author: VERGERONT, J.

text:
    In re the Commitment of Christopher L. Combs: State of Wisconsin, Petitioner-Respondent, v. Christopher L. Combs, Respondent-Appellant.

    Court of Appeals

      No. 2005AP859.

      Submitted on briefs October 11, 2005.

      Decided June 29, 2006.

    2006 WI App 137
    (Also reported in 720 N.W.2d 684.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven D. Phillips, asst, public defender, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Lundsten, PJ., Vergeront, Higginbotham, JJ.

       Petition to review denied 9/11/06.

   VERGERONT, J.

¶ 1. Christopher L. Combs, previously committed as a sexually violent person under Wis. Stat. ch. 980, appeals an order denying his petition for discharge. The circuit court held a probable cause hearing pursuant to Wis. Stat. § 980.09(2)(a) and determined that the re-examination report opining that Combs was not a sexually violent person did not show probable cause to believe that he was no longer a sexually violent person. We agree with the circuit court that the opinion did not establish probable cause because it was based on historical facts, actuarial instruments, and theories of interpreting those instruments that were considered by the experts testifying at the commitment trial. The opinion did not depend upon any fact or professional knowledge or research that was not considered by the experts testifying at the commitment trial. We therefore conclude the report was not sufficient to establish probable cause that Combs no longer was a sexually violent person. See § 980.09(2). Accordingly, the circuit court properly denied Combs' discharge petition without an evidentiary hearing, and we affirm.

BACKGROUND

I. Commitment Trial

¶ 2. In 1992, Combs was convicted of having sexual intercourse by use of force or violence as a repeat offender in violation of Wis. Stat. §§ 940.225(2)(a) (1991) and 939.62(l)(b) (1991); he was sentenced to thirteen years imprisonment. Shortly before Combs was to be released in April 2000, the State petitioned the court to commit him as a sexually violent person under Wis. Stat. ch. 980. A sexually violent person under Wis. Stat. § 980.01(7) (1997-98), the version of the statute on which the State relied in the petition, is:

a person who has been convicted of a sexually violent offense... and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

¶ 3. At the May 2001 jury trial on the petition, three psychologists — Dr. Christopher Tyre, Dr. Patricia Coffey, and Dr. Catón Roberts — gave their opinions on whether it was substantially probable, or much more likely than not, that Combs would commit future acts of sexual violence if released. All three opined that Combs had a mental disorder within the meaning of Wis. Stat. § 980.01(2) (1997-98). As relevant to this appeal, each diagnosed Combs with anti-social personality disorder (ASPD), and Dr. Tyre, in addition, diagnosed Combs as having paraphilia not otherwise specified. Dr. Tyre opined that, to a reasonable degree of professional certainty, it was substantially probable that Combs would engage in acts of sexual violence; both Dr. Coffey and Dr. Roberts opined that they could not conclude to the requisite degree of certainty that it was much more likely than not that Combs would engage in acts of sexual violence.

¶ 4. In evaluating the likelihood of Combs engaging in future acts of sexual violence, all three experts used actuarial instruments. These are statistical research-based instruments that are created using data obtained by studying various factors associated with recidivism in groups of people who were convicted for sexual offenses, released, and followed over time. All three experts used: the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), a four-item scale that considers prior sex offenses, current age, victim gender, and relationship to victim; the Static-99, which considers those factors as well as a broader category of criminal offenses and whether the individual is "single" as defined in the instrument; and the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), which considers prior sex offenses and other factors based on the individual's life before the current offense as well as factors based on events occurring during institutionalization.

¶ 5. Dr. Tyre scored Combs as a four on the RRASOR and a "six slash seven slash eight" on the Static-99, depending on how he calculated certain events, while both Dr. Coffey and Dr. Roberts scored Combs as a three on the RRASOR and a five on the Static-99. The scores on these instruments are associated with a particular percentage of persons who are reconvicted of a sexually violent offense within a particular number of years, and each expert explained what those were, given the scores of each. The higher the score, the greater the risk.

¶ 6. The trial testimony explored some of the differences in the methods of scoring that led to the difference in scores. One of the differences was that Dr. Tyre counted as "convictions" incidents that resulted in sanctions or consequences but not in convictions or adjudications, while Dr. Coffey and Dr. Roberts disagreed with this practice. Based on their understanding of how these instruments had been validated, these two experts counted only incidents that resulted in convictions and adjudications.

¶ 7. In addition to their scores on the actuarial instruments, all three experts considered other events and other behavior of Combs in evaluating the risk that he would engage in acts of sexual violence. Furthermore, each considered their diagnoses of Combs in evaluating that risk. For example, Dr. Tyre testified that risk assessment research shows that people who have a combination of paraphilia and ASPD are the highest risk individual. In contrast, Dr. Coffey, besides disagreeing that Combs had paraphilia, did not agree that the combination of paraphilia and ASPD, by itself, meant a high risk. In her view, the degree of psychopathy, as measured by the Hare Psychopathy Checklist (PCL-R), was a critical factor, and she concluded Combs did not have a high degree of psychopathy according to this instrument.

¶ 8. Based on the testimony of these experts and the other evidence, the jury found Combs was a sexually violent person and the circuit court committed Combs to the custody of Department of Health and Family Services (DHFS).

II. 2004 Re-Examination

¶ 9. In April 2004, Dr. James Harasymiw examined Combs as part of a periodic re-examination required by Wisconsin Stat. § 980.07(1) and prepared a report. Like the three trial experts, Dr. Harasymiw diagnosed Combs as having ASPD and concluded this was a mental disorder under Wis. Stat. ch 980 that predisposed Combs to engage in acts of sexual violence. Like Dr. Coffey and Dr. Roberts, he did not give Combs a diagnosis of paraphilia.

¶ 10. Next, Dr. Harasymiw calculated Combs' score on the RRASOR as a three, calculated his score on the Static-99 as a six, and found Combs had a high degree of psychopathy as measured by the PCL-R. Dr. Harasymiw concluded Combs had a high risk for recidivism based on his having a combination of a high degree of psychopathy, a high-risk score on the Static-99, and an ASPD diagnosis. Based on his diagnosis and the scores on the actuarial instruments, which Dr. Hara-symiw described as "historically-based," he concluded "to a reasonable degree of professional certainty that Mr. Combs still meets criteria for commitment under Chapter 980."

¶ 11. Dr. Harasymiw then assessed Combs with regard to certain "dynamic" characteristics: (1) illegal sexual interests and/or sexual pre-occupation; (2) attitudes that justify offending; (3) social/emotional functioning; and, (4) self-management. While Dr. Hara-symiw concluded that Combs had made progress in three of these categories, that progress did not alter Dr. Harasymiw's opinion based on the "historically-based" considerations. Dr. Harasymiw concluded that Combs "still represented a] substantial probability to commit another sexually violent offense," and had "not made sufficient progress for the court to consider supervised release or discharge."

¶ 12. Combs did not affirmatively waive his right to petition for discharge under Wis. Stat. § 980.09(2)(a) and he exercised his right to request that the circuit court appoint a qualified professional to examine him. See Wis. Stat. §§ 980.07(1) and 980.03(4). The circuit court appointed Dr. Sheila Fields. Dr. Fields filed a report in August 2004 in which she concluded that she "[did] not believe to a reasonable degree of psychological certainty that Mr. Combs is more likely than not to commit additional sexually violent acts if discharged," and "the preponderance of data... suggest that Mr. Combs' sexually violent recidivism risks most likely do not reach threshold levels necessary for commitment under Chapter 980 criteria."

¶ 13. In arriving at her conclusion, Dr. Fields, like Dr. Harasymiw, reviewed Combs' DOC files, including previous Wis. Stat. ch. 980 examinations, and interviewed Combs. Like Dr. Harasymiw, Dr. Coffey, and Dr. Roberts, Dr. Fields diagnosed Combs as having ASPD but not paraphilia. Like Dr. Coffey, and unlike Dr. Harasymiw, the score she gave Combs on the PCL-R did not, in her opinion, magnify risks beyond those already associated with ASPD.

¶ 14. Dr. Fields scored Combs as a two on the RRASOR and a four on the Static-99. She explained that, while "some other [Wis. Stat. ch. 980] evaluators" had included Combs' juvenile sexual misconduct, she did not do so because there were no adjudications. She acknowledged that he did receive significant punishments for those incidents, but she did not view the punishments as the equivalent of adjudications. She noted that "the norms for these actuarial scales were developed on samples in which similar criminal conduct (i.e., that which was not adjudicated) is not scored as such."

¶ 15. Dr. Fields then considered the "dynamic" characteristics affecting Combs' recidivism risk, using the same categories as did Dr. Harasymiw except that she used an additional category of age/health. In considering these categories, Dr. Fields, as did Dr. Harasymiw, took into account information existing at the time of the commitment trial in May 2001, as well as information coming into existence since that time.

