author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Walter Leutenegger, Defendant-Appellant.
    Court of Appeals

      No. 03-0133-CR.

      Submitted on briefs September 8, 2003.

      Decided June 24, 2004.

    2004 WI App 127
    (Also reported in 685 N.W.2d 536.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Bill Ginsberg of Mandell & Ginsberg, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jonathon G. Kaiser, assistant district attorney for Dane County.
    Before Vergeront, Lundsten and Higginbotham, JJ.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3) (2001-02).

   LUNDSTEN, J.

¶ 1. This case involves the exigent circumstances exception to the general requirement that an officer have a warrant before making a nonconsensual entry into a home. A police officer entered Walter Leutenegger's garage without a warrant after receiving information indicating that Leutenegger was highly intoxicated and locating him in his car in his garage. Leutenegger was subsequently arrested, prosecuted, and convicted of driving while intoxicated. Leutenegger appeals, arguing that the circuit court should have suppressed evidence obtained after the officer entered his garage because that entry was illegal. We disagree and affirm the circuit court.

Background

¶ 2. On July 2, 2001, a citizen telephoned police to report what he believed to be an intoxicated driver. The citizen, using a cell phone, called from a tavern parking lot and gave specific information indicating that a man, later identified as Leutenegger, was very intoxicated and was driving a car away from the tavern. Using information supplied by the citizen, a police officer located Leutenegger sitting in his car in an attached garage to Leutenegger's home. After viewing the situation for a short time, the officer approached Leutenegger's open garage door and proceeded into the garage, making contact with Leutenegger, who was still in his car. After entering the garage, the officer made observations supporting the inference that Leuteneg-ger was intoxicated. Leutenegger was arrested, and police subsequently obtained a breath test result showing that Leutenegger's blood alcohol content was .28%.

¶ 3. Leutenegger moved to suppress all evidence obtained after the police officer entered his garage. The circuit court concluded that the attached garage was part of the curtilage of the Leutenegger residence and, therefore, the officer's warrantless entry into the garage was presumptively unconstitutional. However, the court also concluded that the entry was justified by exigent circumstances, and denied the motion. Leu-tenegger then pled no contest to the charge of operating a motor vehicle while intoxicated, fourth offense. He now challenges the circuit court's suppression ruling. More detailed facts are set forth later in this opinion.

Discussion

Consideration of an Officer's Subjective Beliefs When the Asserted Justification for a Warrantless Entry of a Home is the Possible Need to Render Assistance or Prevent Harm

¶ 4. The question in this case is whether the officer's warrantless entry into Leutenegger's attached garage was lawful because of a possible need to render assistance or prevent harm. Leutenegger, relying on State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983), argues that the officer's action must have been subjectively motivated by a perceived safety concern, that is, that the particular officer must have subjectively believed that Leutenegger likely needed assistance or still posed a danger to others. Further, Leutenegger contends that the record in this case does not support a finding that the officer was actually motivated by her concern for the safety of Leutenegger or others.

¶ 5. We disagree with Leutenegger that the objective/subjective test used in Boggess is the correct test to apply here. More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, ¶ 30, 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995) ("[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.").

¶ 6. In Boggess, the supreme court used the term "emergency rule" when faced with the State's argument that a warrantless home entry was legal because of a report that children had been battered, were in need of medical attention, and lived with a man named Boggess who had a "bad temper." Boggess, 115 Wis. 2d at 445, 446, 457-58. The Boggess court relied on State v. Pires, 55 Wis. 2d 597, 604, 201 N.W.2d 153 (1972), which equates the "emergency doctrine" with the "exigent-circumstance rule." Boggess, 115 Wis. 2d at 450. The two-pronged objective/subjective test used in Boggess does not come from Pires, however, but instead from State v. Prober, 98 Wis. 2d 345, 297 N.W.2d 1 (1980), overruled on other grounds, State v. Weide, 155 Wis. 2d 537, 455 N.W.2d 899 (1990). Under the two-pronged objective/subjective test used in Boggess, a warrantless entry based on a safety concern is illegal unless the entering officer subjectively believes that entry is necessary to render assistance or prevent harm. See Boggess, 115 Wis. 2d at 449-51; see also State v. Rome, 2000 WI App 243, 239 Wis. 2d 491, 620 N.W.2d 225 (two-pronged objective/subjective test used where police entered a home without a warrant based on information that a man was a threat to a young girl in the home with him).

¶ 7. If we applied the objective/subjective test used in Boggess, we would need to address Leutenegger's argument that the record does not support the circuit court's factual finding that the officer here was motivated in part by a belief that Leutenegger might need assistance and that Leutenegger still posed a danger to others. However, when our supreme court most recently dealt with a proffered safety justification for a warrant-less entry under circumstances similar to those before us — that is, in Richter — it applied a purely objective test.

,¶ 8. One issue in Richter was whether an officer's warrantless entry into a mobile home was justified by a possible need to render assistance to the occupants. In that case, an officer was dispatched to a mobile home park because of a report of a burglary in progress. Richter, 235 Wis. 2d 524, ¶¶ 3-7. When the officer arrived, he was flagged down by a person who told the officer that someone had broken into her mobile home and that she had seen the intruder flee her home and enter another mobile home across the street. Id., ¶ 3. The officer went to that mobile home and observed signs of a forced entry. The officer entered the mobile home and that entry led to incriminating evidence against the defendant who, as it turned out, was the owner of that mobile home. Id., ¶¶ 4-9.

¶ 9. The Richter court framed the question this way: "whether [the officer's] warrantless entry into [the defendant's] trailer was justified by the exigent circumstances exception to the warrant requirement and therefore valid under the Fourth Amendment and its Wisconsin constitution counterpart." Id., ¶ 26. "Exigent circumstances" is a term that encompasses several more specific exceptions. The Richter court explained:

There are four well-recognized categories of exigent circumstances that have been held to authorize a law enforcement officer's warrantless entry into a home: 1) hot pursuit of a suspect, 2) a threat to the safety of a suspect or others, 3) a risk that evidence will be destroyed, and 4) a likelihood that the suspect will flee.

