author:
JON P. WILCOX, J.
      ANN WALSH BRADLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Cherise A. Raflik, Defendant-Appellant.
    Supreme Court

      No. 00-1086-CR.

      Oral argument September 12, 2001.

    Decided December 4, 2001.

    2001 WI 129
    (Also reported in 636 N.W.2d 690.)

      For the defendant-appellant there were briefs by Michael J. Fitzgerald, Dean A. Strang, and Fitzgerald & Strang, S.C., Milwaukee, and Michael J. Fitzgerald, Craig W. Albee, and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and oral argument by Michael J. Fitzgerald.

      For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   JON P. WILCOX, J.

¶ 1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d), and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.

¶ 2. The State charged Cherise Raflik with seven felony drug counts, including possession of tetrahydro-cannabinol (THC) with intent to deliver, drug tax stamp violations, possession of psilocybin with intent to deliver, and keeping a drug house. Raflik moved to suppress all of the evidence seized from her home because the State had not made a contemporaneous record of the telephonic search warrant application in accordance with § 968.12(3)(d). After conducting a hearing, the Washington County Circuit Court, Leo F. Schlaefer, Circuit Court Judge, denied Raflik's motion. Raflik pleaded guilty to misdemeanor possession of THC, misdemeanor possession of psilocybin, and felony keeping a drug house. On appeal, Raflik challenged the denial of her motion to suppress, and the court of appeals certified the case to this court.

H — 1

¶ 3. The relevant facts in this case are undisputed. On August 4, 1998, shortly after 6:00 p.m;, Detective Douglas Kocher, of the Washington County Sheriffs Department, met Assistant District Attorney Todd Martens at the Germantown Police Station, where they were going to apply for a telephonic search warrant. Kocher sought to seize drugs and drug paraphernalia from the residence and garage of Cherise Raflik in the town of Jackson.

¶ 4. Kocher and Martens placed a call from the Germantown Police Department to Washington County Circuit Court Judge Annette Ziegler. Both Martens and Kocher thought the phone line they were using was a recorded line. Martens had brought along his own recording equipment, but was assured by local police that he did not need to use his equipment because the phone line was already being recorded. Thus, Martens did not hook up his independent recording device.

¶ 5. Judge Ziegler took testimony over the phone from Detective Kocher and found that there was probable cause to issue the search warrant. During the telephone conversation, Detective Kocher and Judge Ziegler each filled out a search warrant document with identical language that specified the location of the property and the items to he seized. The search warrant was executed that evening, and law enforcement officials seized drugs, drug paraphernalia, and cash from Raflik's house and garage.

¶ 6. The next morning, Martens contacted the Germantown Police Department to obtain the recording of the search warrant application. The department informed Martens that there had been a mistake and that the call had been made on a non-recorded phone line. There was no evidence of improper behavior on the part of Martens, Kocher, or the Germantown Police.

¶ 7. At about 11:15 a.m. that same day, Martens notified Judge Ziegler of the mistake. Judge Ziegler directed Martens to locate Detective Kocher and to have Kocher review his notes so he would be prepared to give testimony about the previous evening's warrant application. Martens contacted Kocher, and Kocher prepared an affidavit, which recounted the warrant application of the night before. Kocher's affidavit was prepared at approximately 12:15 p.m. on August 5th.

¶ 8. At 1:23 p.m. that day, Judge Ziegler convened an ex parte hearing with Kocher and Martens present. Judge Ziegler explained on the record that they were "trying to, as contemporaneously as possible, provide a record of what exactly the testimony was that. . . supported the issuance of the search warrant." At the hearing, Detective Kocher testified that he had met Martens the night before at the Germantown Police Station, where they had called Judge Ziegler for a telephonic search warrant. Kocher testified that he thought the line they had used was recorded, and that he had found out that morning that the conversation, in fact, had not been recorded.

¶ 9. Kocher went on to testify to the contents of his warrant application from the previous evening. Kocher recounted the location and description of the home in question, the fact that Raflik lived there, and the details of the investigation that led to his requesting the warrant.

¶ 10. When Martens concluded his questioning, Judge Ziegler proceeded to ask Kocher several questions. First, Judge Ziegler asked Kocher about his conversations with Raflik's landlord, Steven Wydirek. Judge Ziegler also asked Kocher how he had made the inference that there might have been drugs in the house after seeing marijuana-like substances in the garage. Finally, the judge confirmed Wydirek's reliability. Each of the questions asked by Judge Ziegler was phrased in a leading format, that allowed Kocher to answer either "yes" or "correct." After she finished questioning Kocher, Judge Ziegler found, from the facts presented and the inferences drawn from those facts, that there was probable cause to support the search warrant, and that they had adequately recreated the record of the warrant application. The affidavit Kocher had drafted that afternoon was also attached to the record.

¶ 11. Based on the evidence found when the search warrant was executed, Raflik was charged with possession of THC with intent to deliver, contrary to Wis. Stat. § 961.41(1m)(h)2; three drug tax stamp violations, contrary to Wis. Stat. §§ 139.87, 139.88 and 139.95; manufacture of THC, contrary to Wis. Stat. § 961.41(1)(h)2; possession of psilocybin with intent to deliver, contrary to Wis. Stat. § 961.41(1m)(g)1; and maintaining a drug house, contrary to Wis. Stat. § 961.42. Raflik filed a motion to suppress the evidence found pursuant to the warrant on the grounds that the State had failed to make a contemporaneous record of the warrant application, in violation of Wis. Stat. § 968.12(3), the Fourth Amendment of the U.S. Constitution, and Article I, Section 11 of the Wisconsin Constitution.

¶ 12. In a hearing on the suppression motion, Washington County Circuit Court Judge Leo Schlaefer ruled that the evidence seized pursuant to the search warrant should not be suppressed. The court noted that the State had exercised its best efforts to recreate the record within 24 hours of the original warrant application and that the record indicated that Detective Kocher's testimony at the hearing was consistent with the testimony he had offered the previous evening. The trial court found that Raflik's substantial rights had not been prejudiced, and that, under the totality of the circumstances, the failure to record the warrant application was a technical irregularity under Wis. Stat. § 968.22. The court held that suppression was not a proper remedy and denied Raflik's motion.

¶ 13. Raflik pleaded guilty to the amended charges of misdemeanor possession of THC, misdemeanor possession of psilocybin, and felony keeping a drug house. On appeal, Raflik challenged her conviction on the grounds that the trial court erred when it had denied her motion to dismiss. The court of appeals, recognizing this as a case of first impression in Wisconsin, certified the appeal to this court.

II

¶ 14. Several constitutional rights are significant to this case: the right to be free from unreasonable search and seizure, protected by the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution; the due process right to meaningful judicial review, protected by the Fourteenth Amendment to the U.S. Constitution; and the right to a meaningful appeal, protected by Article I, Section 21 of the Wisconsin Constitution. The State concedes that Wis. Stat. § 968.12(3)(d) was violated when no contemporaneous recording of the warrant application was made. However, the State maintains that the failure to record the application only affects Raflik's right to have a meaningful record for the purposes of appeal, and that Raflik's right to a meaningful appeal was protected when the warrant application was reconstructed. Raf-lik, on the other hand, argues that the failure of the State to meet the requirements of §968.12 is not merely a technical irregularity, but instead renders the warrant constitutionally inadequate. Raflik concludes that such a significant violation warrants suppression.

¶ 15. The suppression of evidence is not a constitutional right, but rather it is a judge-made rule used to deter misconduct by law enforcement officials. Stone v. Powell, 428 U.S. 465, 482 (1976). Suppression is only required when evidence has been obtained in violation of a defendant's constitutional rights, State v. Hochman, 2 Wis. 2d 410, 419, 86 N.W.2d 446, 451 (1957), or if a statute specifically provides for the suppression remedy. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 439-440, 187 N.W.2d 354 (1971); see also State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999); State v. Verkuylen, 120 Wis. 2d 59, 61, 352 N.W.2d 668 (Ct. App. 1984). There is no specific statutory remedy provided for the failure to record a telephonic search warrant application. See Wis. Stat. § 968.12. Thus, the only question that remains is whether the failure to record the warrant application and the subsequent reconstruction of the application violated a constitutional right.

¶ 16. We are presented with three potential constitutional violations which could warrant suppression. First, as Raflik contends, the failure to record the warrant application may be a grievous enough error that the Fourth Amendment was violated in its own right. Second, if the record cannot be reconstructed, or if the record was not adequately reconstructed, there would be no probable cause on the record to support the warrant and the Fourth Amendment's probable cause requirement would arguably not be met. Finally, if the record was not adequately reconstructed, Raflik's Fourteenth Amendment due process right to meaningful judicial review and her right to a meaningful appeal under Article I, Section 21 of the Wisconsin Constitution may have been violated. We now address each of these concerns.

¶ 17. We conclude that the Fourth Amendment was not directly violated in this case. The Fourth Amendment to the U.S. Constitution states:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Here, Detective Kocher met all of the requirements of the Fourth Amendment during his warrant application. The parties agree that probable cause existed to issue the warrant, that a neutral and detached magistrate issued the warrant, and that the warrant described with specificity the places to be searched and the items to be seized. Nothing in the Fourth Amendment requires a contemporaneous recording of the application.