¶ 16. Dr. Fields concluded:

I do not believe to a reasonable degree of psychological certainty that Mr. Combs is more likely than not to commit additional sexually violent acts if discharged. While dynamic risk factors, treatment progress, and supervision considerations probably do not significantly decrease Mr. Combs offending risks, neither do they increase risks very substantially. As such, the statistical risks as estimated by actuarial scales are probably reasonably reliable and valid, and the preponderance of data, then, suggest that Mr. Combs' sexually violent recidivism risks most likely do not reach threshold levels necessary for commitment under Chapter 980 criteria.

¶ 17. Because Combs did not affirmatively waive his right to petition for discharge, the court, as required by Wis. Stat. § 980.09(2)(a), scheduled a probable cause hearing to determine "whether facts exist that warrant a hearing on whether [Combs] is still a sexually violent person." The court concluded that Dr. Fields' report did not establish probable cause to believe that Combs was no longer a sexually violent person. Therefore, the court dismissed the petition. The court stated that Dr. Fields' conclusion was based on a different interpretation applied to the same actuarial instruments that were used by the three experts who testified at the commitment trial, and her interpretation resulted in different scores on those instruments. These differing interpretations of the actuarial instruments, the court stated, had been disputed at the commitment trial and resolved by the jury.

ANALYSIS

¶ 18. Combs contends on appeal that Dr. Fields' report establishes probable cause to believe that he is not still a sexually violent person and the circuit court erred in deciding it did not. Combs acknowledges that Dr. Fields based her opinion on the same actuarial instruments that were used by the experts who testified at the commitment trial, but, he asserts, she interpreted and scored them differently than did those experts. According to Combs, the phrases "still a sexually violent person" in Wis. Stat. § 980.09(2) (a) and "no longer a sexually violent person" in § 980.09(2)(b) encompass a person who is not now sexually violent because of a different interpretation and scoring of the same actuarial instruments used by experts at the commitment trial.

¶ 19. The State's position is that the statutory language means that there must be an improvement either in the petitioner's mental condition or degree of dangerousness, and, it asserts, Dr. Fields' report shows neither. In the State's view, Combs has already been adjudged a sexually violent person and the legislature did not intend Wis. Stat. § 980.09(2) to permit relitigation of that determination.

¶ 20. Combs replies that he is not relitigating whether he was a sexually violent person in 2001, because Dr. Fields' report offers no opinion on that, only on whether he was a sexually violent person in August 2004. As to this opinion, Combs asserts, there has been no previous litigation.

¶ 21. Whether Dr. Fields' report is sufficient to establish probable cause to believe that Combs is not "still.. . sexually violent" or is "no longer ... sexually violent" requires a construction of Wis. Stat. § 980.09(2). This presents a question of law, which we review de novo. State v. Pocan, 2003 WI App 233, ¶ 5, 267 Wis. 2d 953, 671 N.W.2d 860.

¶ 22. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. We do so in part because words often have multiple meanings and the applicable definition depends upon the context in which a word is used. See id., ¶¶ 48-49. If this process of analysis yields a plain meaning, there is no ambiguity and we apply that plain meaning. Id., ¶ 46. However, if the statutory language is capable of being understood by reasonably well-informed persons in two or more senses, it is ambiguous and we may employ sources extrinsic to the statutory text. Id., ¶¶ 47, 50. These extrinsic sources are typically items of legislative history. Id., ¶ 50.

¶ 23. We recently discussed the meaning of "still sexually violent" in Wis. Stat. § 980.09(2)(a) in Pocan, 267 Wis. 2d 953. There a re-examination report, using actuarial tables that had not been available at the commitment hearing, concluded that Pocan's "mental disorders [did] not pre-dispose [him] to engage in acts of sexual violence . . .." Id., ¶ 4. Due to a mistaken view of the record, the circuit court dismissed Pocan's petition for discharge without affording him a probable cause hearing under § 980.09(2)(a). Id., ¶ 8. The State conceded that Pocan was entitled to a probable cause hearing, but contended that the error did not require reversal because the re-examination report did not provide any evidence that Pocan's condition had improved; rather, the State argued, Pocan was asserting he never was a sexually violent person. Id., ¶¶ 9-11. In the State's view, this did not show that he was not "still" a sexually violent person. Id. We rejected this argument, stating:

We agree that progress in treatment is one way of showing that a person is not still a sexually violent person. However, we conclude that is not the only way. A new diagnosis would be another way of proving someone is not still a sexually violent person. A new diagnosis need not attack the original finding that an individual was a sexually violent person. Rather, a new diagnosis focuses on the present. The present diagnosis would be evidence of whether an individual is still a sexually violent person.
The circuit court found Pocan to be a sexually violent person when it committed him in 1998. He now argues new diagnostic tools show that he is not a sexually violent person. If the court finds Pocan is not sexually violent now, that means he is not still a sexually violent person.

Id., ¶¶ 12-13 (emphasis.added).

¶ 24. Combs argues that Pocan supports his position. He asserts that, because the focus of the statute is on whether the petitioner is presently a sexually violent person, it does not matter whether that is so because the petitioner's condition has changed or because he never was sexually violent. Combs also asserts that we did not hold in Pocan that progress in treatment and a new diagnosis were the only two methods of showing that a person was not still sexually violent. He points out that what was "new" in Pocan was not actually Pocan's diagnosis but new actuarial instruments and, he asserts, there is no basis for distinguishing between the use of new actuarial instruments and a new interpretation of instruments previously applied to him, which, in his view, is what is "new" about Dr. Fields' report.

¶ 25. Combs is correct that, despite language suggesting otherwise, in Pocan there was not a new diagnosis in the sense of a new diagnosis of Pocan's mental disorder. Rather, there was a new actuarial instrument to evaluate Pocan's dangerousness, that is, the likelihood that his mental disorder would predispose him to engage in acts of sexual violence. However, the significant point of our holding in Pocan is that probable cause to believe a person is "no longer. . . sexually violent" may be established by a method professionals use to evaluate whether a person is sexually violent that was not available at the time of the prior examination, as well as by a change in the person himself or herself. The methods professionals use to evaluate whether a person is sexually violent include both methods to determine whether a person has a mental disorder within the meaning of Wis. Stat. § 980.01(2) and methods to determine the likelihood of engaging in acts of sexual violence as provided in § 980.01(7).

¶ 26. Although Pocan is the starting point for our analysis, we conclude it does not resolve the issue presented on this appeal. In the case before us there is no contention that Dr. Fields' opinion is based on a change in Combs himself. Dr. Fields did consider his progress in treatment and his attitudes and behavior since the commitment trial; but her report explicitly states that these are not the basis for her conclusion that he is not a sexually violent person. Nor is there any contention that Dr. Fields used a method of evaluating whether Combs was a sexually violent person that was not available at the time of the commitment trial.

¶ 27. Combs asserts that, while Dr. Fields used the actuarial instruments that were used by the experts at the trial — the RRASOR and the Static-99 — her interpretation is "new." However, her interpretation is not "new" in the sense of being based on research or professional writings on how to interpret or score these instruments that were not available at the time of the commitment trial. Combs does not point to anything in Dr. Fields' report that indicates this, and we have identified nothing. Rather, her interpretation is "new" only in the sense that she is not one of the experts who has previously evaluated Combs using these instruments and, thus, her interpretation and scoring— reflecting her individual professional judgment — has not occurred before. The precise issue presented by these facts is whether an expert's conclusion that a person is not sexually violent, based on actuarial instruments that were used previously by other experts to evaluate the petitioner, when there is no change in the historical facts to which those instruments are applied and no change in the research or writings on how professionals are to interpret and score those instruments, establishes probable cause that a person is no longer sexually violent. Pocan did not address this issue, and we turn to it now.

¶ 28. In resolving this issue, it is important to take into account the purpose of Wis. Stat. § 980.09(2). The required periodic re-examination and "probable cause hearing for discharge ... unless the committed person affirmatively waives this right" are among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process. State v. Post, 197 Wis. 2d 279, 307 n.14, 313-16, 325-27, 541 N.W.2d 115 (1995). For this reason, we do not agree with the State's argument that § 980.09(2) is not intended to be used to correct an initial determination of sexual violence and that the committed person must use habeas corpus procedure for that purpose. Whether or not other procedures exist, the legislature has enacted a statutory procedure in § 980.09(2) that provides for a periodic probable cause hearing unless the committed person affirmatively waives it, Post, 197 Wis. 2d at 326-27; and we have held in Pocan that probable cause to believe a committed person is no longer sexually violent includes a method of evaluating dangerousness that was not available at the time of the initial determination. Pocan, 267 Wis. 2d 953, ¶¶ 4, 12-14. Our holding in Pocan is consistent with the significance of probable cause hearings under Wis. Stat. § 980.02(a) in protecting against continued commitment of a person who is not sexually violent.