Id., ¶ 29. The State argued the "hot pursuit" exception, but separately argued that the warrantless entry was justified because of "a threat to the safety of the suspect or others." Id., ¶¶ 31, 37. The Richter court agreed with this alternative "threat to safety" argument:

Focusing on what was known and could reasonably be inferred by the officer at the time of the entry, we conclude that [the officer] reasonably believed that the intruder he was pursuing posed a threat to the safety of the occupants of Richter's trailer. It was the middle of the night. A stranger had just broken into the Champions' trailer, but was discovered and therefore abandoned whatever crime he intended to commit inside, fleeing into Richter's trailer across the street. There were obvious signs of forced entry at Richter's trailer — an open window (in 40-degree weather), and the knocked out screen lying on the ground. It was reasonable to infer from this that the suspect did not belong there but in fact had broken in, just as he did at the Champions'. There were people sleeping inside Richter's trailer at the time the intruder entered, creating a situation fraught with potential for physical harm if something was not immediately done to apprehend the suspect.

Id., ¶ 41.

¶ 10. Thus, in Richter a stand-alone justification for the warrantless entry was the prevention of possible harm to the occupants of the mobile home. The State makes essentially the same argument here that it made in Richter-, that exigent circumstances justified the warrantless entry because there was reason to believe Leutenegger was in need of assistance or still posed a threat to others. We discern no reason why the test should be different when the person suspected of being in danger or of posing a danger is a suspect, rather than some other party. In these situations, it is the urgent need to enter because of the possible need to render immediate assistance or prevent harm that justifies the warrantless entry. Therefore, we apply Richter because it is the most recent supreme court decision on the topic. See Jones, 195 Wis. 2d at 918 n.8 ("[The court of appeals is] hound by the most recent pronouncements of the Wisconsin Supreme Court.").

¶ 11. Having concluded that Richter applies here, we turn to a description of the test used in that case. The test is objective:

As in other Fourth Amendment cases, the determination of whether exigent circumstances are present turns on considerations of reasonableness, and we apply an objective test. The test is "[w]hether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect's escape."

Richter, 235 Wis. 2d 524, ¶ 30 (quoting State v. Smith, 131 Wis. 2d 220, 230, 388 N.W.2d 601 (1986)).

¶ 12. A warrantless home entry is presumptively unreasonable under the Fourth Amendment. Richter, 235 Wis. 2d 524, ¶ 28. The government bears the burden of establishing that a warrantless entry into a home occurred pursuant to a recognized exception to the warrant requirement. See State v. Hughes, 2000 WI 24, ¶ 17, 233 Wis. 2d 280, 607 N.W.2d 621; State v. Milashoski, 159 Wis. 2d 99, 110-11, 464 N.W.2d 21 (Ct. App. 1990). "[W]e weigh the urgency of the officer's need to enter against the time needed to obtain a warrant." Richter, 235 Wis. 2d 524, ¶ 28.

¶ 13. Whether a warrantless entry into a home is justified by the exigent circumstances exception is a mixed question of fact and law. Id., ¶ 26. A circuit court's findings of evidentiary or historical fact will not be overturned unless they are clearly erroneous. Id. This court independently determines whether facts establish exigent circumstances sufficient to justify a warrantless entry. Id.

¶ 14. If we stopped our legal discussion here, a reader might erroneously conclude that an officer's subjective belief regarding exigency is irrelevant. However, our supreme court recently held, in the Fourth Amendment context, that evidence of an officer's subjective belief is admissible because such evidence may assist a court in analyzing whether facts known to an officer meet the objective standard. State v. Kyles, 2004 WI 15, ¶ 39, 269 Wis. 2d 1, 675 N.W.2d 449. We perceive no reason why this rule should not apply to a court's determination of whether exigent circumstances justify a warrantless entry.

¶ 15. In Kyles, the defendant sought to suppress evidence detected during a protective frisk. The legality of the frisk depended on whether the officer had a reasonable suspicion that the defendant was armed and dangerous. Id., ¶ 7. The central issues in Kyles were whether an officer's testimony about that officer's subjective belief regarding the danger posed was properly admitted and, if properly admitted, for what purpose. The court's resolution of both issues is germane here.

¶ 16. First, Kyles affirmed that a protective frisk may be deemed reasonable under the Fourth Amendment regardless of the officer's actual subjective perception of danger. The court explained that the reasonableness of a protective search is judged solely on an objective standard, "that is, 'whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety and that of others was in danger' because the individual may be armed with a weapon and dangerous." Id., ¶ 10 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968), and State v. McGill, 2000 WI 38, ¶ 23, 234 Wis. 2d 560, 609 N.W.2d 795). In affirming that the standard is objective, the Kyles court explained:

Because an objective standard is applied to test for reasonable suspicion, a frisk can be valid when an officer does not actually feel threatened by the person frisked or when the record is silent about the officer's subjective fear that the individual may be armed and dangerous. The law is very clear on this point.

Kyles, 269 Wis. 2d 1, ¶ 23.

¶ 17. At the same time, Kyles clarified that evidence of an officer's subjective belief is admissible because it may assist the court in analyzing whether the facts known to the officer meet the objective standard:

We conclude that an officer may be questioned about his or her fear or belief that his or her safety or that of others was in danger because the person frisked may have been armed and that a court may consider an officer's fear or belief that his or her safety or that of others was in danger in determining whether the objective standard of reasonable suspicion, was met under the totality of the circumstances. An officer's legal and subjective conclusions are, however, not determinative of the validity of the frisk; a court applies an objective standard to the facts known to the officer. The officer's fear or belief that the person may be armed is but one factor in the totality of the circumstances that a court may consider in determining whether an officer had reasonable suspicion to effectuate a protective weapons frisk.

Id., ¶ 39.

¶ 18. We conclude that Kyles buttresses our conclusion that the test to be applied to the exigent circumstances exception to the warrant requirement is the objective test. Further, Kyles supports our conclusion that an officer's subjective belief regarding exigency is admissible evidence because that evidence may assist the court in assessing whether the officer's conduct was objectively reasonable.