¶ 18. Raflik points to a number of decisions in support of her position that the mere failure to record the warrant application is of a constitutional magnitude. In State v. Myers, 815 P.2d 761 (Wash. 1991), the Washington Supreme Court addressed a telephonic warrant that was, by accident, never recorded as required under that state's rule. See Wash. Super. Ct. Crim. R. 2.3(c) (2001). The day after the warrant had been executed (which was also the day after the warrant application had been made), the officer learned that the application had not been recorded and wrote down what he recalled from the day prior. Over three months later, at the suppression hearing, the defendant challenged the adequacy of the warrant application. At the hearing, the issuing judge testified that he did not have an independent recollection of the events surrounding the issuance of the warrant.

¶ 19. The Washington State Supreme Court determined that the failure to record the warrant application was a "gross deviation" from the rule. Myers, 815 P.2d at 768. The court went on to state that reconstruction of the application might have been acceptable if it did not "impair the reviewing court's ability to ascertain what the magistrate considered when he issued the warrant." Id. The court noted that the only evidence of the telephonic affidavit was the police officer's testimony, offered four months after the original application, and the officer's report made after the warrant was executed, and after it was discovered that there was no recording. The court held that, under the circumstances, the reconstruction made it "impossible to accurately review what the judge considered" when he issued the warrant. Id.

¶ 20. Raflik emphasizes the policies cited by the Myers court that support strict adherence to statutory rules regarding recording telephonic warrants: facilitating judicial review, compelling respect for and observance of the constitutional guarantees of the Fourth Amendment, preserving judicial integrity, and removing any hint of misconduct or bad faith by the prosecutor or the police. Id. at 767.

¶ 21. We recognize the importance of these policies, but we find that they are not necessarily compromised by allowing a warrant application to be reconstructed. Judicial integrity, the right to judicial review, and the observance of Fourth Amendment guarantees can be adequately protected when a careful reconstruction of a warrant application is made. We also recognize the defendant's concerns about police misconduct and the possibility of police acting in bad faith. In cases where the failure to record a warrant application is the result of misconduct by police, reconstruction may not be an adequate option, and suppression may be appropriate. However, there was no evidence of police misconduct in this case, so we do not reach the question here.

¶ 22. Raflik also directs our attention to City of Minneapolis v. Cook, 498 N.W.2d 17 (Minn. 1993), along with a number of federal cases that have examined situations where all or part of a warrant application was not recorded. Like Myers and the present case, Cook involved a telephonic warrant application that was not recorded in conformance with a statute. In Cook, the Minnesota Supreme Court criticized the failure to record the warrant application, particularly because there were no contemporaneous notes relied upon by the officer in applying for the warrant, and no notes taken by the officer as he made his application. Id. at 22. Because there was no "substantially contemporaneous record.. . made" the court suppressed the evidence that arose from the warrant. Id.

¶ 23. Likewise, in United States v. Hittle, 575 F.2d 799 (10th Cir. 1978), the court found a search warrant inadequate when there was no oral testimony and an inadequate affidavit. The court held that the probable cause requirement of the Fourth Amendment would be "significantly weakened if a court can rely on the recollection of those concerned to support a probable cause finding long after the search warrant has been issued." Id. at 802.

¶ 24. Still, Raflik admits that most federal courts have not seen fit to suppress evidence because of a failure to record some or all of the warrant application. See, e.g., United States v. Richardson, 943 F.2d 547 (5th Cir. 1991) (finding suppression inappropriate when the magistrate and prosecutor were unaware that the recording equipment did not work, and where no record was made); United States v. Rome, 809 F.2d 665 (10th Cir. 1987) (refusing to suppress evidence when the preliminary discussions between the magistrate and the agent were not recorded); United States v. Loyd, 721 F.2d 331 (11th Cir. 1983) (per curiam) (holding that suppression is not necessary when the magistrate failed to certify the accuracy of the recorded transcript); United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981) (declining to suppress evidence when the oath was not recorded); United States v. Johnson, 641 F.2d 652 (9th Cir. 1980) (refusing to suppress evidence when the oath was not administered until after the oral affidavit).

¶ 25. Raflik differentiates these cases from her own in several ways. First, Raflik notes that in her case, the police bore the responsibility for recording the conversation, as opposed to the magistrate, who is responsible for recording a telephonic warrant application in a federal case. See Fed. R. Crim. P. 41(2)(D) (2000). Second, Raflik's case featured no contemporaneous recording at all, as opposed to the majority of the federal cases where only part of the warrant application was unrecorded. Third, the time between the application and reconstruction, 18 hours in this case, was less than that in most cases — a fact which, Raflik concedes, benefits the State's position. Finally, Raflik suggests that the judge lost at least some appearance of neutrality when she asked Kocher leading questions at the reconstruction hearing.

¶ 26. We do not deny the importance of each of these factors, but none of them directly affects Raflik's Fourth Amendment right to be free from an unreasonable search or seizure, and none of them warrants suppression in its own right. Each of the factors Raflik identifies, however, may be relevant to the question of whether an adequate reconstruction of the record can be made consistent with Raflik's right to a meaningful appeal, and her due process right to meaningful judicial review of the warrant process. In particular, the length of the unrecorded segment and the time between the application and reconstruction can be taken into consideration by the trial court when determining the adequacy of the reconstruction. See infra ¶¶ 41-43. With regard to the possibility of the issuing judge becoming a prosecution witness, we recognize that it is not an ideal situation. In the reconstruction of a warrant application, however, we find that a limited amount of judicial involvement is appropriate as long as the judge's participation is not excessive and the participation does not compromise the judge's neutral and detached role. See infra ¶¶ 44-48.

¶ 27. Raflik also asks us to consider Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). Glodowski is a Prohibition-era case where the sheriff of Portage County applied for a warrant to seize illicit liquor from the defendant. No record was made of the probable cause offered by the sheriff before the warrant was issued. This court held that suppression of the evidence found pursuant to the warrant was appropriate based on the fact that no record had been kept. The court emphasized that a record must be made "at or before the time that the judicial act was performed." Id. at 271. Raflik argues that the core of the Glodowski holding is that the failure to contemporaneously record a warrant application weakens the Fourth Amendment's probable cause requirement. We disagree.

¶ 28. In Glodowski, this court stated that "[t]he essential thing is that proof be reduced to permanent form and made a part of the record, which may be transmitted to the reviewing court." Id. at 272. The record of the warrant application "may consist of the sworn complaint, of affidavits, or the sworn testimony taken in shorthand... or of testimony reduced to longhand ... or of a combination of all these forms of proof." Id. We find that the focus of Glodowski was primarily on the ability of a reviewing court to assess the record, and not on the sufficiency of the warrant itself. After discussing the probable cause requirement, the Glodowski court stated, "there must be a record upon which the reviewing court may determine whether there was proof of any facts before the magistrate which would support the finding of probable cause." Id. at 271. We find that the concerns raised in Glodowski can be adequately protected by the careful reconstruction of a warrant application, as outlined below.

¶ 29. Finally, we note that several courts have invoked the "good faith exception" of United States v. Leon, 468 U.S. 897 (1984), under circumstances similar to those here. See, e.g., United States v. Chaar, 137 F.3d 359, 363-64 (6th Cir. 1998); United States v. Richardson, 943 F.2d 547, 549-51 (5th Cir. 1991). However, since we find that the reconstruction in this case was sufficient to protect Raflik's constitutional rights, we do not address the good faith exception here.

H — I HH HH

¶ 30. Although we find that Raflik's Fourth Amendment rights were not directly violated by the accidental failure to record the warrant application, the failure to record the application does affect Raflik's right to meaningful judicial review of the warrant process, and her right to a meaningful appeal. The right to appeal is absolute under the Wisconsin Constitution: "Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law." Wis. Const. art. I, § 21(1). We have interpreted the right to appeal to require that the appeal be meaningful. State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987).

¶ 31. Stemming from the right to a meaningful appeal is a criminal defendant's right to a full transcript of the proceedings. Id. Providing a defendant with a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. In some cases, however, a functionally-equivalent substitute of the transcript may be provided if the substitute accurately portrays what happened during the course of the trial. Id.

¶ 32. Wisconsin Stat. § (Rule) 809.15(3) provides, in relevant part, that "[a] party who believes the record, including the transcript of the reporter's notes, is defective or does not accurately reflect what occurred in the trial court may move the court in which the record is located to correct the record." This court has recognized that reconstruction is an acceptable method for correcting a missing portion of a trial record. Perry, 136 Wis. 2d at 100-01. Whether such a reconstruction is adequate is a question that is reviewed by the court ab initio. Id. at 97. The determination is one that is ultimately within the procedural supervisory jurisdiction of this court. Id.

¶ 33. The court of appeals first addressed the adequacy of a record reconstruction in State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985). In DeLeon, the court reporter had lost some of her notes, comprising about fifteen minutes of trial testimony. The trial court attempted to reconstruct the missing portion by having the witnesses recalled. DeLeon then challenged the new record, claiming that it had not been properly reconstructed.

¶ 34. The court of appeals noted that Wis. Stat. § (Rule) 809.15(3) allowed correction of a trial record, but that it did not set out any guidelines by which an adequate reconstruction could be made. DeLeon, 127 Wis. 2d at 77-78. The court therefore laid out a procedure by which parties could reconstruct a missing portion of a trial record.