¶ 29. On the other hand, the expansive reading that Combs would give to the scope of a probable cause hearing would mean that, any time an expert examining a person already committed comes to the conclusion that the person is not sexually violent, even if the basis for this opinion was already considered by another expert who testified at the commitment trial, there must be an evidentiary hearing. Combs asserts that this construction of the statute is justified because it is a way to "correct mistakes" in committing people as sexually violent persons. However, this assertion assumes that an expert's opinion that a person is not sexually violent, and was not sexually violent when committed, necessarily means that the original fact-finder's determination of sexual violence was an error. This assumption overlooks the reality that often, as in this case, there are conflicting expert opinions on whether a person is sexually violent, both at the time of the commitment hearing and at re-examination; the fact-finder may find one expert opinion more persuasive than another, but that does not necessarily make opinions to the contrary "wrong." Similarly, an expert opinion that conflicts with the initial determination does not necessarily mean the initial determination was "wrong."

¶ 30. Combs argues that the different language in Wis. Stat. § 980.10 supports his construction of Wis. Stat. § 980.09(2). Section 980.10 provides:

Additional discharge petitions. In addition to the procedures under s. 980.09, a committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. If the court finds that a hearing is warranted, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate. If the person has not previously filed a petition for discharge without the secretary's approval, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate.

(Emphasis added.)

¶ 31. Combs asserts that the italicized language is intended to make it more difficult to have a hearing on a petition after one has previously been dismissed, and we therefore must construe the standard for obtaining an evidentiary hearing under Wis. Stat. § 980.09(2) more broadly. This argument implies that Wis. Stat. § 980.10 applies to petitions filed under § 980.09(2) after the first petition. However, that construction appears to conflict with the supreme court's construction of §§ 980.09(2) and 980.10 in Post, 197 Wis. 2d at 327. See also id. at 307 n.14. In any event, accepting that the language in § 980.10 is intended to establish a narrower standard than § 980.09(2), that language does not help to define the scope of the broader standard under § 980.09(2).

¶ 32. We conclude the legislature did not intend that probable cause under Wis. Stat. § 980.09(2) may be established by an expert's opinion that a person is not sexually violent without regard to whether that opinion is based on matters that were already considered by experts testifying at the commitment trial or a prior evidentiary hearing. Rather, we conclude that the legislature intended that, in order to provide a basis for probable cause to believe a person is no longer sexually violent under § 980.09(2), an expert's opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding that determined the person to be sexually violent. By way of example, an opinion that a person is not sexually violent based at least in part on facts about the committed person that did not occur until after the prior adjudication would meet this standard, as would an opinion based at least in part on new professional knowledge about how to predict dangerousness. These examples are not exhaustive.

¶ 33. We recognize this standard does not offer a simple, bright line. However, we are persuaded that this interpretation of Wis. Stat. § 980.09(2) is the most reasonable because it serves the purpose of ensuring that a person who is not sexually violent does not continue in commitment, while avoiding continual re-litigation of issues.

¶ 34. Applying this construction of Wis. Stat. § 980.09(2), we conclude that Dr. Fields' opinion did not depend upon any fact or professional knowledge or research that was not considered by the experts testifying at the commitment trial. As her conclusion in her report makes clear, although she considered events and circumstances that occurred after that trial, those did not, in her opinion, significantly increase or decrease the risk that the actuarial instruments estimated based on her scoring. As for her interpretation of the instruments that led to her scores, we agree with the circuit court's analysis that the debate over whether to consider only convictions and adjudications, as opposed to incidents that had sanctions or consequences but no conviction or adjudication, was presented by the experts' testimony at the commitment trial. Dr. Coffey and Dr. Roberts both advanced the same position that Dr. Fields expresses in her report. Dr. Fields' report does not reflect that there is any research or instructions to professionals on how to interpret these instruments on this point that were not available at the time of the time of the commitment trial. Nor is there any indication in her report that her scoring on these actuarial instruments took into account facts not in existence at the time of the commitment trial, and Combs does not contend otherwise.

¶ 35. Because we conclude that Dr. Fields' opinion did not depend upon any fact or professional knowledge or research that was not considered by the experts testifying at the commitment trial, we hold that the circuit court properly denied Combs' discharge petition without an evidentiary hearing.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We certified this issue in State v. Combs, 2005 WL 3434976 (WI App Dec. 15, 2005) (No. 2005AP859). Certification was denied 2006 WI 23 (WI Feb. 28, 2006).

       2003 Wis. Act 187, § 2 changed the definition to a person whose mental disorder makes it "likely," rather than whose mental disorder "makes it substantially probable" that the person will engage in acts of sexual violence. See Wis. Stat. § 980.01(7) (2003-04).

       The term "substantial probability" in Wis. Stat. § 980.02(2)(c) (1997-98) was defined in State v. Curiel, 227 Wis. 2d 389, 406, 597 N.W.2d 697 (1999), to mean "much more likely than not."
      Other witnesses testified at the trial, but for this appeal it is necessary to summarize the testimony of only these three.

       Wisconsin Stat. § 980.01(2) (1997-98) provides:
      "Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.
      This is the same definition found in § 980.01(2) (2003-04).

       Dr. Tyre defined paraphilia not otherwise specified as recurring "intense sexual fantasies, urges or behaviors" which occur over more than six months and cause "significant clinical impairment in a person's life."

        Each of these three trial experts, as well as the two re-examining experts, diagnosed Combs with substance abuse, but that diagnosis is not relevant to the opinions whether he is a sexually violent person under Wis. Stat. ch. 980.

       In addition, Dr. Tyre used the unrevised version, the MnSOST. All three experts testified that they were aware that the MnSOST and the MnSOST-R were based on a small sample group, and Dr. Coffey and Dr. Roberts were aware that there were questions about the cross-validation of this instrument. Neither the MnSOST nor the MNSOST-R was used by either of the re-examination experts. Because Combs does not argue that it is significant that this instrument was not used in his re-examination, we do not further discuss it.

       Both the RRASOR and the Static-99 consider "charges" and "convictions" for prior sex offenses. We discuss in paragraph 6 only the testimony on how the witnesses interpreted "convictions."

       WISCONSIN Stat. § 980.07(1) provides:
      (1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should he placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03 (4).

       WisConsin Stat. § 980.09(2) provides:
      (2) Petition without secretary's approval, (a) A person may-petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing.
      (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The state has the right to have the committed person evaluated by experts chosen by the state. At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
      (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criteria specified in s. 980.08 (4) (b), whether to modify the person's existing commitment order by authorizing supervised release.

       Like Dr. Harasymiw, Dr. Fields noted there was no consensus on "how to quantify [these dynamic characteristics] into risk estimates."

       Combs also contends that the circuit court at the probable cause hearing is to determine only whether there is a believable and plausible account that establishes that he is not still a sexually violent person; and, since in his view, Dr. Fields' report meets that standard, the court is not to weigh other reports or other evidence. Combs relies on State v. Fowler, 2005 WI App 41, ¶ 11, 279 Wis. 2d 459, 694 N.W.2d 446, for this argument. The State's position on this issue is that under State v. Thayer, 2001 WI App 51, ¶ 28, 241 Wis. 2d 417, 626 N.W.2d 811, the circuit court may weigh the evidence presented at the probable cause hearing. It is unnecessary for us to decide this issue on this appeal because the circuit court here did not weigh Dr. Fields' report against Dr. Harasymiw's report or against the contrary evidence and opinions presented at the initial commitment trial. Rather, the court considered only Dr. Fields' report, but concluded it did not show probable cause to believe that Combs was not still a sexually violent person because her opinion was based on a method of scoring on the actuarial instruments that had already been litigated.

       Wisconsin Stat. § 980.09(2)(a) states the probable cause hearing is to determine whether the petitioner is "still a sexually violent person"; under subsec. (2)(b) there is an evi-dentiary hearing if the court determines there is probable cause to believe the petitioner is "no longer ... sexually violent." We view the two phrases as presenting the same issue for statutory construction in this case: that is, "not 'still a sexually violent person'" means the same as "no longer a sexually violent person."