¶ 19. To summarize, whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test. "The test is '[wjhether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life ....'" Richter, 235 Wis. 2d 524, ¶ 30 (quoting Smith, 131 Wis. 2d at 230). In addition to the circumstances known to police at the time of entry, a court may consider the subjective beliefs of police officers involved, but only insofar as such evidence assists the court in determining objective reasonableness. See Kyles, 269 Wis. 2d 1, ¶¶ 23, 37, 39.

Application of the Exigent Circumstances Test to the Facts Here

¶ 20. Leutenegger argues that the circuit court erred in denying his motion to suppress evidence obtained as a result of the officer's entry into his garage. He contends that the circuit court went astray when it concluded that the entry was justified by exigent circumstances. Leutenegger argues that facts indicated he was likely drunk, but that no reasonable officer would have thought there was a grave danger to Leutenegger's safety. Also, Leutenegger contends that no reasonable officer would have thought that a grave danger was posed by the fact that Leutenegger might decide to drive back out of his garage. Leutenegger downplays this hazard, asserting that the officer was in a position to stop Leutenegger's car.

¶ 21. For the reasons set forth in the previous section, we need not address Leutenegger's argument that the record does not support a finding that the officer was actually motivated by her concern for Leutenegger's safety. We will consider the officer's testimony regarding her belief, hut only in the course of determining whether the officer's action was objectively reasonable. Further, we agree with the circuit court's assessment that this is "a difficult case," but also agree with that court that exigent circumstances justified the officer's warrantless entry into Leutenegger's garage.

¶ 22. The record reveals the following. Just past noon on July 2, 2001, a citizen used his cell phone to call 911 from the parking lot of a tavern in Madison. The citizen told the dispatcher that a man, later identified as Leutenegger, appeared very drunk and was attempting to drive away in a car. The citizen described Leutenegger as "an old, extremely drunk guy" who appeared to be in his mid-seventies to early eighties. The citizen said he had seen Leutenegger in the bar where Leutenegger appeared to have been drinking whiskey on the rocks. He said Leutenegger left a cigarette burning in the ashtray and a full drink.

¶ 23. The citizen related much of the information to the dispatcher as the citizen was witnessing the events. He identified Leutenegger's vehicle as an older, dark-colored Hyundai and supplied the license plate number. Referring to Leutenegger, the citizen said: "He just got into his car and he's trying to figure out how to drive it," and "[i]t took him like three minutes just to get out to his car." The citizen told the dispatcher: "He keeps hitting the brake lights. It kind of looks like he was passing out." Asked if Leutenegger was passed out, the citizen responded: "No, well he keeps kind of nodding and coming up to and he's got a seat belt on. But he's moving around in there, so I don't think he's passed out. But I think it might be a good idea to get an officer here to keep him from driving 'cause if he makes it out of the parking lot I don't think he's going to make it too far before he runs into something."

¶ 24. The citizen then described what he saw as Leutenegger drove out of the tavern lot: "He's driving off the curb. Almost ran into a sign. It looks like he's getting ready to pull out eastbound on Old Middleton." "Well, he almost pulled out in front of a truck. He's kind of halfway onto the road now. No, looks like he's coming to the left, so he's going westbound." "He just pulled out right in front of traffic." "He's going about three miles an hour."

¶ 25. The citizen followed Leutenegger while remaining on his cell phone with police and said that Leutenegger was driving about sixteen miles per hour. He said Leutenegger turned a corner and "[h]e's doing a couple miles an hour." The citizen related: "He's honking at people that are backing out a half a block away. He's coming to a full stop." The citizen followed Leu-tenegger to a house. The house was later identified as Leutenegger's house.

¶ 26. The citizen then drove back a few blocks to a main road where he flagged down an officer. This officer had already been apprised of the situation by dispatch, but was not aware of Leutenegger's prior OWI convictions. The citizen and the officer then drove their cars to Leutenegger's house where the citizen told the officer that he had not seen Leutenegger get out of his car. The officer stood in the street in front of Leutenegger's house and could see through the open overhead garage door into the attached garage. The lone car in the garage matched the description the citizen had provided to the dispatcher. The officer observed, from a distance of about fifteen to twenty yards, that Leutenegger was still in the driver's seat. The only testimony the officer gave regarding her subjective belief regarding safety was that Leutenegger was still in his car and "[m]ost people when they pull their car into the garage they exit their vehicle and go into their house. So I was concerned about that." After about a minute, the officer approached, entered the open garage door, and got Leutenegger's attention by knocking on the passenger window.

¶ 27. The circuit court provided a thoughtful analysis of the situation, explaining that the entry was justified both to ascertain the welfare of Leutenegger and to prevent Leutenegger from causing harm to others by backing out of his garage:

What we have is a report of an old, translates elderly person, with apologies to Mr. Leutenegger, as I see him in the courtroom, he is a gentleman with gray hair. But he was reported to be old and extremely intoxicated.
People who think that intoxication is not a life-threatening condition only need to acquaint themselves with the activities of detox, the death of young healthy students from over-intoxication, or have any understanding of the interaction of greater vulnerability of older people and the greater likelihood of being on prescription medications and the danger of interactions of alcohol with such prescription medications to understand that when you have an extremely intoxicated older person that it raises a much stronger concern for the welfare of the person.
Now, the officer wasn't getting-because the officer had reports that this person was so impaired that he couldn't figure out how to drive the car. That it took an inordinately long time to get out to the car. That it appeared that the person was passing out. That the person would nod up and come to. And the plea was to get an officer there to keep this person from leaving the parking lot.
To show the danger of the car leaving the parking lot, one only needs to recall that this car pulled out across the path of a truck, that it was going three miles an hour, so there was nothing sudden that would interfere with the ability to see the vehicle, and the car just pulled out like the truck wasn't there. That creates a high degree of danger and underlines the seriousness of the impairment.
It almost struck a sign. It demonstrated that the driver was having a great deal of difficulty judging where he was and what was his relationship to the road, to other people, that is shown by the beeping at people a half a block away.
The officer also had information it appeared he was drinking whiskey straight on the rocks. That he left a burning cigarette in the ashtray ....
The officer arrived a minute after the vehicle had arrived according to the citizen witness and the officer, and the person did not exit the vehicle. The officer did not know why. Whether the person had passed out; whether the person was comatose; whether the person had vomited and aspirated the vomit; are all possibilities that the officer could not judge without entering in to at least ascertain welfare.
. . . [T]he officer was able to observe that there was no exit from the vehicle and return to the house ....
There are also aspects of danger to others that I think on an objective basis were present. The officer didn't testify about them. They are that this - that the vehicle, as long as the driver was in the driver's position, could start the car and commence driving again.
One can present a grave danger to others going three miles per hour. That was demonstrated by pulling out of the lot in front of an oncoming truck that would have every reason to believe that that car would not come out into the roadway. And whether or not the officer standing at the foot of the driveway could stop the car from doing that is very, veiy doubtful [in] my mind.