¶ 35. As the court of appeals explained, the trial court must first make a facial inquiry as to whether the missing portion of the record can be reconstructed, weighing such variables as the length of the missing transcript, the availability of witnesses, and the amount of time elapsed between the trial and the reconstruction. Id. at 81. A trial court may find that a portion of a trial record cannot be reconstructed as a matter of law, in which case a new trial should be ordered. Id.

¶ 36. If the trial court finds that reconstruction is possible, the parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation, or by an amendment-counteramendment process similar to the one laid out in Federal Rule of Appellate Procedure 10(c). Id. at 80-81. If any disputes remain, those disputes will be settled by the trial court. If the reconstruction reaches this stage, the trial court may rely on its own recollection and notes or materials from the parties as an aid to reconstruction. The trial court is also allowed to conduct hearings or consult with counsel. Id. at 81-82. Every step of this procedure is reviewable on appeal, and appellate courts should review errors in the reconstruction itself under the "clearly erroneous" standard. Id. at 82.

¶ 37. This court expanded on DeLeon in State v. Perry, 136 Wis. 2d 92. Perry involved a criminal defendant who sought to reconstruct a portion of his trial record. Before a transcript of the trial was made, the notes of the trial were lost in the mail, en route from the primary court reporter to a substitute court reporter. When the postal service finally located the notes, they were in poor condition and were incomplete. Many of the notes could be pieced together, but large portions of the transcript were still missing, including significant portions of the final two days of the eight-day jury trial. The trial court reviewed what was left of the record and found that, although it was not perfect, the record was at least " 'sufficient... to provide the appellate court with a basis of reviewing the entire record Id. at 97.

¶ 38. On review, this court determined that the trial record was insufficient as a matter of law. Id. at 108. The court noted that the proper procedure for reconstruction had been articulated in DeLeon, and thereby adopted the methodology used by the DeLeon court. This court went on to determine that the reconstruction of a record can protect a defendant's right to meaningful review when it meets certain criteria. Expanding on the factors in DeLeon, this court held that when assessing the adequacy of a reconstruction, a court should consider "the nature of the case, the nature of the claim of error, the passage of time from the date a transcript originally was, or should have been, prepared, and whether the trial was to the court or to a jury." Id. at 98. Because the trial court did not take these factors into account at all, the Perry court deemed the reconstruction inadequate. Id. at 108.

¶ 39.. We hold that the reconstruction procedures articulated in Perry and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant's right to a meaningful appeal, as well as the defendant's ability to challenge the admission of evidence in a suppression hearing.

¶ 40. The Perry court pointed out that when challenging the sufficiency of a record, the appellant has the burden to demonstrate that there is a "colorable need" for the missing portion of the record. Id. at 108. The appellant is not required to show prejudice, but the error cannot be so trivial that it is clearly harmless. Id. Given the pronouncement of the legislature in § 968.12 and the importance of the Fourth Amendment rights at stake in the issuance of a search warrant, we think that most, if not all, situations where a warrant application is inadvertently not recorded will require reconstruction if the defendant's due process right and right to a meaningful appeal are to be protected. Without an appropriate reconstruction, there would be no probable cause on the record to support the warrant, which would arguably be grounds for suppression.

¶ 41. When reconstructing a warrant application, many of the same factors announced by the Perry and DeLeon courts should be taken into consideration, particularly the length of time between the application and the reconstruction, and the length of the reconstructed segment in relation to the entire warrant request. In addition to these factors, a trial court should also consider if there were any contemporaneous or nearly contemporaneous written documents, such as notes, that were used to reconstruct the record, the availability of witnesses used to reconstruct the record, and the complexity of the segment reconstructed.

¶ 42. In the present case, we find enough evidence in the record to demonstrate that Raflik's due process right and her right to a meaningful appeal have been protected. The length of the reconstructed section was relatively short and only one witness, Detective Kocher, was required to testify. Even though the entire application was unrecorded, the facts that provided probable cause were uncomplicated and easily remembered by Kocher. Many of the facts could be corroborated both by Kocher's affidavit and by the warrant documents filled in separately but simultaneously by Detective Kocher and Judge Ziegler during the original telephonic application.

¶ 43. Perhaps most importantly, the application was reconstructed only 18 hours after the actual application, when the events of the previous night were still fresh in the minds of all of the participants. Immediately after Assistant District Attorney Martens discovered that no recording had been made, he contacted the magistrate and Detective Kocher, and they prepared notes about the telephonic application the night before. This is in sharp contrast to a case like Myers, where almost four months had elapsed between the application and the reconstruction. See Myers, 815 P.2d at 768. Finally, all of the participants in the original warrant application were available to the trial court when it reconstructed the record.

¶ 44. Raflik expresses concern over Judge Ziegler's participation in the reconstruction hearing, and particularly over the fact that the judge asked Detective Kocher a series of leading questions. Raflik argues that allowing a judge to question a witness is inappropriate, particularly when it is done in a leading manner, because the judge will be inclined to ask questions that tend to support the judge's decision to issue the warrant. Raflik also suggests that the prospect of judges testifying is unseemly because it puts a judge into the role of prosecution witness and raises the specter that the judge might not act in a neutral and detached manner.

¶ 45. We do not find Judge Ziegler's actions inappropriate in this case. Although we do not necessarily encourage active judicial participation in the reconstruction of a warrant application, a limited amount of participation is appropriate as long as the judge's participation is relevant to the proceeding, is not excessive, and does not compromise the judge's neutral and detached role. As this court noted in Perry, a judge is allowed to resolve disputes during the reconstruction of a trial record based on the judge's "recollection, trial notes, consultation with counsel, affidavits, or recall of witnesses." Perry, 136 Wis. 2d at 102. We see no reason to deviate from that pronouncement for the reconstruction of a warrant application.

¶ 46. Several factors may even make a judge's participation more appropriate during the reconstruction of a warrant application than it might be during the reconstruction of a trial segment. A judge's recollections may, as in this case, corroborate the fact that the judge had been told certain information during the original application. This is particularly helpful given the ex parte nature of the warrant application process, and the limited number of participants in the application process. In Myers, the Washington Supreme Court actually required a neutral person, such as the magistrate or court clerk, to testily whenever reconstruction is attempted because the judge or clerk has no stake in the outcome. Myers, 815 P.2d at 768.

¶ 47. As an alternative to preventing the judge from testifying, Raflik asks us at least to establish a rule that would prevent a judge from asking leading questions during a reconstruction hearing. We decline to do so. The nature of the warrant application process sometimes requires a magistrate to clarify or question the law enforcement officer's basis for probable cause. In such a case, a leading question from the magistrate may be appropriate. We see no reason to prevent this practice, which is perfectly acceptable during the actual warrant application, from carrying over to a reconstruction hearing, as long as the judge's participation is not excessive and the judge's neutral and detached role is not compromised.

¶ 48. Here, we find that Judge Ziegler's participation did not cross the line. The questions asked by-Judge Ziegler went no further than to clarify several points addressed by Detective Kocher and helped confirm that Kocher had, in fact, testified to the judge the previous evening about the nexus between the house and the garage, and about the reliability of the informants. The judge's questions did not amount to excessive testimony, and did not compromise the integrity of the proceeding.

¶ 49. We also reject Raflik's request to make the reconstruction of a warrant application an adversarial hearing. In a situation like Perry, where a portion of the trial record is reconstructed, the participation of both parties is appropriate, and even required out of fairness, because the proceedings being reconstructed were originally adversarial. Perry, 136 Wis. 2d at 102. If a portion of a criminal trial is being reconstructed, the defendant may also have a Sixth Amendment right to counsel. Id. However, the same concerns do not exist for a warrant application.

¶ 50. The Sixth Amendment right to counsel generally attaches when either a criminal complaint or a warrant for arrest is filed. Kirby v. Illinois, 406 U.S. 682, 688-89 (1972); State v. Harris, 199 Wis. 2d 227, 235 n.3, 544 N.W.2d 545 (1996). At the time a search warrant is issued, there is technically no defendant, and the suspect does not have a right to counsel. This should be apparent from the fact that the telephonic warrant application itself is ex parte. When applying for a search warrant, the only participants need to be the law enforcement officials applying for the search warrant and a neutral magistrate. As long as reconstruction of the application is done before the suspect is charged, there is no constitutional requirement that the hearing be adversarial, and we decline to impose such a requirement.

¶ 51. Although we do not reach the question here, we note that if the reconstruction of a warrant application were to take place after the suspect is charged, the defendant may have the right to have counsel present at the reconstruction hearing. We also note that, even though a warrant application may be reconstructed in an ex parte hearing, the defendant retains the protection of an adversarial proceeding when challenging the adequacy of the reconstruction at a motion for suppression and on appeal. Douglas v. California, 372 U.S. 353, 356-58 (1963); Powell v. Alabama, 287 U.S. 45, 57 (1932).

¶ 52. In adopting this procedure for the reconstruction of a telephonic search warrant application, we sound a note of caution. The preferred method for making a record of a telephonic warrant application, as articulated by the legislature in Wis. Stat. § 968.12(3)(d), is through contemporaneous recording, not reconstruction. Where police intentionally or recklessly disregard the statute, or where the failure to record the application significantly prejudices the defendant, reconstruction might not be sufficient to protect the defendant's rights.