       The circuit court in State v. Pocan, 2003 WI App 233, ¶ 8, 267 Wis. 2d 953, 671 N.W.2d 860, mistakenly believed that Pocan had previously filed a petition for discharge that had been determined frivolous, and the circuit court applied Wis. Stat. § 980.10, which provides:

        Additional discharge petitions. In addition to the procedures under s. 980.09, a committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. If the court finds that a hearing is warranted, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate. If the person has not previously filed a petition for discharge without the secretary's approval, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate.
      The circuit court determined that Pocan's petition, based on the re-examination report, did not show that his condition had changed. Pocan, 267 Wis. 2d 953, ¶ 8. In the context of discussing why the circuit court erred in not conducting a probable cause hearing, we stated that the court must set a probable cause hearing under Wis. Stat. § 980.09(2)(a) "[w]hen an individual petitions for the first time without the secretary's approval," but that "[i]f the individual files any subsequent petitions, the [circuit] court proceeds under Wis. Stat. § 980.10 . ..." Id., ¶¶ 6-7.
      This construction appears to conflict with the supreme court's construction of Wis. Stat. §§ 980.09(2) and 980.10 in State v. Post, 197 Wis. 2d 279, 327, 541 N.W.2d 115 (1995). There the court held that the procedure in § 980.10 — denial without a hearing unless the petition contains facts indicating the person's condition has so changed that a hearing is warranted—
      is clearly limited to "subsequent petition[s] under this section." Wis. Stat. § 980.10 (emphasis added). In other words, this limitation does not apply to petitions for supervised release, petitions for discharge filed with the secretary's approval, or those filed without approval following the yearly examination. Nor does this section in any way affect a committed person's right to an annual hearing for discharge under § 980.09(2).

        Id. at 327.
      It is unnecessary to address this apparent conflict between Pocan and Post on this appeal, except insofar as it is relevant to part of Combs' argument on the proper construction of Wis. Stat. § 980.09(2), which we address in paragraphs 30 and 31.

       We point out that although progress in treatment is one way that a person could change, that is not the only way: For example, a physical illness that developed after a commitment could mean that there is not a substantial probability that the person would engage in acts of sexual violence, even though the person's mental disorder had not changed and even though there had been no progress in treatment.

       The fact-finder in a Wis. Stat. ch. 980 trial may accept or reject all or any portion of any expert's opinion and may consider all non-expert testimony. State v. Kienitz, 227 Wis. 2d 423, 440-41, 597 N.W.2d 712 (1999).

       We need not address what the result would be if Dr. Fields' opinion depended on facts or professional knowledge or research in existence at the time Combs was previously determined to be sexually violent, but which were not considered by an expert testifying at that time. Whether the legislature intended Wis. Stat. § 980.02 as a vehicle to litigate issues that could have been, but were not, litigated during the prior proceeding is an issue that is not before us.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Melanie Bauer, personally and as Special Administrator of the Estate of Matthew W. Oleson, deceased, Plaintiff-Appellant, v. USAA Casualty Insurance Company, Defendant, State Farm Mutual Automobile Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 2005AP2443.

      Submitted on briefs March 3, 2006.

      Decided June 29, 2006.

    2006 WI App 152
    (Also reported in 720 N.W.2d 187.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jerome A. Maeder and Benjamin C. Welch oí Jerome A. Maeder, S.C., Wausau.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jacqueline R. Chada of Mueller Goss & Possi, S.C., Milwaukee.
    Before Lundsten, PJ., Dykman and Higginbotham, JJ.

       Petition to review denied 9/11/06.

   DYKMAN, J.

¶ 1. Melanie Bauer, personally, and as personal representative of the estate of Matthew W Oleson, appeals from an order dismissing her complaint against State Farm Mutual Automobile Insurance Company. The issue raised on summary judgment is whether the underinsured motorist (UIM) clause of her automobile policy with State Farm covered her son, Matthew Oleson, when he was killed while riding in an automobile driven by a friend. We conclude that Matthew did not "reside primarily with" Bauer and therefore, under the unambiguous language of Bauer's policy, Matthew was not insured by Bauer's UIM coverage. We therefore affirm.

¶ 2. Summary judgment methodology is well known and we need not repeat it here. Our review is de novo, and is limited to the pleadings, and the parties' affidavits and other material. Nielsen v. Spencer, 2005 WI App 207, ¶ 9, 287 Wis. 2d 273, 704 N.W.2d 390. State Farm's affidavit included pertinent parts of Bauer's insurance policy, portions of her deposition, her response to State Farm's interrogatories and several documents. Bauer submitted her affidavit and the affidavit of her attorney, to which he attached Bauer's entire deposition, portions of her insurance policy with State Farm and her answers to State Farm's interrogatories. The parties do not assert a conflict in the documents. They disagree on the meaning of State Farm's UIM coverage.

¶ 3. Matthew lived with his mother from birth through high school. He then enlisted in the Navy, and attended boot camp and advanced training from June through December 2001. He returned to his mother's home for three weeks' leave. He was then sent to his "home port" of Gulf Port, Mississippi, from where he was dispatched on several missions. For the first six months in Gulf Port, he lived on base. After that, he rented an apartment with a roommate. Between missions, when granted leave, he would return to his mother's home for two weeks' time. Matthew obtained a Mississippi fishing license and kept his motorcycle and personal items at his apartment. He maintained a Wisconsin operator's permit and a Wisconsin bank account, to which his pay checks were deposited. His motorcycle was licensed in Wisconsin. His income tax return listed his mother's home as his home address. His mother kept a room in her home for his use, and Matthew stored bows, guns and clothing there. He planned on returning to Wisconsin after his five-year Navy enlistment. He was killed in an automobile accident in Wisconsin on May 9, 2004, while riding with an underinsured driver.

¶ 4. Melanie Bauer's UIM clause in her policy with State Farm defines the persons insured by UIM vehicle coverage as: (1) the first person named in the declarations; (2) his or her spouse, and (3) their relatives. The policy's definition of a "relative" is "a person related to you or your spouse by blood, marriage or adoption who resides primarily with you. It includes your unmarried and unemancipated child away at school." The parties' dispute concerns whether, for purposes of UIM coverage, Matthew "reside [d] primarily" with his mother, Melanie Bauer, at the time of his death.

¶ 5. Wisconsin cases have not interpreted the phrase "resides primarily with you." Bauer asserts that cases interpreting the word "resident" are relevant to our interpretation of this phrase. She relies on several of these cases, the first of which is Doern v. Crawford, 30 Wis. 2d 206, 210, 213, 140 N.W.2d 193 (1966), overruled on other grounds, Belling v. Harn, 65 Wis. 2d 108, 221 N.W.2d 888 (1974), which interpreted an insurance policy containing the phrase "resident of the same household." We are not convinced that this phrase and "resides primarily with you" are fungible. The word "primarily" focuses our analysis on where a person's primary residence is located. Doern held only that because there were competing inferences as to whether the policyholder resided with the person asserting coverage, summary judgment was improperly granted. Doern, 30 Wis. 2d at 214. Even if we were to use the Doern test, which includes a requirement that "the absence from the family roof must he of a temporary nature ...," we would conclude that Matthew's five-year enlistment in the Navy was not a temporary absence. Id. at 213 (emphasis added). Thus, Matthew's undisputed intent to return to Wisconsin after his Navy service would not carry the day even if coverage were governed by the Doern test.

¶ 6. Bauer asks us to apply the test for whether a person was a "resident of the same household" that the court employed in Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis. 2d 27, 36-37, 197 N.W.2d 783 (1972). There, the court concluded that:

[A] determination as to whether a person is a resident or member of a household in the present context is dependent upon three factors: (1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon.

Id. (citation omitted).

¶ 7. We have the same difficulty with Pamperin that we had with Doern. We are not interpreting the policy language the court interpreted in Pamperin. Pamperin concluded that the jury's finding as to residency was not supported by the evidence. The Pamperin three-factor test is: (1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial. Matthew received two-weeks' leave between assignments. His fatal accident occurred during one of those leaves. Even assuming that the accident occurred near the end of his leave, the time spent with Bauer, like the week to ten-day stay in Pamperin, was not substantial. Therefore, even if we used the Pamperin test, Bauer would not prevail.

¶ 8. Again assuming that the phrase "resident of the same household" has the same meaning as the phrase "resides primarily with you," Bauer argues that Seichter v. McDonald, 228 Wis. 2d 838, 844-45, 599 N.W.2d 71 (Ct. App. 1999), controls our decision here. Seichter reiterated the three-factor test of Pamperin, and also considered a five-factor test, noting that we cited this test with approval in Ross v. Martini, 204 Wis. 2d 354, 358, 555 N.W.2d 381 (Ct. App. 1996). But there is a difference in the two phrases. For instance, in Londre v. Continental Western Ins. Co., 117 Wis. 2d 54, 58, 343 N.W.2d 128 (Ct. App. 1983), we noted: "We agree with jurisdictions concluding that a person may be a resident of more than one household for insurance purposes." That is not physically possible where the insurance policy description includes the word "primarily." One cannot primarily reside in two households at the same time.