¶ 28. We agree with this analysis. The facts would have led a reasonable officer to conclude that Leuteneg-ger was in his seventies or eighties and highly intoxicated. As the circuit court explained, this age, combined with a high degree of intoxication, would lead a reasonable officer to be concerned about Leutenegger's health.

¶ 29. The officer also observed that Leutenegger delayed leaving his car for no apparent reason. The officer knew that the citizen had followed Leutenegger to Leutenegger's home and returned a short distance to a main street where the citizen made contact with the officer. After driving a sliort distance to Leutenegger's house, the officer stood in the street for about a minute. Combining these time periods, it is apparent that, after driving into his garage, Leutenegger sat in his car for at least two to three minutes before the officer entered the garage. This might seem like a short time, unless one looks at a clock, watches two or three minutes go by, and considers the normal time it takes to get out of a car after parking.

¶ 30. The circuit court credited the officer's testimony that she was subjectively motivated, in part, by a concern for Leutenegger's safety. Part of this testimony provides some assistance. The officer said she was concerned because "[m]ost people when they pull their car into the garage they exit their vehicle and go into their house." The obvious inference is that the officer thought Leutenegger might be experiencing a physical problem related to his intoxication that was preventing him from taking the normal action of exiting his car and entering his home. We agree with the officer that most people exit their cars shortly after parking at their homes. We also assume, as we infer the circuit court assumed, that it appeared to the officer that Leuteneg-ger was simply sitting in the driver's seat, as opposed to moving about gathering items or engaging in some other activity. To this extent, the officer's testimony reflects that her subjective belief was based on a common-sense assumption regarding normal human activity. We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.

¶ 31. The parties discuss the alternative of obtaining a telephonic search warrant. The circuit court rejected Leutenegger's argument that the officer should have attempted to obtain a telephonic warrant based on the court's knowledge that such warrants are highly unusual in Dane County and that there would have been a substantial delay in obtaining a telephonic warrant. We need not decide whether a circuit court may rely on personal knowledge of such matters when ruling on a suppression motion. Even under optimal circumstances, it would have taken several minutes to contact a judge, relate the facts, and obtain a telephonic warrant. The delay inherent in obtaining a search warrant would have been in conflict with the very reasons it was reasonable for the officer to immediately enter the garage without a warrant; that is, there was reason to believe that Leutenegger was currently in distress or might abruptly decide to drive back out of the garage.

¶ 32. Accordingly, we affirm the circuit court's conclusion that exigent circumstances justified the war-rantless entry of Leutenegger's garage. It follows that we affirm the denial of Leutenegger's suppression motion.

By the Court. — Judgment affirmed.

       The State has not argued that the entry into Leutenegger's garage was justified under the "community caretaker" doctrine. We need not address the "community caretaker" doctrine, or its relationship to State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, because we conclude that Richter alone provides an appropriate framework for analyzing the entry at issue here. We note, however, that the "community caretaker" test has been applied where the State justified a warrantless home entry based on safety concerns regarding possible occupants. See State v. Paterson, 220 Wis. 2d 526, 533-34, 583 N.W.2d 190 (Ct. App. 1998) (warrantless entry based on neighbor's report of suspicious activity in a residence suggesting a possible burglary in progress and, therefore, a possible threat to the occupants of the apartment). We further observe that neither Richter nor State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983), mentions the community caretaker doctrine.

       We stress that we do not address the community caretaker doctrine and, therefore, do not address whether the distinctions among the situations discussed in the text matter for purposes of that doctrine.

       The objective test used in Richter was applied to the question whether home entries were justified by safety concerns in both State v. Londo, 2002 WI App 90, ¶ 10, 252 Wis. 2d 731, 643 N.W.2d 869, and State v. Mielke, 2002 WI App 251, ¶¶ 6-10, 257 Wis. 2d 876, 653 N.W.2d 316, review denied, 2003 WI 1, 258 Wis. 2d 108, 655 N.W.2d 128 (Nov. 12, 2002) (No. 01-3116-CR).

       The State does not challenge the circuit court's holding that the garage was part of the curtilage of Leutenegger's house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that an attached garage is part of the curtilage. See Los Angeles Police Protective League v. Gates,
        907 F.2d 879, 885 (9th Cir. 1990); State v. Pink, 648 N.W.2d 107, 109 (Iowa 2002). We caution, however, that such determinations are fact specific and, in a particular case, a house and attached garage may be situated such that entry through an open garage door to an "exterior" house door within the garage may appear to be the least intrusive means of establishing contact with an occupant. Under such circumstances, an attached garage might be considered non-curtilage for the limited purpose of making contact with an occupant, similar to some porches. See United States v. Santana, 427 U.S. 38, 42 (1976); State v. Potter, 72 S.W.3d 307, 313-14 (Mo. Ct. App. 2002).

       Several of the facts recited in this opinion come from the dispatch tape which has not been transcribed, but which has been heard by the circuit court and this court.

       The officer did not testify that Leutenegger was not moving about, but we think it is obvious that the circuit court made this factual inference. We also conclude that the officer's testimony supports this inference. Appellate courts may assume facts, reasonably inferable from the record, in a manner that supports the trial judge's decision. See, e.g., State v. Wilks, 117 Wis. 2d 495, 503, 345 N.W.2d 498 (Ct. App.), aff'd, 121 Wis. 2d 93, 358 N.W.2d 273 (1984); see also State v. Hockings, 86 Wis. 2d 709, 722, 273 N.W.2d 339 (1979).