IV

¶ 53. As a final matter, we address the burden of proof for reconstruction. The State argues that when a warrant application is reconstructed, the trial court must find, by a preponderance of the evidence, that the reconstruction adequately replaces the missing portion of the record. In the State's view, because the controlling burden of proof at a suppression hearing should be no greater than a proof by the preponderance of the evidence, see United States v. Matlock, 415 U.S. 164, 177 n.14 (1974), the reconstruction of the application, which is likewise challenged at a suppression hearing, will only carry a burden of proof of a preponderance of the evidence. Raflik contends that because the reconstruction of a warrant application is a portion of a larger criminal proceeding, the proper burden of proof is beyond a reasonable doubt. We find the State's view persuasive.

¶ 54. The DeLeon and Perry courts both held that in a reconstruction hearing, the judge must be satisfied that the reconstructed record accurately reflects what actually happened to the same level required in the proceeding itself. Perry, 136 Wis. 2d at 99; DeLeon, 127 Wis. 2d at 82. That is, to reconstruct a portion of a criminal trial, the trial judge must find that the record has been adequately reconstructed beyond a reasonable doubt. Perry, 136 Wis. 2d at 99. Likewise, to reconstruct a portion of a civil trial, the court must be satisfied that the record has been reconstructed to the level appropriate for that trial. DeLeon, 127 Wis. 2d at 82.

¶ 55. The proceeding in question here is a warrant application. Because a warrant application is not a fact that constitutes an element of the charged crime, there is no requirement that the contents of a warrant application be proved beyond a reasonable doubt. See Lego v. Twomey, 404 U.S. 477, 486-87 (1972); In re Winship, 397 U.S. 358, 364 (1970). Additionally, the admissibility of evidence may be determined by a less stringent standard without affecting the reliability or constitutionality of a verdict. Lego, 404 U.S. at 487. This court has held that a preponderance of the evidence standard is generally appropriate in a suppression hearing. See, e.g., State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999) ("[T]he State must establish by a preponderance of the evidence whether a custodial interrogation took place."); State v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996) ("[T]he State must prove the sufficiency of the Miranda warnings and the knowing and intelligent waiver of Miranda rights by a preponderance of the evidence.").

¶ 56. Following the holdings of DeLeon and Perry, the trial court must find that a reconstruction is accurate to the same level of proof as the proceeding that is being reconstructed. Because a motion for suppression of evidence would be judged by a preponderance of the evidence standard, we hold that the reconstruction of a warrant application should be judged by that standard as well.

¶ 57. Applying this standard, we find that the trial court had ample evidence to conclude that the State met its burden of proof in reconstructing the warrant application, and in doing so, protected Raflik's right to a meaningful appeal and her due process right to meaningful judicial review. Because we find that the record was properly reconstructed, and because the parties agree that there was sufficient probable cause to support the warrant, the evidence seized pursuant to the warrant should not be suppressed, and Raflik's convictions must be upheld.

By the Court. — The order of the circuit court is affirmed.

ANN WALSH BRADLEY, J.

¶ 58. 0dissenting). While I agree with the majority that there may be instances when a warrant application proceeding can be reconstructed, I cannot agree with the reconstruction procedure the majority has adopted. The majority's approach fails to protect adequately a defendant's right to meaningful review and undermines the warrant judge's role as a neutral and detached decision maker.

¶ 59. In analogizing to State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985), the majority sidesteps the import of the significant differences between the facts in those cases and the facts at hand. Reconstruction of an ex parte proceeding requires additional safeguards if review is to remain meaningful and if the warrant judge is to remain neutral and detached.

¶ 60. Even the State acknowledges that it would be better to have additional safeguards that the majority has now rejected. I would require procedures different from the majority's that would serve as the additional safeguards necessary in the reconstruction of an ex parte proceeding. Because those safeguards were not present here, I conclude that Rafhk's right to meaningful review was violated and that the evidence against her should have been suppressed. Accordingly, I respectfully dissent.

HH

¶ 61. I begin by highlighting the principal reasons that the majority's application of Perry and DeLeon gives me pause. First, both Perry and DeLeon arose in contexts where only a portion of a full transcript was missing. In DeLeon, 127 Wis. 2d at 76, approximately 15 minutes of testimony was unavailable from the transcript of a first-degree sexual assault trial. The court of appeals agreed with the circuit court that the testimony could be reconstructed adequately. See id. at 83. In Perry, 136 Wis. 2d at 96, 107, "significant portions" of the transcript for two of eight days of a trial were missing. We agreed with the court of appeals in Perry that the missing portions could not be adequately reconstructed, and we concluded "as a matter of law that the transcript is insufficient." Id. at 104, 108-109.

¶ 62. As the majority recognizes in form if not in substance, one of the factors for circuit courts to consider in determining whether reconstruction is appropriate is "the length of the missing portion in relation to the entire transcript." Perry, 136 Wis. 2d at 101. Here, it is the full transcript of a proceeding that is unavailable, yet the majority has concluded that it may be reconstructed.

¶ 63. Second, Perry and DeLeon involved the reconstruction of adversarial proceedings. In DeLeon, the court of appeals explained that the reconstruction procedure would also be adversarial:

[T]he parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation or by the amendment and counteramendment procedure outlined in Fed. R. App. R 10(c). Then, if any dispute remains as to what occurred, the difference shall be submitted to and settled by the trial court.

127 Wis. 2d at 79. This court in Perry approved of this methodology. 136 Wis. 2d at 102. The procedure contemplated by both Perry and DeLeon is an adversarial reconstruction of an adversarial proceeding. In contrast, here both the proceeding to be reconstructed as well as the reconstruction procedure adopted by the majority are ex parte.

¶ 64. Thus, Raflik's case presents a situation significantly different from those in Perry and DeLeon. Given the standards the majority has adopted, I am not convinced that an ex parte proceeding reconstructing an ex parte proceeding will sufficiently protect a defendant's right to meaningful review. In DeLeon, 127 Wis. 2d at 82, the court of appeals recognized that reconstruction is "not a normal fact-finding process but is actually a process for refreshing recollection." Therefore, the court concluded, procedural safeguards are necessary to protect an appellant's right to meaningful review. Id. In Perry and DeLeon, one of those safeguards was the defense's ability to challenge, as a first-hand witness of the trial, the State's recollection of the trial events. Here, the parties do not stand on such a level playing field, and the majority has failed to build in additional safeguards to restore the equilibrium.

¶ 65. My hesitation at the majority's decision is compounded by a close examination of this court's opinion in Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). The Glodowski court rested its decision, at least in part, on principles of meaningful review. Id. at 271. Additionally, Glodowski is more instructive than either Perry or DeLeon because it involved the impermissible supplementation of a warrant application.

¶ 66. In Glodowski, a sheriff testified before a magistrate in order to establish probable cause for a warrant. 196 Wis. at 266. After the execution of the warrant, the magistrate testified at a suppression hearing as to "further statements made by the sheriff under oath before the warrant was issued," apparently to bolster the finding of probable cause. Id. The court admitted the- evidence, and the defendant was convicted. Id. This court reversed, explaining that a warrant judge is prohibited from contributing to the record after the probable cause determination has been made:

Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made... .
Mature deliberation satisfies the court that State v. Blumenstein, 186 Wis. 428, 202 N.W. 684, and Hiller v. State, 190 Wis. 369, 208 N.W. 260, must be overruled in so far as these cases hold that the reviewing court may supplement the record made by the magistrate by taking oral testimony to disclose the proof that was in fact offered before the warrant was issued.

Id. at 271-72. We concluded:

Upon hearing the motion to suppress, the court should not have considered the proof of additional testimony given by the sheriff before the warrant issued or the proof offered by the defendant, but should have considered only the record made before the search warrant was issued.

Id. at 272.

¶ 67. The majority fails to acknowledge this language because the majority cannot reconcile Glodowski with its analysis. When asked at oral argument whether a decision adopting its position would require this court to overrule any cases, the State answered: "I think Glodowski presents the problem for the State." That is because Glodowski forbids a warrant judge from supplementing the record after the warrant was executed, which is precisely what has occurred in this case.

II

¶ 68. This Glodowski prohibition leads into yet another concern I have with the majority's methodology. The majority condones a warrant judge's active participation in reconstruction, thereby undermining the neutrality of the judge. Although the majority begins its discussion of active judicial participation by saying it does not encourage it, the majority then backtracks by explaining that some judicial participation is acceptable as long as it is not "excessive." Majority op. at ¶ 45. The majority adds that a judge's participation is "more appropriate during the reconstruction of a warrant application than it might be during the reconstruction of a trial segment." Majority op. at ¶ 46.