¶ 9. There is another difference. The Bauer policy adds to the definition of "primarily resides with you" by including an additional category of insured persons. "[R]esides primarily with you.... includes your unmarried and unemancipated child away at school." Were it not for this sentence, unmarried and unemancipated children away from home at school would not be insured under their parents' UIM coverage because they would be primarily residing in a college dormitory or apartment and not at home.

¶ 10. Bauer asserts that the sentence in her policy extending coverage to students who do not primarily reside at a pertinent relative's home provides an illustrative example of situations where a person not primarily residing with a relative would still be an insured. We disagree. If the "student" sentence were an example only, there would be no need for the sentence in the first place. If, as Bauer argues, the test is not whether a person is living under a relative's roof, but whether some other sort of relationship has ended and the child has started a life without the relative, each case would have to be litigated to see whether this test is fulfilled. As we recognized in Seichter, "previous decisions of this court indicate that no one factor is controlling on the question of household membership but that all of the elements must combine to a greater or lesser degree in order to establish the relationship." Seichter, 228 Wis. 2d at 844 (citations omitted).

¶ 11. The cases Bauer relies on do not interpret an insurance policy which includes the word "primarily" or "primary." The modifier "primarily" makes the phrase "resides primarily with you" unambiguous, at least as applied to the facts of this case. Merriam Webster's Collegiate Dictionary 925 (10th ed. 1993) defines "primarily" as "for the most part," or "chiefly." One meaning it gives "primary" is "of first rank, importance or value," or "principal." Id. To have a "primary" residence under this commonly accepted definition means there can only be one primary residence. Because one cannot "primarily reside" in more than one place, the use of the modifier "primarily" avoids the uncertainties that were a cause of the disputes in Doern, Pamperin, Seichter and Ross.

¶ 12. The material facts and reasonable inferences from these facts are undisputed. This case is therefore appropriate for summary judgment disposition. Wis. Stat. § 802.08(2) (2003-04). We conclude that Matthew did not primarily reside with his mother at the time of his death. Accordingly, the UIM clause of Bauer's policy with State Farm did not provide coverage for Matthew. We affirm the trial court's order granting summary judgment to State Farm.

By the Court. — Order affirmed.


author: KESSLER, J. FINE, J.

text:
    In re City of Glendale Community Development Authority Condemnation Award, Parcel 14: HSBC Realty Credit Corporation, Petitioner, v. City of Glendale, Respondent, John Barrett, Intervenor-Appellant, Bayshore Town Center, LLC, Interested Person-Respondent, Alterra Coffee Roasters, Athletes Foot of Glendale, Abercrombie & Fitch Stores, Inc., Barnes & Noble, Blockbuster Entertainment, Regis Corporation, GNC Store #2956, Gymboree Retail #433, Luxottica Retail Group, Touchdown, Inc., d/b/a Pro Image, Mutual Savings Bank, Tumbleweed/Diamondback Management, Nautilus, Voicestream PCS II, North Shore Bank, Walgreen Company #647 and Sears Roebuck & Company, Interested Persons.
    Court of Appeals

      No. 2005AP1042.

      Submitted on briefs April 6, 2006.

      Decided July 5, 2006.

    2006 WI App 160
    (Also reported in 721 N.W.2d 489.)

      On behalf of the intervenor-appellant, the cause was submitted on the briefs of Mark A. Grady, principal assistant corporation counsel and William J. Domina, corporation counsel, Milwaukee.
    On behalf of the interested person-respondent, the cause was submitted on the brief of Daniel Kelly of Reinhart Boerner Van Deuren S.C., Milwaukee.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review granted 9/12/06.

   KESSLER, J.

¶ 1. John Barrett, Milwaukee County Clerk of Circuit Court (hereafter, the "Clerk") appeals from a trial court order directing him to transfer a condemnation award (the "Award") to a money market account at a private bank where it will earn interest for the benefit of the interested persons having a claim on the Award. The Clerk argues that the trial court lacked authority to order that the Award be transferred from his control and deprive Milwaukee County's general fund of the interest it could earn on the Award. In the alternative, the Clerk argues that if the trial court had authority to order the transfer, the Clerk is entitled to payment of a transfer fee pursuant to Wis. Stat. § 814.61(12)(a) (2003-04).

¶ 2. We conclude that the trial court lacked authority to order that the Award be transferred from the Clerk's control and placed in a money market account with interest accruing to the benefit of the interested persons having a claim on the Award. Therefore, we reverse the trial court's order and remand for further proceedings consistent with this opinion. Because we conclude the Award may not be transferred to a private account, we do not consider the Clerk's alternative argument concerning the payment of a transfer fee.

BACKGROUND

¶ 3. As part of' a substantial redevelopment project of the Bay shore Mall, the City of Glendale Community Development Authority (the "CDA") condemned a parcel of commercial real estate that contained a number of existing businesses. On December 10, 2004, consistent with Wis. Stat. § 32.05(7)(d), the CDA deposited with the Clerk the condemnation Award totaling $14,439,294.84, and gave requisite notice to interested persons. The amount of the Award and how it was to be apportioned among various businesses were issues in dispute, but these issues are not the subject of this appeal.

¶ 4. The Clerk exercised his authority under Wis. Stat. § 59.40(3)(b) to deposit the Award in the County's general fund, which was earning interest at the rate of two percent annually. Consistent with § 59.40(3)(b), the County is allowed to earn and retain that interest, which in this case was a significant sum, given that the deposited Award was over fourteen million dollars.

¶ 5. On January 6, 2005, Bayshore Town Center, LLC ("Bayshore"), one of the interested entities, moved the trial court for an order directing the Clerk to transfer the Award into a private money market account for the benefit of those who will ultimately share the Award. Bayshore estimated the ultimate recipients would earn $400 to $800 per day in interest. Bayshore also sought an order prohibiting the Clerk from collecting a Wis. Stat. § 814.61(12)(a) fee for transferring the Award to a private bank.

¶ 6. The Clerk promptly moved to intervene to oppose the motion to transfer the Award. The motion to intervene was granted.

¶ 7. The trial court granted Bayshore's motion and ordered that the Award be transferred from the Clerk's control into a money market account with U.S. Bank, without any fee to the Clerk that might be payable under Wis. Stat. § 814.61(12)(a). This appeal followed.

DISCUSSION

¶ 8. At issue is whether the trial court had authority to order the Clerk to transfer the Award to a private money market account for the benefit of the interested persons having a claim on the Award. The Clerk argues that he is entitled to invest and earn interest on the deposited Award pursuant to Wis. Stat. § 59.40(3), which provides:

Clekk of COURT; fees; investment of funds, (a) The clerk of the circuit court shall collect the fees that are prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid.
(b) Except as provided in par. (c), the clerk may invest any funds that are paid into his or her office and are being held for repayment. The investments shall be made in suitably protected accounts in the manner specified in s. 66.0603 (lm) and all income that may accrue shall be paid into the county general fund.
(c) A judge may direct that par. (b) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court.

¶ 9. One of the provisions at issue here, Wis. Stat. § 59.40(3)(b), was previously interpreted in Bronfman v. Douglas County, 164 Wis. 2d 718, 476 N.W.2d 611 (Ct. App. 1991) (interpreting Wis. Stat. § 59.42(2) (1989-90), now renumbered as § 59.40(3)(b)). In Bronfman, a condemnor deposited the condemnation award with the clerk of court pending the owners' appeal of the award. Id., 164 Wis. 2d at 720. The property owners argued that § 59.42(2) (1989-90) did not apply to interest on money paid into the court for the benefit of the parties in civil litigation, and that the county's retention of the interest on the condemnation award constituted a taking without just compensation. Id. We concluded that § 59.42(2) (1989-90) applied to the deposited award, and that the county's retention of the interest was not a taking. Id. at 721-29. Here, the Clerk relies on Bronfman in support of his assertion that Milwaukee County is entitled to retain the interest earned on the Award.

¶ 10. Bayshore contends that the trial court was empowered to order that the Award be transferred to a private account for the benefit of the interested persons because the trial court has inherent and equitable authority to administer and preserve the Award. Bay-shore also argues that the legislature has not withdrawn that authority, and that Wis. Stat. § 59.40(3)(c) is a preservation of the trial court's authority. We begin our discussion by addressing Bayshore's inherent and equitable authority argument.

A. Inherent and equitable authority

¶ 11. Bayshore argues at length that the trial court had inherent and equitable authority to order that the Award be transferred from the Clerk's control and placed in a money market account with interest accruing to the benefit of the interested persons having a claim on the Award. It contends that the trial court does not need an express grant of authority, and that no statute has limited the trial court's inherent and equitable power to enter such an order.