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Chenequa Land Conservancy, Inc., Plaintiff-Respondent, v. Village of Hartland, Defendant-Appellant, Lutheran High School Association of Greater Milwaukee, Defendant-Co-Appellant, Frank Busalacchi, Defendant.
    Court of Appeals

      No. 03-2486.

      Submitted on briefs March 18, 2004.

    Decided June 24, 2004.

    2004 WI App 144
    (Also reported in 685 N.W.2d 573.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Raymond J. Pollen and Amy J. Doyle, Crivello, Carlson & Mentkowski, S. C., Milwaukee.
    On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Jeffrey A. Schmeckpeper, Kasdorf, Lewis & Swietlik, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William P. O'Connor and Mary Beth Peranteau, Wheeler, Van Sickle & Anderson, S.C., Madison.
    Before Deininger, PJ., Vergeront and Lundsten, JJ.
   VERGERONT, J.

¶ 1. Chenequa Land Conservancy, Inc. filed this action seeking a declaration that the conveyance of state property to the Village of Hartland was void because the conveyance violated Wis. Stat. § 84.09(5) (2001-02) and a manual of the Wisconsin Department of Transportation (DOT). The Conservancy also sought an order that the property be reconveyed to the state. The circuit court granted summary judgment in favor of the Conservancy determining that title to the property remained in the state. Hartland, along with the Lutheran High School Association of Greater Milwaukee (the Association), appeals that judgment. The dispositive issue is whether the Conservancy has standing to bring this action. We conclude it does not. We therefore reverse and remand with directions to dismiss the amended complaint.

BACKGROUND

¶ 2. The property that is the subject of this dispute consists of approximately seventy-eight acres in the Town of Merton, Waukesha County. In 2002, DOT declared this land surplus. In October 2002, both Hart-land and the Village of Chenequa submitted offers to purchase. Hartland's offer was for $15,000 per acre contingent upon Hartland entering into an agreement with the Association to convey to the Association approximately sixty acres for the construction of a private high school; the remaining land was to be used for educational or recreational purposes and for public right-of-ways. Hartland's offer also provided for a connecting road to be built without public funds.

¶ 3. Chenequa offered to purchase approximately sixty-four acres for $15,500 per acre. Prior to making this offer, Chenequa entered into an agreement with the Conservancy whereby Chenequa agreed to purchase the property with the understanding that it would convey the property to the Conservancy, which proposed to maintain the property consistent with Chenequa's "open space" plan. Under the agreement, the Conservancy was to deposit funds in an escrow account equal to Chenequa's estimated acquisition costs, which Chenequa was to use to purchase the property.

¶ 4. On November 11, 2002, DOT submitted a letter report to then Governor McCallum pursuant to Wis. Stat. § 84.09(5) and (5m) asking his approval to sell the property to Hartland in accordance with the terms of that offer. The report had a signature line for the governor to sign in approval. On November 14, Governor McCallum's facsimile signature was put on the report and the signed report was transmitted to DOT. That same day DOT notified Hartland that the governor had approved the sale and subsequently faxed a copy of the signed report to Hartland. The parties dispute whether the governor had actually approved the sale on November 14. It is not disputed, however, that on November 18 the governor's counsel wrote to DOT stating that the governor was "rescinding his approval of the Village of Hartland . .. sale to review the documents."

¶ 5. When no closing had taken place by December 9, 2002, Hartland filed a petition for a writ of mandamus ordering transfer of the property. The governor's counsel was informed of this petition and also was informed of DOT's position that a valid and binding contract for sale to Hartland had been formed. The governor's chief of staff testified that the decision was made that the governor's office would not object in writing to the sale to Hartland. The petition was voluntarily dismissed based on DOT's position that it was obligated to proceed with the sale to Hartland. The sale to Hartland took place shortly thereafter, and Hartland then conveyed approximately sixty acres to the Association.

¶ 6. Chenequa's offer had been formally rejected by DOT on December 3, 2002, with DOT explaining that the additional $500 per acre of Chenequa's offer did not compensate for the cost of building the necessary connecting road, which the Hartland offer proposed to do without public funds. On January 7, 2003, a representative of the Conservancy appeared at the meeting of the board of trustees of Chenequa and asked the board to consider pursuing legal action on the sale to Hartland. The minutes show the board went into closed session to confer with legal counsel and, upon reconvening, voted to decline to authorize legal action against DOT.

¶ 7. The Conservancy initiated this suit on its own soon thereafter. The amended complaint alleged that the letter report submitted to the governor on November 11, 2002, was not a full and complete report as required by Wis. Stat. § 84.09(5) because it contained various omissions and inaccuracies, that the governor had either not actually approved or had rescinded his approval of the sale to Hartland, and that the sale violated various polices of DOT contained in its Real Estate Program Manual. The Conservancy sought a temporary injunction, a declaration that the conveyance was unlawful under § 84.09(5) and therefore void, and an order that the property be reconveyed to the state.

¶ 8. The circuit court issued a temporary injunction preventing the Association from beginning construction pending the resolution of this action. The court also denied the defendants' motion to dismiss based on their position that the Conservancy did not have standing to bring this action. The court concluded that it was reasonable to infer from the allegátions of the complaint that the Conservancy had a particularized and substantial interest, distinct from that held by the general public, in requiring DOT to adhere to its policies in the sale of this property.

¶ 9. The Conservancy and Hartland filed cross-motions for summary judgment, with the Association joining in Hartland's motion. The circuit court granted the Conservancy's motion and denied Hartland's motion. The court concluded that the conveyance to Hart-land was invalid on three independent grounds: (1) DOT's report submitted to the governor was not a "full and complete report" as required by Wis. Stat. § 84.09(3) because it did not disclose that the proposed sale was in conflict with DOT's land sale policies; (2) the governor's counsel put a facsimile of the governor's signature on the report in error and the governor did not actually approve the sale, and (3) even if the governor approved the sale, he retained the authority to rescind the sale, which he eventually did.

