a park owned by the City of Franklin and which was likely left at the park following a City sponsored fireworks display. Id. at 115-16. Miguel believed the firework to be a smoke bomb. Id. at 115. Miguel attempted to ignite the firework without his parents' knowledge. Id. However, when his father noticed what Miguel was doing, he shouted for the children to stay clear and reached for the firework to throw it out of the way. Id. at 115-16. The firework, exploded, injuring Miguel and his father. Id. at 116. They sued the City.

¶ 19. In response, the City sought to use the fireworks safety statute defensively, arguing that Miguel and his father were negligent under the fireworks safety statute which made it unlawful for any person to

[s]ell, expose or offer for sale, use, keep, discharge or explode any firecrackers, blank cartridges, toy pistols or cannons, toy canes or cannons in which explosives are used, contrivances using explosive caps or cartridges, sparklers, display wheels,... sky rockets, Roman candles aerial salutes, American or Chinese bombs or other fireworks of like construction ....

Id. at 136 n.10 (citing Wis. Stat. § 167.10 (1981-82)). The supreme court rejected the City's argument, stating:

Smoke bombs are not specifically covered by the statute, and there is no support to establish, beyond a reasonable doubt, that the statute was meant to apply .... [I]t has not been established that the statute was meant to be applicable to the peculiar "hazard of detonation by a seven-year-old boy of a firework which he believes to be a smoke bomb and which he discovered only through the negligence of the party claiming the protection or benefit of the statute."

Gonzales, 137 Wis. 2d at 137 (citation omitted).

¶ 20. The situation in this case differs significantly. First, the Nunezes do not invoke the statute defensively. Second, unlike the fireworks safety statute in Gonzalez, Wis. Stat. § 346.922(1) does not list or limit the causes of the harms it aims to prevent. Rather, it provides generally that "no person may operate upon a highway a motor truck. .. when any child under the age of 16 years is in an open cargo area of the motor truck." Sec. 346.922(1). Here, Rathke was transporting Courtney, a child under the age of sixteen years, in the cargo area of his pickup truck. Courtney was injured when she jumped from the pickup truck while it was moving.

¶ 21. We conclude that Wis. Stat. § 346.922 is intended to prevent any and all harms that could result from a child being transported in the open cargo area of a vehicle including those resulting from a child's immature decision to jump from the cargo area of a moving vehicle. We therefore reject Rathke's contention that § 346.922 does not apply in this case.

The Application of the Parade Exception

¶ 22. We next address whether the exception to Wis. Stat. § 346.922 which prohibits transporting children under the age of sixteen years in the cargo area of a motor vehicle applies to the destaging area of a parade sanctioned by a municipality. The exception, set forth at § 346.922(2)(b), provides that the prohibition does not apply to a "person operating a motor truck in a parade sanctioned by a local municipality."

¶ 23. As noted above, the trial court addressed this question to the jury, albeit not via a question in the special verdict. Instead, the court instructed the jury about the provisions of Wis. Stat. § 346.922 and then directed the jury to find Rathke negligent if it determined that Rathke had violated the statute. Since the jury found Rathke not negligent, it follows that the jury determined that he did not violate the statute. However, the core issue in this case was not a factual dispute as to whether the accident occurred in the destaging area of the parade. To the contrary, the parties agreed that the accident occurred in the destaging area and the evidence abundantly supports that agreement. Instead, the core issue was the legal question of whether the "parade" exception set forth in § 346.922(2)(b) applied to the destaging area of the parade. That issue presented a question of law. See DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985) (issues of statutory construction are questions of law subject to de novo review). Therefore, this was á question that the trial court could have answered as a matter of law. We now address that issue.

¶ 24. When we interpret a statute, our goal is to ascertain and give effect to the intent of the legislature. Williams v. City of. Lake Geneva, 2002 WI App 95, ¶ 7, 253 Wis. 2d 618, 643 N.W.2d 864. The first step in construing a statute is to look to the language of the statute itself and attempt to interpret it based on the plain meaning of its terms. Gasper v. Parbs, 2001 WI App 259, ¶ 8, 249 Wis. 2d 106, 637 N.W.2d 399. If the language of the statute is clear and unambiguous, we generally apply it to the facts at hand without further analysis. Id. However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results. Id. We presume that "the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute." Id. (citation omitted).

¶ 25. The Nunezes argue that the language of Wis. Stat. § 346.922(2)(b), excepting vehicles operating "in a parade," is unambiguous and permits for only one interpretation: that the exception applies only if an injury occurs during the course of an actual parade route. We disagree.

¶ 26. The legislature undoubtedly understood that a well-organized parade requires a staging and destaging area. It is clear from the language of the exception that the legislature intended for children to be able to participate in parades without visiting the statute's otherwise strict liability on the operators of vehicles transporting children in such events. Bearing this statutory goal in mind, the Nunezes' proposed reading of the parade exception to include only the actual parade route is unreasonable because it would cause the exception itself to create a hazardous situation. Under the Nunezes' interpretation, if an operator wanted to avoid liability under the statute, the child would have to exit the cargo area while the parade was still in progress and before the parade entered into the destaging area. Given that the statute is clearly intended to protect children, such a narrow reading of the term "parade" would run contrary to its purpose. We therefore conclude that the only reasonable interpretation of the exception to Wis. Stat. § 346.922(1) is to include in the definition of "parade" both the staging and destaging areas. As such, Rathke would have been entitled to dismissal of this claim as a matter of law had he put that request to the trial court, and the matter should not have been submitted to the jury.

¶ 27. The fact that the matter was put to the jury proved to be of no consequence since the jury ultimately determined what the trial court could have earlier declared — that Rathke was not liable under the statute.

CONCLUSION

¶ 28. We conclude that the destaging area of a parade falls under the exception to Wis. Stat. § 346.922. As such, Rathke was entitled to a judgment of dismissal as a matter of law under the facts of this case. Therefore, we affirm the judgment of dismissal even though it was premised upon the jury's verdict rather than on any trial court ruling construing the statute.

By the Court. — Judgment affirmed.

       WISCONSIN Stat. § 346.922 provides in relevant part:
      Transporting children in cargo areas of motor trucks. (1)
      Notwithstanding s. 346.92, no person may operate upon a highway a motor truck having a gross weight of 10,000 pounds or less when any child under the age of 16 years is in an open cargo area of the motor truck.
      (2) Subsection (1) does not apply to any of the following:
      (b) A person operating a motor truck in a parade sanctioned by a local municipality.
      All statutory references are to the 1999-2000 version unless otherwise indicated.

       By stipulation of all parties, Morning Star was dismissed from the action prior to trial, but its insurer remained in the case as a defendant.