¶ 12. In response, the Clerk argues that trial courts only have inherent authority to protect established rights, and that the potential Award recipients do not have a right to earn interest on the deposited Award. The Clerk cites Br e ier v. E.C., 130 Wis. 2d 376, 387 N.W.2d 72 (1986), which stated: "The issue of equitable authority is a variant of the inherent authority doctrine. It permits a court to grant equitable remedies to private litigants in situations in which there is no explicit statutory authority or in which the available legal remedy is inadequate to do complete justice." Id. at 388. The Clerk contends that because there is explicit statutory language addressing both interested persons' rights to awards and a clerk's authority to invest awards and retain the interest for the county, the trial court lacked inherent and equitable authority in this case to order the Clerk to transfer the Award.

¶ 13. We conclude that the trial court lacked inherent or equitable authority to order the Award transferred from the Clerk's office to a private money market account. "[A] court's exercise of equitable authority is only appropriate when a legally protected right has been invaded. Additionally, a court may not exercise its equitable authority if such exercise would ignore a statutory mandate." GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d 466 (1998) (citation omitted). We agree with the Clerk that the Award recipients have not established any right to earn interest on the Award. Wisconsin Stat. § 59.40(3) (b) specifically directs that interest earned on a deposited award shall accrue to the benefit of the county's general fund. Recognizing inherent authority to redirect an award elsewhere would "ignore [the] statutory mandate" of § 59.40(3) (b). See Gisvold, 215 Wis. 2d at 480.

¶ 14. In addition, we note that "an inherent power is one without which a court cannot properly function." State v. Braunsdorf, 98 Wis. 2d 569, 580, 297 N.W.2d 808 (1980) (citing State v. Cannon, 196 Wis. 534, 536, 221 N.W. 603 (1928)). Cannon explained:

From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers.

Id., 196 Wis. at 536. Investment of a condemnation award for the benefit of the condemnee is not a power without which a court cannot properly function. For these reasons, we reject Bayshore's argument.

B. Statutory authority

¶ 15. The second potential basis to affirm the trial court's order is statutory authority — the basis upon which the trial court relied in making its decision. It is undisputed that Wis. Stat. § 59.40(3)(b) gives clerks the authority to invest awards and directs that the accrued income shall be paid into the county's general fund. See id. At issue is the meaning of § 59.40(3)(c), which appears to limit § 59.40(3)(b). This presents an issue of statutory interpretation, which we review de novo. State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 14, 271 Wis. 2d 547, 679 N.W.2d 514.

¶ 16. "In construing a statute, our goal is to ascertain the intent of the legislature." Grinnell Mut. Reinsurance Co. v. State Farm Mut. Auto. Ins. Co., 2004 WI App 32, 9, 269 Wis. 2d 873, 676 N.W.2d 573. "We begin with the language of the statute and if it clearly sets forth the legislature's intent, we apply that language to the facts." Id. Except where specially defined words or technical phases are used, "[statutory language is given its common, ordinary, and accepted meaning." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If "statutory language is ambiguous — that is, capable of being understood by reasonably well-informed persons in two or more senses — then we may employ sources extrinsic to the statutory text. These extrinsic sources are typically items of legislative history." Commissioner of Ins. v. Fiber Recovery, Inc., 2004 WI App 183, 16, 276 Wis. 2d 495, 687 N.W.2d 755.

¶ 17. As noted earlier, Wis. Stat. § 59.40(3)(c) provides: "A judge may direct that par. (b) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court." The Clerk contends that the first sentence of § 59.40(3)(c) is unambiguous, and that:

it is clear that the phrase is intended solely as a limitation on the clerk's investment authority; that is, that the judge can order that the power given to the clerk in par. (b) may not be exercised in certain cases. However, the circuit court and [Bayshore] argue that the phrase is more than a "veto" authority over the clerk, but is further a positive grant of authority to a judge to take funds from the clerk for private investment.

¶ 18. Bayshore does not explicitly state whether it believes Wis. Stat. § 59.40(3)(c) is ambiguous. However, it asserts that

[o]nce a court declares subsection (b) inapplicable in any given case, the Clerk loses any claim to, influence over, or right in the funds on deposit. No other statute gives the Clerk the right to use another person's money for the county's benefit. With no remaining claim to the Award, the Clerk has no basis upon which to object to the Circuit Court engaging its inherent and equitable power to direct where and how the funds will be held until reaching their final distribution.

Bayshore explains: "[T]he Clerk's ability to invest others' money and retain the earnings thereon is subject to court's veto in any given case."

¶ 19. The trial court interpreted the statute similar to Bayshore, concluding that Wis. Stat. § 59.40(3)(c) confers on the trial court discretion "to decide whether the funds may be transferred or shall remain invested in the County's general fund." It was with this in mind that the trial court exercised its discretion and ordered the funds transferred to a private money market account where interest could accrue for the property owners' benefit.

¶ 20. We conclude that Wis. Stat. § 59.40(3)(c) is ambiguous because it is "capable of being understood by reasonably well-informed persons in two or more senses." See Kalal, 271 Wis. 2d 633, ¶ 47. Specifically, the sentence "A judge may direct that par. (b) does not apply to certain funds paid into the office" could be interpreted as affecting: (1) a clerk's authority to invest deposited funds; (2) a clerk's authority to invest funds in certain investment vehicles; (3) the directive that interest shall accrue for the benefit of the general fund; or (4) a clerk's authority to continue to manage the deposited funds.

¶ 21. Because we conclude that Wis. Stat. § 59.40(3)(c) is ambiguous, we must look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. See Kalal, 271 Wis. 2d 633, ¶ 48. We begin with the legislative history, which provides considerable insight.

¶ 22. The original statute that gave clerks of courts power to invest deposited funds was Wis. Stat. § 59.42(14) (1969). See Bronfman, 164 Wis. 2d at 723. Section 59.42(14) (1969) provided in its entirety:

Investment op funds not identifiable. The clerk may invest any funds paid into his office and which are being held for repayment, but which are not specifically identifiable to any account because of their necessary intermingling with related transactions. Such investments shall be made in suitably protected accounts in the same manner as a trustee would be required to invest funds held in trust, and all income that may accrue shall be paid into the county general fund.

Section 59.42(14) (1969) was renumbered and amended in 1979, resulting in subsections (a) and (b), which provided:

Investment of funds, (a) Except as provided in par. (b), the clerk may invest any funds paid into his or her office and which are being held for repayment. The investments shall be made in suitably protected accounts in the manner specified in s. 66.04(2) and all income that may accrue shall be paid into the county general fund.
(b) A judge may direct that par. (a) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court.

See § 59.42(14) (1979).

¶ 23. The 1979 legislation included the following analysis from the Legislative Reference Bureau:

Presently, a clerk of a court of record may invest funds paid into his or her office in the same manner a trustee would be required to invest funds held in trust. The income is paid into the county general fund. The funds covered are those which are being held for repayment, but which are not specifically identifiable to any account due to necessary intermingling with related transactions.
This proposal specifies that the investment provisions relate to all funds paid into the clerk's office, but that a judge may direct that the investment provisions do not apply to certain funds paid into the office relating to cases handled by the judge.
For further information, see the fiscal estimate which will he printed as an appendix to the proposal.

Analysis of 1979 Assembly Bill 756. One attached fiscal estimate drafted by the Department of Local Affairs and Development stated:

The bill extends the permissive authority of a clerk of court to invest any funds paid to the clerk's office unless a judge specifies otherwise for funds relating to cases before the judge's court. The hill would increase the potential funds available and therefore increase the investment income derived from clerk of courts accounts. The bill would therfore [sic] potentially result-in increased revenues for counties.
The exact fiscal effect of this bill, however, is not possible to determine because of the following unknowns:
1. The exact amount of funds potentially available to the clerk of court for investment.
2. The exact rate of return that the clerk of court could receive on invested funds.
3. The length of time that funds may be invested.
4. The frequency with which a judge would exercise his or her individual discretion relating to investment of funds for cases before his or her court.

¶ 24. A second fiscal estimate, drafted by the Director of State Courts, stated:

This bill expands the investment powers of the clerk of circuit court but allows a judge to direct that the investment provisions do not apply to certain funds in cases handled by the judge.
Although this measure would increase the amount of funds available for investment, it is not expected to have much effect upon the time of the clerk of court. As a result, no state or local fiscal impact is estimated for this bill.

(Emphasis added.)

¶ 25. This legislative history is illuminating. Neither fiscal estimate spoke in terms of removing the funds from the clerk's control, but rather only of allowing a judge to direct that investment provisions did not apply. It is clear that the primary purpose of the legislation was to alter the clerk's authority to invest funds within his or her control. Indeed, there was a handwritten note on one draft that expressed concern about continuing to allow clerks to invest accounts "in the same manner as a trustee would be required to invest funds held in trust...." See Wis. Stat. § 59.42(14) (1977). That handwritten note states that the current provision represents the " 'Prudent man' rule" and that "this is much too broad an authority for public funds." This handwritten note suggested language that would limit the type of investments the clerk could make; that suggestion appears to have resulted in the language "in the manner specified in s. 66.04(2)." See § 59.42(14)(a) (1979).