DISCUSSION

¶ 10. Hartland and the Association argue on appeal that the circuit court erred in concluding that the Conservancy had standing to bring this action because there was no direct injury to a legally protectible interest of the Conservancy. The Conservancy responds that it did suffer an injury by virtue of the expenditure of time and effort in negotiating the agreement with Chenequa and in helping Chenequa prepare the offer to purchase. Because of its contract with Chenequa, the Conservancy asserts, it "stands in the shoes" of Chenequa as a bidder for the property and therefore has a legally protectible interest in DOT following the requirements of Wis. Stat. § 84.09(5) and its manual on the sale of the property.

¶ .11. In order to maintain an action for declaratory judgment, there must be a justiciable controversy, which exists when these requirements are met:

(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982).

¶ 12. The third requirement is often expressed in terms of standing. City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983). Whether a party has standing presents a question of law, which we review de novo. Lake Country Racquet & Athletic Club, Inc. v. Vill. of Hartland, 2002 WI App 301, ¶ 13, 259 Wis. 2d 107, 655 N.W.2d 189.

¶ 13. The formulation for analyzing the issue of standing has varied somewhat in the case law, in part depending on the nature of the claim asserted. The parties each use a somewhat different formulation in their arguments. We therefore begin by discussing what standard we should apply.

¶ 14. In State ex rel. First National Bank v. M&I Peoples Bank, 95 Wis. 2d 303, 308-09, 290 N.W.2d 321 (1980), where injunctive and declaratory relief was sought on the ground that a statute was unconstitutional, the court followed the approach of federal law on standing and concluded the plaintiff must have suffered some actual or threatened injury from the allegedly illegal action and there must be a logical nexus between the status of the plaintiff and the claim sought to be adjudicated. The court there did not specifically discuss standing for a declaratory judgment. However, in Madison Gen. Hosp. Ass'n v. City of Madison, 71 Wis. 2d 259, 265, 237 N.W.2d 750 (1976), the court did analyze standing for declaratory judgment actions in particular and applied the "logical nexus" requirement to determine whether there was a legally protectible interest. The court there held the plaintiff hospital was the "direct object" of the tax exemption granted in the statute and therefore had standing, or a legally protectible interest, to determine the extent of the exemption. Id.

¶ 15. A somewhat different formulation has been used when determining whether a person has standing to appeal an administrative agency decision under Wis. Stat. ch. 227, again tracking federal law on challenges to agency actions: the challenged action must cause the plaintiff or petitioner injury in fact and the interest injured must be one protected by law, that is, arguably within the zone of interests to be protected or regulated by the statute or constitutional provision in question. Wisconsin's Envtl. Decade, Inc. v. PSC, 69 Wis. 2d 1, 10, 230 N.W.2d 243 (1975), citing Ass'n of Data Proc. Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152-53 (1970). This. court has applied this standard in a challenge to an administrative agency action that was not brought under ch. 227. State ex rel. Parker v. Fiedler, 180 Wis. 2d 438, 447-48, 509 N.W.2d 440 (Ct. App. 1993), redd on other grounds, 184 Wis. 668, 517 N.W.2d 449 (1994).

¶ 16. We view the "logical nexus" requirement and the "arguably within the zone of interests sought to be protected" requirement as essentially equivalent: both require that the actual or threatened injury be to an interest that is arguably protected by the statutory or constitutional law upon which the plaintiff bases the claim for relief. Because this suit challenges the actions of DOT taken pursuant to Wis. Stat. § 84.09(5), we will use the "zone of interests" terminology. Thus, in order to have standing in this action, the Conservancy must have suffered or be threatened with an injury to an interest that is legally protectible, meaning that the interest is arguably within the zone of interests that § 84.09(5) seeks to protect.

¶ 17. The injury asserted must be such that it gives the plaintiff a personal stake in the outcome of the controversy. First Nat'l Bank, 95 Wis. 2d at 308-09. The injury need not he pecuniary; it may, for example, he an injury to interests that are aesthetic, conservational, or recreational. See Wisconsin's Envtl. Decade, 69 Wis. 2d at 10. The injury need not be of great magnitude, First Nat'l Bank, 95 Wis. 2d at 309; and it need not have already occurred, but instead may be one that will allegedly result from a sequence of events set in motion by the agency's conduct. Wisconsin's Envtl. Decade, 69 Wis. 2d at 14.

¶ 18. When a challenge is made to standing as alleged in a complaint, we take the allegations in the complaint as true and liberally construe them in the plaintiffs favor. See Thompson v. Kenosha County, 64 Wis. 2d 673, 679, 221 N.W.2d 845 (1974). The amended complaint here alleges that the Conservancy is a nonprofit conservation organization; it entered into the contract with Chenequa, attached as an exhibit, for the purpose of ensuring that the property, which includes substantial wetlands and high-quality agriculture, is retained as undeveloped open space in accordance with Chenequa's open space plan; it deposited $100,000 in the escrow account pursuant to the agreement; and "as the third party beneficiary of Chenequa's competing offer to purchase the State Property, the Conservancy has a cognizable interest in WisDOT's compliance with statutes and established written policies governing the openness and integrity of the agency's sales of surplus land." In spite of the lack of express allegations on the Conservancy's and Chenequa's future intentions, we conclude that a liberal construction in the Conservancy's favor permits the inference that, if the property is reconveyed to the state and again put up for sale, Chenequa will make another offer to purchase based on the same arrangement with the Conservancy. We agree with the Conservancy that, because of its contract with Chenequa, it need not have made the offer itself to have an interest that was injured by DOT's sale of the property to Hartland.

¶ 19. However, Hartland and the Association point to the minutes of the January 7, 2003 meeting as evidence that Chenequa does not intend to renew its offer to purchase if the sale to Hartland is voided. They argue, in effect, that the Conservancy does not have a stake in the outcome of this litigation unless Chenequa intends to renew its offer to purchase and its contract with the Conservancy if the Conservancy is successful in this litigation. We find it unnecessary to resolve this issue. We will assume without deciding that either the Conservancy does intend to make its own offer to purchase the property if it succeeds in voiding the sale and a public sale thereafter takes place, or Chenequa intends to renew its offer to purchase and renew its contract with the Conservancy. With this assumption, we proceed to address the second requirement — that the interest injured or threatened with injury is legally protectible.