¶ 69. The majority asserts that the judge's testimony is "particularly helpful given the ex parte nature of the warrant application process, and the limited number of participants in the application process." Majority op. at ¶ 46. I, however, conclude that it is exactly these qualities of the warrant application process&emdash;the ex parte nature of the proceeding and the presence of witnesses for only one side&emdash;that demand the strictest caution in reconstructing a warrant appli- cation. I am bothered by the specter of a warrant- issuing judge as the State's star witness at a reconstruc- tion proceeding. As a general rule it will prove difficult for a judge's role as an active participant in a recon- struction hearing to coexist with that judge's role as a neutral and detached decision maker. Asking judges to fill both roles places them in an awkward and unseemly position. ¶ 70. Some of

the judge's questions at the recon- struction hearing in this case raise the Glodowski problem because they provide crucial information that 630 OFFICIAL WISCONSIN REPORTS was not a part of Detective Kocher's affidavit: information supporting the reliability of the informant and information providing a nexus between the location of the search and the location set forth in the affidavit. The search warrant included authorization to search Raflik's house, although Kocher's affidavit stated that he had seen marijuana plants only in an unattached garage and "in an orchard behind the residence." Kocher's affidavit did not provide any particular facts establishing a nexus between Raflik's house and the drug evidence found in the yard and unattached garage. Instead, it was the judge's leading questions that solidified a link between the house and the garage and verified the reliability of Kocher's informant. Yet, the majority concludes that these questions "did not amount to excessive testimony" without telling us what would be excessive. Majority op. at ¶ 48.

( — I hH hH

¶ 71. I would require procedures different from the majority's that would better protect the defendant's right to meaningful review and do less damage to the judge's role as a neutral and detached decision maker. The police investigators, the district attorney, and the judge involved in the warrant application should independently prepare affidavits detailing their recollections of the information in support of probable cause. Because police investigators who applied for the warrant may also have executed it, they should specifically aver whether the information supplied in their affidavits was known to them at the time of the warrant application. As the State acknowledges, this sort of independent reconstruction has support in case law and is preferable to the procedure approved by the majority. See State v. Smith, 941 P.2d 691, 694 (Wash. Ct. App. 1997.)

¶ 72. As the State also advances, if reconstruction is done independently, then the defendant has a meaningful opportunity to challenge the reconstruction at a suppression hearing. At that hearing, a judge other than the judge who issued the warrant would preside. This procedure would better maintain each judge's neutral role, and it is yet another safeguard recommended by the State that the majority does not require.

¶ 73. Finally, I note that although the majority correctly acknowledges that under Perry and DeLeon, a circuit court is to determine that reconstruction is accurate to the "same level of proof as the proceeding that is being reconstructed," the majority nevertheless concludes that the burden the State must meet is a preponderance of the evidence because that is "generally appropriate in a suppression hearing." Majority op. at ¶¶ 55-56 (emphasis added). The proceeding to be reconstructed in this case, however, is a warrant application where the State must establish probable cause. See State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991).

¶ 74. What does the majority mean when it says it agrees with the State that "the trial court must find, by a preponderance of the evidence, that the reconstruction adequately replaces the missing portion of the record"? Majority op. at ¶ 53. How does this burden relate to the requirement that the State show probable cause for a warrant or prove facts beyond a reasonable doubt in a criminal case?

¶ 75. The majority's statement of the burden of proof is deceptively simple. It gives little indication as to how the standard applies when it concludes without explanation that "the trial court had ample evidence to conclude that the State met its burden of proof in reconstructing the warrant application, and in doing so, protected Raflik's right to a meaningful appeal." Majority op. at ¶ 57.

¶ 76. In sum, I do not agree with the majority that Raflik's right to meaningful review was adequately protected by the reconstruction procedures employed. Additional safeguards are necessary when a court attempts by an ex parte proceeding to reconstruct in its entirety another ex parte proceeding. The procedures approved by the majority both compromise a defendant's right to meaningful review and undermine the warrant judge's role as a neutral decision maker. Thus, I would reverse the decision of the court of appeals.

¶ 77. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

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

       We note that the drug tax stamp laws, Wis. Stat. §§ 139.87-.96, were found unconstitutional hy this court in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), an opinion issued over 18 months before the charges in this case were filed. However, because these charges were dismissed they are not at issue here.

       Raflik takes particular issue with the portions of the reconstruction hearing where leading questions by Judge Ziegler provided the nexus between the house and the garage, and where they provided the reliability of the informant. See infra ¶¶ 44-48. This part of the hearing follows:
      COURT: ... I also recall certain testimony of yours where you said that the single car garage is next to, or on this property, or property the landlord has access to.
      KOCHER: Correct. It's attached, or the building adjoins another building that the landlord reserves for his own personal use.
      COURT: The garage?
      KOCHER: Correct.
      COURT: Okay, and you personally observed, through an open door, marijuana-like substances in the garage, right?
      KOCHER: Correct. The main garage door was open.
      COURT: . . . And based on your conversations with the landlord, Mr. Wydirek, did you find him to be someone that was reliable and would have information in this regard?
      KOCHER: Yes, I did.
      COURT: Okay. And so basically you had reason to believe what he was telling you, right?
      KOCHER: That's correct.

        COURT: Okay. And so you think that along with the items you saw in the garage, there will likely he items in the residence.
      KOCHER: That's also correct.

       This court adopted a version of the good faith exception last term in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625.


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J. DIANE S. SYKES, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Thomas Hass, Petitioner, v. Wisconsin Court of Appeals, Mark A. Ramsden, Raelynn Ramsden and Milton R. Ramsden, d/b/a Ramsden Dairy, Respondents.
    Supreme Court

      No. 01-0240-W.

      Oral argument September 14, 2001.

    Decided December 4, 2001.

    2001 WI 128
    (Also reported in 636 N.W.2d 707.)

      For the petitioner a petition was filed by Patricia M. Gibeault, Michael J. Modi and Axley Brynelson, LLP, Madison, and oral argument by Patricia M. Gibeault.

    For the respondent, Wisconsin Court of Appeals, a response was filed by David C. Rice, assistant attorney general.
    For the respondents, Milton, Mark and Raelynn Ramdsen, a response was filed by Robert J. Kasieta and Kasieta Legal Group, LLC, Madison, and oral argument by Robert J. Kasieta.

       Motion for reconsideration denied 1-28-02.

   WILLIAM A. BABLITCH, J.

¶ 1. Petitioner Thomas E. Hass (Hass) seeks an order from this court, pursuant to our constitutional superintending and administrative authority over all lower courts, directing the court of appeals to grant every petition for interlocutory appeal from a circuit court order in which the court denied a motion asserting that a final federal court judgment bars the state court proceeding on issue and claim preclusion grounds. Currently, the court of appeals is afforded discretion in granting such petitions, limited by the criteria for granting review enumerated under Wis. Stat. § 808.03(2)(1999-2000). Hass argues, however, that mandatory review of this and similar petitions is necessary to ensure respect for final federal court judgments, to avoid unnecessary litigation, and to discourage successful federal court litigants from seeking an immediate postjudgment injunction in federal court enjoining the state court from hearing adjudicated issues or claims.

¶ 2. Although Hass has identified valid policy concerns, we conclude that mandatory review of such interlocutory appeals is not required in this case. We are confident that the court of appeals considers, and will continue to consider, these policy concerns in deciding whether to grant such interlocutory appeals.

-HH

¶ 3. In this case, it is the procedural history that is of particular importance for our review, not the underlying facts or causes of action. For this reason, our discussion of the facts and claims is limited.

¶ 4. In February 1997, the Ramsdens filed an action in Portage County Circuit Court against AgriB-ank, Hass, and Farm Credit Services of North Central Wisconsin alleging 13 different claims surrounding the Ramsdens' purchase of a dairy farm from AgriBank. Hass was an employee of AgriBank and was involved in the sale of the property. The Ramsdens' complaint alleged that the property was environmentally contaminated at the time of purchase. The circuit court later dismissed Hass from the action on the ground that, as an agent of AgriBank, he could not be held liable under a negligence theory. The Ramsdens then dismissed their complaint against the remaining defendants without prejudice and appealed Hass's dismissal to the court of appeals.

¶ 5. While the appeal was pending, the Ramsdens filed a second complaint against AgriBank in the St. Croix County Circuit Court. This complaint alleged seven causes of action, including that AgriBank made misrepresentations about the conditions of the farm. AgriBank removed the case to the United States District Court for the Western District of Wisconsin. After significant discovery was conducted, AgriBank filed a motion for summary judgment, which the court granted. The federal district court concluded that the testimony of the Ramsdens' expert lacked scientific reliability and validity and therefore was not admissible as evidence. Without this testimony, the Ramsdens were left without any way of proving their case through expert testimony, and thus, the court dismissed the Ramsdens' action with prejudice. The Ramsdens appealed this judgment to the Court of Appeals for the Seventh Circuit, but later voluntarily dismissed this appeal in exchange for a waiver by AgriBank of recovery of its costs.

¶ 6. While this federal action was pending, the state court of appeals reversed the Portage County Circuit Court's dismissal of Hass and remanded for further proceedings. See Ramsden v. Farm Credit Servs., 223 Wis. 2d 704, 590 N.W.2d 1 (Ct. App. 1998). On remand, after the federal district court's judgment, Hass moved for summary judgment based on claim and issue preclusion, among other grounds. The motion was denied. The court found that the elements were present for claim preclusion, but concluded that fairness considerations led to the conclusion that the Ramsdens' claims should not be barred. The court also held that issue preclusion would not apply because Wisconsin has a different standard for the admissibility of expert testimony than does the federal court. Hass appealed this decision to the state court of appeals.