¶ 26. Wisconsin Stat. § 59.42(14)(b) (1979) was created at the same time as changes were made to specifically describe the clerk's investment authority. There is no suggestion in any of the legislative history that the legislation was intended to remove the clerk's authority to continue to manage deposited funds or to cast doubt on the intent that the counties benefit from such investment. These facts provide convincing evidence that the intent of the legislature, expressed in § 59.42(14)(b) (1979) (now Wis. Stat. § 59.40(3)(c)), was only to allow the trial court to limit or veto the clerk's investment authority. Nothing in the legislative history supports a legislative intent to create a new procedure in this statute whereby the trial court could remove the award from the clerk's control and direct that those whose land was condemned receive future interest on the award.

¶ 27. Had the legislature intended by Wis. Stat. § 59.42(14) (1979) to allow the trial court to direct removal of funds from the clerk's control while litigation was pending, it could have modified existing statutes rather than add subsec. (b) to § 59.42(14) (1979). For example, the legislature has created Wis. Stat. § 757.25, which permits removal of funds held for repayment in limited circumstances which do not apply here. The legislature has also specifically provided a mechanism for condemnations under Wis. Stat. § 32.06 whereby a property owner can withdraw an award by posting a bond for half the amount of the award to insure that it will pay any amount due to the condemning authority if there is a court reduction in the award. See § 32.06(H). Interpreting Wis. Stat. § 59.40(3)(c) as allowing the trial court to remove the award from the clerk's control and allow litigants to earn interest on the award while litigation continues would undermine and render superfluous these other statutes that allow the withdrawal of funds from the clerk of courts only under certain limited circumstances. This would violate the rules of statutory construction that we not construe a statute so as to render superfluous provisions of other statutes, see Blazekovic v. City of Milwaukee, 2000 WI 41, 30, 234 Wis. 2d 587, 610 N.W.2d 467, and that we interpret each statute "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results[,]" Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 28. Wisconsin courts have also recognized that " 'where a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed.'" Kimberly-Clark Corp. v. Public Serv. Comm'n, 110 Wis. 2d 455, 463, 329 N.W.2d 143 (1983) (citation omitted).

The legislature has created provisions that allow for the removal of funds from the clerk's control in condemnation cases proceeding under Wis. Stat. § 32.06, but has not done so with respect to condemnation cases proceeding under Wis. Stat. § 32.05. Had the legislature wanted to provide a mechanism for pre-dispute resolution withdrawal for condemnations under § 32.05, it could have done so, as it has done for condemnations under § 32.06. The failure to provide that alternative here is a legislative decision that should not be ignored.

¶ 29. Finally, we note that there is no indication in any of the legislative history, condemnation statutes or statutes governing the deposit of funds with the clerk of courts that suggests that the legislature intended to create an exception to its policy determination that the county, rather than the parties disputing entitlement to deposited funds, should benefit from the accrual of interest. The legislature has made that policy decision. We have previously held that such policy is not an unlawful taking. See Bronfman, 164 Wis. 2d at 727-29.

¶ 30. Having considered the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent, see Kalal, 271 Wis. 2d 633, ¶ 48, we are convinced that the legislature's intent in creating Wis. Stat. § 59.40(3)(c) was not to allow the trial court to remove funds from the clerk's management or direct that any earned interest be given to the litigants rather than the county's general fund. For these reasons, we conclude that the trial court lacked authority to order the Clerk to transfer the Award to a private money market account where the interest would accrue for the litigants' benefit. We reverse and remand for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded for further proceedings consistent with this opinion.

FINE, J.

¶ 31. (dissenting). In my view, by misreading the clear language of Wis. Stat. § 59.40(3), Milwaukee County seeks to hijack funds that Wis. Stat. § 32.05(7)(d) says belongs to others. The Majority agrees with Milwaukee County. I respectfully dissent.

¶ 32. As the Majority recognizes, Wis. Stat. § 32.05(7)(d), which is applicable to this case, provides, as material here, that a condemnor's check "for the amount of the award" (less deductions not relevant here) shall either be sent to the property owners "or be deposited with the clerk of the circuit court of the county for the benefit of the persons named in the award." (Emphasis added.) As the Majority also notes, Wis. Stat. § 59.40(3) sets the general rule as to how money deposited with the clerk of circuit court is handled. It reads:

CleRK of COURT; fees; investment of funds, (a) The clerk of the circuit court shall collect the fees that are prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid.
(b) Except as provided in par. (c), the clerk may invest any funds that are paid into his or her office and are being held for repayment. The investments shall be made in suitably protected accounts in the manner specified in s. 66.0603 (lm) and all income that may accrue shall be paid into the county general fund.
(c) A judge may direct that par. (b) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court.

(Emphasis added.) Section 59.40(3) (b) has three parts. It:

(1) empowers the Clerk to "invest" funds paid into his or her office;
(2) limits the scope of the Clerk's investment strategy; and, also,
(3) says that investment income goes to the "county general fund."

But, these grants of authority are specifically limited by subparagraph (c), which permits the judge to direct, with respect "to funds relating to cases before his or her court," that subparagraph (b) not apply. Subparagraph (c) encompasses, in haec verba, the entirety of subpara-graph (b), and, as material here, thus specifically permits the trial judge to direct that income from funds relating to cases pending in his or her court not be paid into the county's general fund, but, rather, as required here by § 32.05(7)(d), be held "for the benefit of the persons named in the award." That is the nub of what the trial judge did in this case, and I would affirm.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 32.05(7) provides in relevant part:
      Award of compensation. If the owner has not accepted the jurisdictional offer within the periods limited in sub. (6) or fails to consummate an acceptance as provided therein, the condemnor may make an award of damages in the manner and sequence of acts as follows:
      (d) On or before said date of taking, a check, naming the parties in interest as payees, for the amount of the award less outstanding delinquent tax liens . .. and less prorated taxes of the same year, if any ... shall at the option of the condemnor be mailed by certified mail to the owner or one of the owners of record or be deposited with the clerk of the circuit court of the county for the benefit of the persons named in the award. The clerk shall give notice thereof by certified mail to such parties. The persons entitled thereto may receive their proper share of the award by petition to and order of the circuit court of the county. The petition shall be filed with the clerk of the court without fee.
      (Emphasis supplied.)

       This amount represents the Award of Compensation, $14,755,000, minus prorated 2004 real estate taxes.

       The trial court order stated that Bayshore would inform the Clerk of the particular bank branch where the funds should be deposited.

       Bayshore correctly notes that the Clerk challenges only the trial court's authority to transfer the Award, not its exercise of discretion in doing so. Because we conclude that the trial court lacked authority to order the transfer, there is no need to consider the trial court's exercise of discretion.

       The language in Wis. Stat. § 59.40(3)(b) and (c) that is at issue in this case is identical to language created in 1979, see Wis. Stat. § 59.42(14) (1979), except that the statute has undergone renumbering, and the statute referenced within § 59.40(3)(b) is Wis. Stat. § 66.0603(lm), rather than Wis. Stat. § 66.04(2) (1979), which was referenced in § 59.42(14) (1979).

       Bayshore suggests that Bronfman v. Douglas County, 164 Wis. 2d 718, 476 N.W.2d 611 (Ct. App. 1991), is distinguishable because the property owner sought interest retroactively, rather than asking the trial court to award interest while the condemnation award was being litigated. While this is one basis to distinguish the case, Bronfman's holding that Wis. Stat. § 59.42(2) (1989-90) (now Wis. Stat. § 59.40(3)(b)) allows the clerk to invest "any funds held for repayment" paid into the clerk's office, including condemnation awards deposited with the clerk, is applicable here. See Bronfman, 164 Wis. 2d at 721-24.

       Wisconsin Stat. § 757.25 provides:
      Money in court, how deposited. The judge of any court of record on the application of a party to any action or proceeding therein who has paid $1,000 or more into court in the action or proceeding may order the money to be deposited in a safe depository until the further order of the court or judge thereof. After the money has been so deposited it shall be withdrawn only upon a check signed by the clerk of the court pursuant to whose order the deposit was made and upon an order made by the court or the judge thereof. The fee for the clerk's services for depositing and disbursing the money is prescribed in s. 814.61 (12) (a).
      The parties agree that § 757.25 does not apply here because the depositing authority, the CDA, did not seek to remove the funds from the Clerk's control.

       Wisconsin Stat. § 32.06(11) provides:
      Withdrawal op compensation paid into court; bond. If either party appeals from the award of the commission, the owner shall not be entitled to receive the amount of compensation paid into court by condemnor unless the owner files with the clerk of the court a surety bond executed by a licensed corporate surety company in an amount equal to one-half of the commission's award, conditioned to pay to the condemnor, any sums together with interest and costs as allowed by the court, by which the award of the commission may be diminished.