¶ 20. The Conservancy argues that its interest in DOT following the requirements ofWis. Stat. § 84.09(5) and DOT'S manual is legally protectible because— standing in the shoes of Chenequa, which offered to purchase the property — it is the beneficiary of the statute and DOT'S manual provisions. The Association and Hartland contend that the Conservancy has no legally protectible interest because nothing in the statute or DOT manual indicates an intent to benefit an entity in the Conservancy's position.

¶ 21. Wisconsin Stat. § 84.09(5) authorizes DOT to sell at private or public sale any property owned by the state, subject to certain exceptions not applicable here, if: (1) DOT "determines that the property is no longer necessary for the state's use for highway purposes" or is not the subject of a petition by the department of administration under Wis. Stat. § 16.375(2), and (2) the governor approves. Other than the determination under the first point, there are no substantive criteria for determining what property to sell. There are also no substantive criteria for determining whether to sell at a public or private sale or for determining to whom to make the sale. The only procedures established in the statute for the sale (beyond the requirement that the funds be deposited in the transportation fund and be used to pay the expenses incurred by DOT in connection with the sale) relate to the process between DOT and the governor: DOT must "present to the governor a full and complete report of the property to be sold, the reason for the sale, and the minimum price for which the same should be sold together with an application for the governor's approval of the sale," and the governor "shall thereupon make such investigation as he or she may deem necessary and approve or disapprove the application." Section 84.09(5).

¶ 22. There is nothing in Wis. Stat. § 84.09(5) that indicates this section was intended to establish procedures to protect persons or entities interested in purchasing state property. The "full and complete report" is plainly for the governor's benefit, not the benefit of potential purchasers. If the report is inadequate, the governor may ask for additional information or make his or her own investigation; but we see no indication that the intent is to protect potential purchasers from the governor having inadequate information on which to base a decision to approve or disapprove. Similarly, the requirement of the governor's approval is a limitation on the authority of DOT for the benefit of the governor, not the benefit of potential purchasers. If the governor's signature showing approval is affixed to a recommendation in error, as the amended complaint alleges, the governor may have some recourse, but we see no indication of an intent to protect potential alternative purchasers from such a mistake.

¶ 23. The Conservancy argues that Wis. Stat. § 84.09(5) is intended to protect a duty of DOT to the public. Relying on Aqua-Tech, Inc. v. Como Lake Protection & Rehabilitation District, 71 Wis. 2d 541, 239 N.W.2d 25 (1976), the Conservancy asserts that, because it stands in Chenequa's shoes, it has a legally protectible interest in DOT fulfilling its duty to the public.

¶ 24. The statute at issue in Aqua-Tech, Wis. Stat. § 33.22(1), authorizes public inland lake protection and rehabilitation districts to enter into contracts, and requires that contracts for services or materials over a certain amount "shall be let by the commissioners to the lowest responsible bidder in such manner as they prescribe." Aqua-Tech sued a district alleging that it was the low bidder and seeking a permanent injunction ordering the district to award it the bid. Id. at 544-45. The court stated that statutory bidding requirements such as this were intended to benefit the public by, among other purposes, making sure the public received the best work or supplies at the most reasonable price. Id. at 550. Therefore, a taxpayer had standing to challenge the grant of a contract to one other than the low responsible bidder. Id. at 553. There was no allegation that Aqua-Tech was a taxpayer, id., and, the court stated, an individual bidder "has no fixed, absolute right to the contract." Id. at 552. However, the court referred to "the general rule... that a private citizen or individual may sue in his own name and for his own benefit to challenge the violation of a public duty when it appears he has suffered an injury peculiar to himself which is not sustained by the public in general." Id. at 553. The court observed that the complaint alleged a violation of the public duty under § 33.22(1) to let the contract to the lowest bidder, that "Aqua-Tech, as acknowledged low bidder, will suffer the loss of a business opportunity if the contract is awarded to another party," and that "a bidder on a public contract is in a particularly good position to challenge the bidding authority's action and thereby protect the rights of the public." Id.

¶ 25. Unlike Wis. Stat. § 33.22(1), Wis. Stat. § 84.09(5) contains no requirement that the sale be to the party offering the best price, and, in fact, does not even refer to a bidding process. As we have stated above, there are no procedures imposed on DOT other than submitting the prescribed report to the governor and obtaining the governor's approval, and there are no substantive requirements governing the sale imposed on either DOT or the governor, other than DOT'S obligation to determine that the property is no longer necessary for highway purposes and not subject to a petition under Wis. Stat. § 16.375(2). Section 84.09(5) is therefore not analogous to the statute at issue in Aqua-Tech. There is nothing in § 84.09(5) that suggests it is intended to ensure the public gets the highest price for the property, or that the sales be carried out in particular ways to benefit the public.

¶ 26. We conclude that neither the Conservancy's interest as a potential purchaser of property for sale under Wis. Stat. § 84.09(5) nor the general public's interest in such sales are arguably within the zone of interests the statute is intended to protect.

¶ 27. The Conservancy also asserts that it is the beneficiary of DOT policies in the Real Estate Program Manual and, therefore, it has a legally protectible interest in DOT following those policies. The specific provisions on which the Conservancy relies state, in summary, that the primary method for selling surplus land is through a public bid process, which is spelled out, and private sales are to be "rare exceptions," as are sales to municipalities for other than public uses; both are to conform to "strict criteria," which are spelled out. Bureau of Highway Real Estate, Dep't of Transp., Real Estate Program Manual §§ 6.4.1.6, 6.4.4^6.4.5 (2000). The Association contends that the manual is intended to serve as a resource tool for the DOT real estate staff, not to provide a benefit for or protect the interests of either persons in the Conservancy's position or citizens in general, except to the extent its provisions are already requirements under state or federal law or administrative rules. The Association relies on the "Welcome" and the "Disclaimer" at the beginning of the manual, which make these statements.