¶ 7. AgriBank then filed a motion for injunctive relief in the federal district court asking the court to permanently enjoin the state circuit court from further addressing any issues between the Ramsdens and Hass or AgriBank arising from the purchase of the farm property. The federal district court granted the injunction. The court held that the injunction was necessary to protect or effectuate the federal court's judgment. See Ramsden v. AgriBank, 63 F.Supp. 2d 958, 960 (W.D. Wis. 1999). The Ramsdens appealed, and the Seventh Circuit vacated the district court's injunction.

¶ 8. In reaching its decision, the Seventh Circuit examined the Anti-Injunction Act, 28 U.S.C. § 2283, which generally prohibits federal courts from enjoining state court proceedings. The court noted that "[t]he Act is designed to prevent friction between state and federal courts and to protect state court proceedings from federal interference." Ramsden v. AgriBank, 214 F.3d 865, 868 (7th Cir. 2000). However, an exception to the Act — the relitigation exception — allows "a party with a favorable federal judgment to protect that judgment by enjoining repetitive state court proceedings instead of relying on a claim or issue preclusion defense." Id. Nevertheless, the court held that a federal court should not interfere with a state court proceeding where the litigants had first sought a decision in the state court on the preclusive effect of the federal court judgment except in the most extraordinary circumstances. Id. at 871. The court, however, did not find that such circumstances existed. Id. at 872.

¶ 9. After the Seventh Circuit's decision, the state court of appeals denied Hass's petition for interlocutory appeal. Hass then filed a petition for supervisory writ in this court. He seeks an order from this court directing the court of appeals to grant every petition for interlocutory appeal where the issue on appeal is whether a federal court judgment bars a state court proceeding on issue or claim preclusion grounds. The correctness of the circuit court's ruling is not before this court, and therefore, we will not discuss the merits of the circuit court's decision on issue and claim preclusion.

I — I HH

¶ 10. The issue presented in this case is whether this court should exercise its constitutional superintending and administrative authority to direct the court of appeals to accept all petitions for interlocutory appeal where the circuit court has denied a claim that the state court action is barred by a final federal court judgment on issue and claim preclusion grounds. We decline to extend our authority to mandate review in such instances. Instead, based in part on concerns of comity between the state and federal courts, we urge the court of appeals to carefully review such future petitions.

¶ 11. Article VII, Section 3(1) of the Wisconsin Constitution provides that "[t]he supreme court shall have superintending and administrative authority over all courts." Under this power, we may control the course of ordinary litigation in the lower courts of Wisconsin. Arneson v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996). Our application of this power may be as broad and as flexible as necessary to maintain the administration of justice in the courts of this state; however, we do not use such power lightly. Id. at 226. " 'This court will not exercise its superintending power where there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court, or where the conduct of the trial court does not threaten seriously to impose a significant hardship upon a citizen." Id. (quoting McEwen v. Pierce County, 90 Wis. 2d 256, 269-70, 279 N.W.2d 469 (1979)).

¶ 12. The question of whether the court will exercise its superintending authority is one of policy, not power. In re Phelan, 225 Wis. 314, 320, 274 N.W. 411 (1937). " 'The inherent power of this court is shaped, not by prior usage, but by the continuing necessity that this court carry out its function as a supreme court.'" Arneson, 206 Wis. 2d at 231 (quoting In re Kading, 70 Wis. 2d 508, 519, 235 N.W.2d 409 (1975)).

¶ 13. Hass asks that we use our superintending and administrative power to require the court of appeals to accept petitions for interlocutory appeal, like his, involving a nonfinal order that denies granting a motion asserting that the state court proceeding is barred on issue and claim preclusion grounds in light of a final federal court judgment. Such orders are not appealable as of right, but are appealable by permission pursuant to Wis. Stat. § 808.03(2), which states:

(2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;
(b) Protect the petitioner from substantial or irreparable injury; or
(c) Clarify an issue of general importance in the administration of justice.

In reviewing such appeals, the court must also examine whether the defendant has a substantial likelihood of success on the merits. State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991).

¶ 14. In Arneson, 206 Wis. 2d 217, we exercised our superintending and administrative authority to require the court of appeals to grant petitions for interlocutory appeal in which the circuit court had denied a claim of qualified immunity from an action under 42 U.S.C. § 1983, but only if the denial turned on an issue of law. Id. at 219-20. We based our decision on three primary factors. First, we noted that, without mandatory review, a state official would be left with no other adequate remedy on appeal. Id. at 226-27. That is, because qualified immunity is immunity from suit, even if the official won on appeal, the official loses the primary benefit of qualified immunity, which is to avoid the burden of litigation. The official cannot be reimmu-nized on appeal. Second, we noted that a plaintiff may suffer harm if the case proceeds to trial and appeal and it is then determined that the defendant official is not liable for damages because of qualified immunity. Id. at 227. In short, the plaintiff may incur the expense and hardship of full trial and appeal. Third and finally, we held that, if mandatory review is not available, society as a whole incurs social costs associated with such litigation. Id. These costs included " 'distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).

¶ 15. After citing these reasons, we determined that such orders denying a claim of qualified immunity should be immediately appealable because they would always meet the criteria enumerated under Wis. Stat. § 808.03(2)(a) and (b). Id. at 229. We stated:

[W]e determine that immediate interlocutory appeal will protect state officials from the substantial or irreparable injury that will result if the suit is erroneously allowed to proceed. In addition, we conclude that determination of this issue at the early stages of litigation will clarify the proceedings for all parties involved, as well as the public, by resolving it "before extensive measures are taken to defend the public officials."

Id. (citations omitted). We also noted that requiring review of such orders was in accordance with a majority of jurisdictions and with Mitchell v. Forsyth, 472 U.S. 511 (1985). Id. at 229-230.

¶ 16. Indeed, as Hass argues, there are some policy concerns that are implicated by both interlocutory appeals involving a claim of qualified immunity and interlocutory appeals involving preclusive effect of a final federal judgment. Specifically, in both instances, denial of the petition may result in unnecessary litigation if the court of appeals later overturns the circuit court's decision on postjudgment appeal. Further, in both instances, if the petition is denied, the defendant may lose the benefit of the claim. The benefit and underlying purpose of both issue and claim preclusion is ensuring finality (that is, enforcing repose) and foreclosing relitigation. See Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 235, 601 N.W.2d 627 (1999); Lindas v. Cady, 183 Wis. 2d 547, 553-54, 515 N.W.2d 458 (1994). This benefit is lost if the petition for interlocutory appeal is denied and the matter proceeds to trial, even if the circuit court's decision is later reversed on postjudgment appeal.

¶ 17. Despite these similarities, however, key differences exist. To begin with, as we noted in Arneson, the failure to grant interlocutory appeals on a claim of qualified immunity invokes important social costs. Such costs are often absent in interlocutory appeals involving issue and claim preclusion because private litigants, not public officials, are often involved. Thus, costs to society are not presented; only costs associated with the expense and burden of litigation are involved. Indeed, such private litigants often must incur such costs when the court denies an interlocutory appeal of a nonfinal order (for example, motion to dismiss or for summary judgment), even though this nonfinal order may be overturned later on appeal. Such costs, although significant, are less substantial than costs to society. In addition, unlike the interlocutory appeals at issue in Arneson, there is no persuasive authority from the United States Supreme Court or any other jurisdiction to support the conclusion that such appeals require mandatory review. For these reasons, our holding in Arneson is distinguishable and does not require use of our superintending and administrative authority in this case.

¶ 18. Instead, Hass's case more closely resembles State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified per curiam, 94 Wis. 2d 97a, 292 N.W.2d 348 (1980). In that case, we declined to use our superintending and administrative authority to require the court of appeals to grant every nonfinal order denying a motion to dismiss based on double jeopardy. Id. at 97a n.1. Instead, we concluded that the review of such orders was appropriately left to the discretion of the court of appeals pursuant to Wis. Stat. § 808.03(2). Id. Despite this conclusion, we nevertheless urged the court of appeals to be careful in exercising that discretion. Id. at 97a-97b. We stated that "[g]iven the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from 'substantial or irreparable injury,'— one of the three criteria for testing the appropriateness of review under sec. 808.03(2)." Id. at 97b.

¶ 19. Indeed, claim preclusion is similar to double jeopardy. Both serve to preserve the finality of judgments and to protect defendants from subsequent litigation or prosecution. See State v. Canon, 2001 WI 11, ¶ 8, 241 Wis. 2d 164, 622 N.W.2d 270; Sopha, 230 Wis. 2d at 233, 235. Issue preclusion has also been regarded as embodied in the constitutional guarantees of double jeopardy. See Canon, 2001 WI 11, ¶¶ 11-13; State v. Vassos, 218 Wis. 2d 330, 342, 579 N.W.2d 35 (1998). In light of these similarities, we conclude that Jenich provides a basis for our decision in this case.

¶ 20. We declined to exercise our superintending and administrative authority in Jenich. We did so even though, as in this case, denials of such petitions for interlocutory appeal present concerns of both unnecessary litigation and the loss of any benefit of the claim. Certainly, double jeopardy, because of its basis in the Constitution, presents a more compelling basis for exercising our superintending and administrative authority than issue and claim preclusion. See 5 Wayne R. LaFave et al., Criminal Procedure, § 25.1(b) (2d ed. 1999) (noting that the Double Jeopardy Clause was established primarily to protect defendants from pros-ecutorial oppression). Following Jenich, we conclude that use of our superintending and administrative authority is not required in this case.