       We do not decide whether Wis. Stat. § 59.40(3)(c) allows a trial court to prevent the clerk of courts from investing deposited funds at all, or whether that section simply allows the trial court to limit the clerk's choice of investment vehicles, or both, see ¶ 20, as this decision is not necessary to resolve this case, and was not fully briefed by the parties. See State v.

        Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

       The full statute as material to this appeal is set out in footnote two of the Majority opinion.

       Thus, I do not understand why the Respondents spent so many pages of their appellate brief on a wide-ranging, irrelevant, confusing, and essentially self-defeating excursion into the limitless landscape of "inherent authority."


author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeris M. Moore, Defendant-Appellant.
    Court of Appeals

      No. 2005AP1204-CR.

      Submitted on briefs May 1, 2006.

      Decided July 5, 2006.

    2006 WI App 162
    (Also reported in 721 N.W.2d 725.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and Mark A. Neuser, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Curley, JJ.
   WEDEMEYER, PJ.

¶ 1. Jeris M. Moore appeals from a judgment entered after he pled guilty to one count of second-degree sexual assault of a child. He also appeals from an order denying his postconviction motion. He claims that the trial court erroneously exercised its discretion when it denied his postconviction motion without reviewing confidential, sealed juvenile records. Because we conclude that the trial court should have reviewed in camera the sealed records in order to determine whether their contents rendered the information presented at sentencing inaccurate, we reverse the order and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. On September 27, 2003, the victim, then thirteen-year-old Keiera B., was sleeping over at a friend's home. Moore, then seventeen years old, was Keiera's girlfriend's older brother.

¶ 3. Keiera reported to police that she awoke sometime in the middle of the night to find her clothes had been lowered and Moore was lying on her with his penis in her vagina. Moore admitted that he had pulled down Keiera's pants and engaged in penis-to-vagina sexual intercourse. He claimed that Keiera participated willingly and that he got caught up "in the moment." He indicated that he knew this was wrong and, because he was older, he should not have committed the sexual act.

¶ 4. As a result of the incident, in October 2003, Moore was charged with one count of second-degree sexual assault of a child. He entered into a plea agreement with the State, wherein he agreed to plead guilty in exchange for the State's promise not to make a specific sentencing recommendation. A presentence investigation (PSI) report was ordered.

¶ 5. The sentencing proceeding occurred on April 5, 2004. Defense counsel asked for an imposed and stayed prison sentence with a period of probation and conditional jail time. The PSI writer recommended six-to-eight years of initial confinement followed by five-to-six years of extended supervision. There was discussion at the sentencing hearing about Moore's two prior juvenile contacts, which resulted in arrests for second-degree sexual assault. The first was a 1999 incident where Moore allegedly groped a thirteen-year-old's breast, and the second was a 2001 incident where Moore allegedly attempted to force a fifteen-year-old girl to have sexual intercourse, which was interrupted by the girl's mother who forced her way into the room. Although Moore was arrested, the cases were never prosecuted.

¶ 6. In response to defense counsel's concern about the PSI writer's presentation regarding the two prior contacts, the trial court indicated it would make a "strong distinction" between the two prior incidents because they were contacts and not convictions. Later in the sentencing hearing, however, the trial court referred to the prior contacts as "red flags" that Moore failed to heed, and stated that "an individual who continues to get himself involved in this type of sexual contact and then denies it is an individual of poor character."

¶ 7. Ultimately, the trial court imposed a sentence of fifteen years, consisting of seven years of initial confinement and eight years of extended supervision. Judgment was entered. Moore filed a postconviction motion seeking sentence modification and requested permission to support his postconviction motion with his confidential juvenile documents submitted under seal. He alleged that the juvenile court records provided a "more exculpatory picture" of the two prior contacts than what was reported in the PSI and that, as a result, the trial court relied on inaccurate information when it imposed sentence. The trial court denied the motion without reviewing the sealed records and without holding a hearing, concluding that sentence modification was not warranted. Moore now appeals.

DISCUSSION

¶ 8. The issue in this case is whether the trial court erred when it denied Moore's motion without an in camera review of the confidential juvenile records. We conclude that the trial court should have conducted an in camera review to determine whether the contents of those records rendered the resulting sentence one that was based on inaccurate information. Because the trial court declined to review the confidential records, we reverse the postconviction order and remand the matter to the trial court with directions to conduct an in camera review. After the review has occurred, the trial court shall determine whether the records rendered the information relied on at sentencing inaccurate. If the trial court determines the confidential records did not render the sentencing information inaccurate, then the order denying Moore's postconviction motion shall be reinstated. If the trial court determines that the confidential records did result in reliance on inaccurate information at sentencing, then Moore's postconviction motion should be granted and resentencing should be ordered.

¶ 9. Moore alleges here that the PSI writer did not provide a neutral or accurate account of his two prior juvenile contacts. He contends that the thirty pages of juvenile court records paint a different, more exculpatory picture than that presented by the PSI writer and the prosecutor. Specifically, he contends that the district attorney's office declined to prosecute the two prior contacts because of inconsistencies in the victims' statements and because proving that a crime occurred would be problematic. He points to a statement from a witness to the 2001 incident who overheard Moore and the victim talking and laughing, but did not hear the victim call for help. Moore argues that he was falsely accused of the prior sexual assault incidents. He argues that his sentencing in this case was based in part on the trial court's erroneous understanding of his juvenile record.

¶ 10. "A defendant has a due process right to be sentenced based on accurate information." State v. Groth, 2002 WI App 299, ¶ 21, 258 Wis. 2d 889, 655 N.W.2d 163 (citation omitted). This is an issue that we review independently. Id. In order to establish a violation of due process sufficient to justify resentencing, a defendant must show that the challenged information was inaccurate and that the court relied on it. Id., ¶¶ 21-22.

¶ 11. Here, it appears from the record that the trial court relied in part on the prior juvenile contacts when it imposed sentence:

At the same time, Mr. Moore, there are some very negative aspects of your character. These previous contacts with regard to sexual assault are very troubling. Again, all you have to do, Mr. Moore, is put yourself in a position of coming to a sentencing in which you want to address the Court after one of your sisters or your mother or your grandmother have been sexually assaulted, and hearing that that person, although not previously criminally convicted, had had contacts with the criminal justice system for breast fondling in... January of 1999, for this incident at S.W's home, which is detailed in the top of page 4 of the PSI, which is corroborated by others, the victim's mother having to push her way into the room, the girl at that point having to pull up her pants. There are suspicions by one of your teachers or your cou[n]selors contained here within the PSI about you being hyper-sexualized.
[T]hose two incidents, Mr. Moore, were red flags. They were red flags where you should have understood that you cannot act in that manner, that sexuality is not to be treated in that way, and you didn't heed those red flags. They were contacts. They were not convictions. I do not consider them as such, but it is an argument of strong logical persuasion that an individual who continues to get himself involved in this type of sexual contact and then denies it is an individual of poor character.
I believe the risk to the community for Mr. Moore is at least high intermediate. It's because of the escalation in the sexual contact.
and there are indications that law enforcement has been involved in a situation similar to that earlier, as well as sexual contact touching earlier on.

¶ 12. In particular, the trial court considered the prior contacts as a negative aspect of Moore's character. The trial court, understandably, accepted the information from the PSI report as accurate. Moore's claim now is that the thirty pages of confidential, sealed juvenile court records will alter that assessment.

¶ 13. Because the trial court refused to allow Moore to submit the confidential records from the juvenile proceedings, an assessment of whether or not the challenged information was inaccurate could not be conducted. The trial court cannot rule that the information is accurate without looking at the court records themselves. The court records provide the most reliable information as to the events and circumstances surrounding the 1999 and 2001 sexual assault contacts. Accordingly, we conclude that the trial court should conduct an in camera review of the confidential juvenile records to determine whether the records contain any information which renders the trial court's reliance on the prior sexual assault incidents inaccurate.

¶ 14. If the trial court determines from its in camera review that it did not rely on any inaccurate information, then it shall reinstate the order denying Moore's postconviction motion. If, however, the trial court determines that the submissions do demonstrate that the sentencing was based on inaccurate information, then the trial court should grant Moore's motion and order a new sentencing hearing.

By the Court. — Judgment affirmed; order reversed and cause remanded with directions.

       Based on our disposition, it is not necessary for us to reverse the judgment. Depending upon what happens with the in camera review, the trial court may need to amend the judgment.

       The trial court shall be guided by the new standard on this issue set forth in State v. Tiepelman, 2006 WI 66, ¶ 2, 291 Wis. 2d 179, 717 N.W.2d 1.