¶ 21. Hass argues, however, that concerns of comity between the state and federal court also support the use of our superintending and administrative authority in this case. Comity is harmed, he contends, because, under the current law, a state court litigant who prevails, in federal court will not seek dismissal of any subsequent state court action on grounds of issue or claim preclusion in the state court. Instead, such litigants will seek an injunction in federal court to enjoin the state court action. Hass argues that the end result will be federal court interference into state court proceedings and such interference will be lessened only if federal courts are assured that the state court of appeals will automatically review any circuit court decision denying preclusive effect to a final federal judgment.

¶ 22. In Ramsden, 214 F.3d at 872, the Seventh Circuit determined that the ruling in Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), created this potential for conflict between the state and federal courts. The Ramsden court noted that, according to Parsons, once a litigant raises a claim preclusion defense in state court and the state court rules on it, the federal courts are bound by that determination. Id. at 868-69. Thus, in light of the deference that federal courts give to state court rulings on issue and claim preclusion, litigants who obtain a favorable federal court judgment will no longer wait for the state court ruling; instead, they will rush back to federal court for an injunction to prevent the state court ruling. Id. at 872.

¶ 23. We recognize that friction between the state and federal courts may occur under such circumstances. However, requiring the court of appeals to review every appeal confronting this issue will not eliminate such friction. Indeed, despite mandatory review, state court litigants who have obtained a favorable final judgment in federal court may still seek a federal court injunction to prevent any state court action. Thus, mandatory review serves comity only to the extent that it provides an additional determination on the preclusion claim. Therefore, such review would not promote comity to the same extent as the action taken by the court in Ramsden, 214 F.3d 865, where the court avoided direct friction between the courts by limiting the federal court's ability to permanently enjoin state court action. Certainly, we recognize that federal court judgments should be given their full effect in state courts. We are confident, however, that our state circuit courts will adequately provide full and fair resolution of such claims of issue and claim preclusion. Litigants may then seek appeal of such nonfinal orders under Wis. Stat. § 808.03(2).

¶ 24. Further, any concerns of comity are outweighed by our concerns of maintaining a proper working relationship between this court and the court of appeals. The parties and the court of appeals have not provided us with determinative information on the potential effects of such mandatory review on the court's docket. However, we are mindful that such automatic grants of interlocutory appeals are generally disfavored because they cause delay in litigation and increase the burden of the court of appeals.

¶ 25. At the same time, however, we are not unmindful of the advantages of granting such petitions for interlocutory appeals. Indeed, if review is granted, unnecessary litigation may be avoided; issues affecting the ultimate determination of the action may be decided early on; and comity may be promoted. In previous cases, Jenich in particular, we have urged the court of appeals to be careful in exercising discretion when reviewing these petitions. See Jenich, 94 Wis. 2d at 97a-97b; see also State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis. 2d 98, 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105d, 292 N.W.2d 114 (1980) (encouraging the granting of leave to appeal in cases where juvenile court jurisdiction is waived). We have done so while noting that granting such appeals will often be necessary to protect the claimant from substantial or irreparable injury. See Jenich, 94 Wis. 2d at 97b (also citing serious constitutional concerns); State ex rel. A.E., 94 Wis. 2d at 105d. As previously stated, we are confident that the court of appeals considers, and will continue to consider, the valid policy concerns raised by Hass in this case in deciding whether to grant such interlocutory appeals.

HH j.

¶ 26. In sum, Hass's request for an order is denied. Following Jenich, we will not exercise our superintending and administrative authority in this case to require the court of appeals to accept all petitions for interlocutory appeal in which the circuit court denied a motion asserting that a final federal judgment bars the state court proceeding based on issue or claim preclusion grounds.

By the Court. — The petition for supervisory writ is denied.

DIANE S. SYKES, J.

¶ 27. (dissenting). I respectfully dissent. I agree with the majority that our superintending authority over the lower courts under Article VII, Section 3(1) of the Wisconsin Constitution is not invoked lightly. Arneson v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996). However, considerations of federal-state court comity weigh heavily in favor of its exercise in this instance.

¶ 28. I would direct that the court of appeals grant interlocutory review of all nonfinal circuit court orders declining to give preclusive effect to federal court judgments. Federalism and the orderly functioning of our dual court system would be best served by this gesture of procedural respect in the state courts for federal court judgments.

¶ 29. As noted by the majority, in Ramsden v. AgriBank, 214 F.3d 865 (7th Cir. 2000), the federal court litigation related to this case, the United States Court of Appeals for the Seventh Circuit held that a federal court generally should not issue an injunction against state court proceedings to protect a prior federal court judgment under the Relitigation Exception to the Anti-Injunction Act where a state court has expressly declined to give the federal court judgment preclusive effect. Relying on the United States Supreme Court's decision in Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), the federal appellate court noted that "[b]ecause the relitigation exception bears on the delicate relationship between state and federal courts, strict timing requirements cabin its invocation." Ramsden, 214 F.3d at 868.

¶ 30. The court then considered the federal court's interest in finality and protection of its own judgments against concerns of "comityD and federalism that must restrain a federal court when asked to enjoin a state court proceeding." Id. at 869 (quoting Mitchum v. Foster, 407 U.S. 225, 243 (1972)). The court concluded that once a state court has explicitly rejected a preclusion defense premised on a prior federal court judgment, "the affront of federal court intervention stripping the state court of power to continue is greatly magnified." Ramsden, 214 F.3d at 870. Under these circumstances, the court held, "the interests in preventing possible relitigation [embodied in the Relitigation Exception to the Anti-Injunction Act] are . . . generally-outweighed by the heightened comity concerns except in the most extraordinary circumstances." Id. at 871.

¶ 31. The same concerns for federalism and comity animate the question presented in this court. What measure of procedural respect do the state courts owe to federal court judgments? Without commenting on the substantive merits of the preclusion defense in this case, I conclude that federal-state comity and the "delicate relationship between state and federal courts" require that all nonfinal circuit court orders declining to give preclusive effect to federal court judgments be immediately appealable.

¶ 32. As noted by the majority, in Arneson, this court held that the court of appeals must always grant interlocutory review of nonfinal circuit court orders denying qualified immunity to government officials. Arneson, 206 Wis. 2d at 229. The court concluded that a circuit court order rejecting a qualified immunity defense will always satisfy the first and second statutory criteria for discretionary review, viz, that immediate appeal will materially advance the termination of the litigation or clarify further proceedings, or protect the appealing party from substantial or irreparable injury. Id.; Wis. Stat. § 808.03(2)(a) and (b). As discussed by the majority, this conclusion was based on the fact that the individual and societal benefits of qualified immunity would largely be lost if immediate appeal were unavailable. Id. at 225-227.

¶ 33. The same is true in this context. The private litigant and the public at large share an interest in the finality of judgments, the avoidance of repetitive litigation in different courts (with the possibility of conflicting results), and the prevention of friction between state and federal courts. These interests would be seriously compromised if state court orders declining to give preclusive effect to federal court judgments were not immediately appealable.

¶ 34. The value of a federal court judgment would be substantially diminished if the individual holding that judgment is forced to undergo relitigation in state court before being allowed to appeal an allegedly erroneous rejection of a preclusion defense based upon the federal court judgment. Unnecessary, repetitive litigation may be avoided by immediate interlocutory appeal. For these reasons, circuit court orders declining to give preclusive effect to federal court judgments — like orders denying qualified governmental immunity — will always satisfy the first two statutory criteria for interlocutory appeal.

¶ 35. But the individual judgment-holder's interests are not the only interests at stake. Broader systemic concerns are implicated here. A policy that provides the procedural protection of immediate interlocutory appeal would advance the reciprocal respect owed by state and federal courts to each other's judgments and help avoid conflict between the state and federal judicial systems.

¶ 36. The Seventh Circuit's decision in Ramsden was premised on a policy of restraint and sensitivity to considerations of federal-state court comity. It established a rule of non-interference in ongoing state court proceedings — even where the law would otherwise allow an injunction to protect a federal court judgment — in deference to the judgments of the state courts where those courts have expressly ruled on preclusion issues.

¶ 37. Relying again on Parsons Steel, the Rams-den court said that, absent extraordinary circumstances, "Challenges to the correctness of a state court's determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system." Ramsden, 214 F.3d at 872, quoting Parsons Steel, 474 U.S. at 525. The court specifically noted the availability of interlocutory review under Wis. Stat. § 808.03(2) as a means of correcting a mistaken rejection of a preclusion defense based upon a federal court judgment. Id. at n.3.

¶ 38. We should demonstrate similar restraint and sensitivity to considerations of federal-state court comity by allowing automatic interlocutory appeal under these circumstances. In declining to do so, the majority cites State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified per curiam, 94 Wis. 2d 97a, 292 N.W.2d 348 (1980), a double jeopardy case. Jenich, however, provides little illumination of the issue presented in this case.

¶ 39. The court's original opinion in Jenich was split: three members of the court concluded that an order denying a motion to dismiss on double jeopardy grounds was a final order immediately appealable; two members of the court concluded it was a nonfinal order that invariably met the criteria for discretionary review, and, therefore, the court of appeals should always grant review as a matter of course; and two members of the court concluded that it was a nonfinal order subject only to review at the court of appeals' discretion. Id. at 81-82.

¶ 40. That opinion was later reconsidered, and the per curiam opinion on reconsideration modified the split opinion and held that a denial of a motion to dismiss on double jeopardy grounds was a nonfinal order subject only to discretionary interlocutory review. Id. at 97a-b. The court cautioned, however, that the court of appeals should "be careful in exercising that discretion" because of the "serious constitutional questions raised by claims of double jeopardy." Id.

¶ 41. In a footnote to the per curiam opinion on reconsideration, the court declined, without explanation, to invoke its superintending authority to require the court of appeals to hear all permissive appeals from orders rejecting double jeopardy defenses. Id. There was no discussion of the matter whatsoever, except in a concurrence to the per curiam opinion. Id. at 97d-98 (Abrahamson, J., concurring). As such, Jenich provides little analytical support for the majority's conclusion in this case, except perhaps by way of extrapolation from the court's non-discussion of the issue in a footnote.

¶ 42. In my judgment, considerations of federal-state court comity are enough to tip the scales in favor of exercising our constitutional superintending authority to require interlocutory review of nonfinal circuit court orders declining to give preclusive effect to federal court judgments. It does no damage to the relationship between this court and the court of appeals to do so, as there is no evidence that it will cause a significant increase in the court of appeals' docket.

¶ 43. It is, however, detrimental to the relationship between the state and federal courts to deny the procedural protection of interlocutory appeal when a circuit court has declined, perhaps erroneously, to give preclusive effect to a federal court judgment. Accordingly, I respectfully dissent.

¶ 44. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

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

       28 U.S.C. § 2283 (1999).


author:
      PER CURIAM,
      SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Respondent, v. David W. Oakley, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-3328-CR.

      Filed November 23, 2001.

    2001 WI 123
    (Also reported in 635 N.W.2d 760.)
   PER CURIAM,

¶ 1. (on motion for reconsideration). David W. Oakley, defendant-appellant-petitioner, moves this court for reconsideration of its opinion in State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200. Oakley contends that this court misconstrued significant facts in applying the holding to the facts in this case. Since that is not correct, the motion for reconsideration is denied without costs.

¶ 2. Even though the motion for reconsideration is denied, we find it appropriate now to withdraw the following language from the third sentence in paragraph 3," — where one of the victims was his own child", and the following language from the third sentence in paragraph 14: "his own child and". Justice William A. Bablitch withdraws the sixth sentence in paragraph 33 from his concurrence: "He has abused at least one of them."

¶ 3. To the extent the majority opinion requires clarification, we emphasize that the holding was based on extraordinary circumstances. The facts presented to this court demonstrate that this case is not about a person's inability to pay child support. Rather, the exceptional circumstances outlined show an intentional unwillingness to pay child support by a man with a prior criminal record. The exceptional circumstances of this case include, among other things, that Oakley was in arrears in support of his nine children in excess of $25,000.00, and that Oakley had three convictions, and four read-ins, for intentional refusal to pay child support, in violation of Wis. Stat. § 948.22. Under such circumstances, the probation condition is not over-broad. Furthermore, the probation condition is reasonably related to the goal of rehabilitation, and is narrowly tailored to serve the compelling state interest in requiring parents to support their children.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 4. (concurring). Although I was in the dissent in this opinion, I agree that the motion for reconsideration should be denied. But I conclude that the per curiam opinion is not an adequate response to the motion.

¶ 5. David Oakley explicitly states that he does not seek "reconsideration of the novel legal holding adopted by the Court — viz., that a court may in certain extraordinary circumstances condition a defendant's probation on his not having children unless certain prerequisites are met."

¶ 6. Rather, Oakley's motion for reconsideration is based on the application of the holding to what he considers are mistakes made by the majority in the statement of the facts of the case. Oakley , asserts that the majority misapprehended the undisputed facts. He urges the majority to hold that the imposition of such an extraordinary condition of probation was not appropriate on the facts of this case.

¶ 7. I conclude that the per curiam opinion should be further developed in light of Oakley's assertions about the majority's misapprehension of the facts.

HH

¶ 8. Oakley asserts that the majority misapprehended the following two key facts: (1) the majority misapprehended Oakley's compliance with his child support obligations prior to the imposition of the condition of probation; and (2) the majority misapprehended Oakley's supposed history of intimidation and abuse.

¶ 9. First, Oakley asserts that the majority misapprehended Oakley's compliance with his child support obligations prior to the imposition of the condition of probation. Oakley states that the majority did not consider that he had in fact made child support payments and that his payments constituted in excess of 70% of his child support obligations. Exhibits in the record support Oakley's assertions. Oakley argues that the record therefore does not support the majority's premise that the extraordinary probation condition in this case was warranted because of his persistent and stubborn refusal to pay child support. According to the record, any persistent and stubborn refusal to pay child support is limited to the single 120-day period, that is, January 1, 1998, to April 30, 1998, for which he was charged and convicted.

¶ 10. The State does not challenge Oakley's statement of the facts about his support payments. To the contrary, the State responds that it has never contended that Oakley never paid any support for his children.

¶ 11. The majority remains silent about Oakley's support payments during the entire period except from January 1, 1998, to April 30, 1998, in determining the extraordinary circumstances justifying this extraordinary. condition of probation. I conclude that the majority has not fully stated the facts in its opinion and in the per curiam opinion and has not considered all the facts in applying its holding.

¶ 12. Second, Oakley asserts that the majority misapprehended his supposed history of intimidation and abuse.

¶ 13. The majority and concurrence apparently agree with Oakley on this point and have appropriately corrected in the per curiam opinion the "facts" stated in the respective opinions.

II

¶ 14. Oakley also asserts that the majority misapprehended Oakley's compliance with his child support obligations subsequent to the imposition of the condition of probation.

¶ 15. The State responds that the circuit court, not this court, is the appropriate forum in which Oakley should make any argument relating to compliance with the condition of probation. I agree with the State.

¶ 16. For the reasons set forth, I write separately. I would deny -the motion for reconsideration, but I conclude that the per curiam opinion fails to state or consider significant facts. The per curiam opinion should apply the majority's holding, considering Oakley's record of making support payments as well as his record of not making support payments.

¶ 17. I am authorized .to state that Justices ANN WALSH BRADLEY and DIANE S. SYKES join this opinion.

       Oakley notes that the majority opinion is internally inconsistent in stating the prerequisites he must meet to satisfy the conditions of probation. Oakley notes that the majority opinion states that the circuit court's order requires him to "avoid having another child, unless he shows that he can support that child and his current children." Majority op. at ¶ 1. See also ¶¶ 6,20. Oakley notes that the majority opinion also states that he can satisfy the condition "by not intentionally refusing to support his current nine children and any future children." Majority op. at ¶ 20.


author: PER CURIAM.

text:
    Michael W. Bruzas, Constance K. Bruzas and Christopher A. Bruzas, Plaintiffs, v. Cipriano Quezada-Garcia and Elida Torres, Defendants, American Family Mutual Insurance Company, Defendant-Appellant, Employers Insurance of Wausau, Subrogated Party, Underwriters Laboratories, Inc., Subrogated Party-Respondent.
    Supreme Court

      No. 00-0043.

      Oral argument September 12, 2001.

    Decided December 4, 2001.

    2001 WI 127
    (Also reported in 637 N.W.2d 34.)

      For the defendant-appellant there were briefs by Thomas M. Devine, JoAnne M. Breese-Jaeck and Hos-tak, Henzl & Bichler, S.C., Racine, and oral argument by JoAnne M. Breese-Jaeck.

    For the subrogated party-respondent there was a brief by Thomas H. Koch and Law Offices of Thomas H. Koch, Milwaukee, and oral argument by Thomas H. Koch.

    An amicus curiae brief was filed by John H. Bowers, Aaron N. Halstead and Shneidman, Hawks & Ehlke, S.C., Madison, on behalf of the Wisconsin Masons' Health Care Fund and Local #383 Ironworkers Health Care Plan.
   PER CURIAM.

¶ 1. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 on the question of "whether an ERISA health benefit plan must expressly confer discretion to the plan administrator before a reviewing court owes deference to the administrator's interpretations of the plan and actions taken under the plan."

¶ 2. The underlying issue is whether the subrogation clause in Underwriters Laboratories' ERISA plan allows subrogation where the plan beneficiary has not been made whole. We accepted the court of appeals' certification on the standard of review question noted above.

¶ 3. At oral argument, counsel acknowledged that the record contains no explicit subrogation determination by the plan administrator, nor any explicit interpretation of the plan's subrogation language by the plan administrator. While a determination or interpretation might be implicit in Underwriters Laboratories' subro-gation claim, counsel conceded that the plan administrator has not in fact issued a determination or interpretation of the plan's subrogation clause. As such, a decision about the applicable standard of review upon judicial review is premature. We therefore dismiss the certification as improvidently granted and remand the case to the court of appeals for proceedings consistent with this opinion.

By the Court — The certification from the court of appeals is dismissed as improvidently granted and the cause remanded to the court of appeals.