¶ 28. We are not persuaded by the Conservancy's argument that it has a legally protectible interest based on the manual. First, the Conservancy does not provide any authority for its premise that the manual provisions may be the source of legal protection of the interest it asserts in the same way that a statute or constitutional provision may be. Second, because we have already decided that neither the Conservancy's interest as a potential purchaser nor the interest of the general public are within the zone of interests Wis. Stat. § 84.09(5) is intended to protect, we do not see how a manual prepared by DOT for use in sales under that statute can alter that result.

¶ 29. Third, the manual has not been formally adopted as a rule under Wis. Stat. ch. 227, and the Conservancy refers us to no statute that either authorizes or requires DOT to promulgate rules to implement Wis. Stat. § 84.09(5). The Conservancy may be of the view that the manual is a "rule" within the meaning of Wis. Stat. § 227.01(13) even though it has not been formally promulgated as one. However, "materials developed by an agency as a reference aid for its staff that are 'couched... in terms of advice and guidelines rather than setting forth law-like pronouncements' are not a 'rule' within the meaning of... § 227.01(13) because they are not intended to have the effect of law." County of Dane v. Winsand, 2004 WI App 86, ¶ 11, 271 Wis. 2d 786, 679 N.W.2d 885 (citation omitted). We conclude that the manual is intended to provide advice and guidelines to the DOT staff and is not intended to have the effect of law.

¶ 30. In summary, we conclude the Conservancy does not have a legally protectible interest in the requirement in Wis. Stat. § 84.09(5) that DOT provide a complete report to the governor or in the requirement of the governor's approval; nor does the Conservancy have a legally protectible interest in DOT'S compliance with its manual. Accordingly, even if we assume the Conservancy would make an offer to purchase either on its own or in conjunction with Chenequa if the sale to Hartland were voided, it does not have standing to challenge that sale on the grounds alleged in the amended complaint. We therefore reverse the judgment of the circuit court and remand with directions to enter an order dismissing the amended complaint.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 84.09(5) and (5m) provide:
      (5) Subject to the approval of the governor, the department may sell at public or private sale property of whatever nature owned by the state and under the jurisdiction of the department when the department determines that the property is no longer necessary for the state's use for highway purposes and, if real property, the real property is not the subject of a petition under s. 16.375(2). The department shall present to the governor a full and complete report of the property to be sold, the reason for the sale, and the minimum price for which the same should be sold, together with an application for the governor's approval of the sale. The governor shall thereupon make such investigation as he or she may deem necessary and approve or disapprove the application. Upon such approval and receipt of the full purchase price, the department shall by appropriate deed or other instrument transfer the property to the purchaser. The approval of the governor is not required for public or private sale of property having a fair market value at the time of sale of not more than $3,000, for the transfer of surplus state real property to the department of administration under s. 16.375 or for the transfer of surplus state personal property to the department of tourism under sub. (5s). The funds derived from sales under this subsection shall be deposited in the transportation fund, and the expense incurred by the department in connection with the sale shall be paid from such fund.
      (5m) Subject to the approval of the governor in the manner and form provided by sub. (5), the department may convey lands or interests therein acquired pursuant to this section and improvements installed thereon to municipalities within whose limits such lands or interests therein are located. The conveyance of said lands or interests therein and improvements shall restrict the use of the premises by the municipality to the uses for which they were acquired, except that said lands or interests therein declared by the department to be excess may be so conveyed without restrictions as to use.
      At the time of the events of the case, Wis. Stat. § 16.375 contained provisions for transfer of surplus property to the department of administration. This section has since been renumbered Wis. Stat. § 560.9810, and this change is reflected in the current version of Wis. Stat. § 84.09(5). 2003 Wis. Act 33, §§ 161, 1684. However, for the sake of clarity, we cite to the 2001-02 version of the statutes.

       The complaint also referenced Wis. Stat. § 84.09(5m). In the circuit court, the Conservancy argued that the sale violated that subsection because the property was not located within the village limits of Hartland, but was located in the Town of Merton, within the extra-territorial jurisdiction of Hartland. Section 84.09(5m) was not a basis for the circuit court's grant of summary judgment, and the parties do not mention it in their dispute over standing. Accordingly, we do not address this subsection.

       Frank Busalacchi in his capacity of secretary of DOT is also a defendant and joined Hartjand in its motion for summary judgment and also joined in opposing the Conservancy's motion for summary judgment. However, he has not appealed.

       They also argue that the circuit court made errors of law in granting summary judgment against them and, in the alternative, that there are disputed issues of fact requiring a trial. It is unnecessary to address these arguments because the issue of standing is dispositive.

       The Conservancy also asserts that it "had a substantial interest in acquiring and preserving the State property" but it does not argue that it has a legally protectible interest in acquiring and preserving the property; it argues only that it has a legally protectible interest in DOT following the requirements of the statute and the manual. The Conservancy emphasizes that it is not seeking a declaratory judgment that it is the rightful owner of the property. We therefore understand the Conservancy's reference to its "substantial interest in acquiring and preserving the property" to be an explanation of its motive for contracting with Chenequa and not a separate legally protectible interest that requires analysis.

       The court in State ex rel. First National Bank v. M&I Peoples Bank, 95 Wis. 2d 303, 308-09, 290 N.W.2d 321 (1980), primarily used the analysis of Flast v. Cohen, 392 U.S. 83, 102 (1968), and Warth v. Seldin, 422 U.S. 490, 499 (1975). The court recognized that the requirement of an actual or threatened injury for standing under federal law derived from the Article III "cases and controversies" limitation on federal court jurisdiction, U.S. Const. art. III, § 2, cl. 1, which did not apply to Wisconsin courts. First Nat'l Bank, 95 Wis. 2d at 308 n.5. However, the court viewed the doctrine of standing to be a matter of sound judicial policy. Id.

       Although cases of this court addressing standing in declaratory judgment actions have not used this precise formulation, our analyses have been consistent with it. Generally, in prior cases we have either concluded there was no injury, and thus there was no need to analyze whether there was a "legally protectible" interest that was injured or threatened with injury, see, e.g., Lake Country Racquet & Athletic Club, Inc. v. Vill. of Hartland, 2002 WI App 301, ¶ 23, 259 Wis. 2d 107, 655 N.W.2d 189, or, without specifically discussing the meaning of "legally protectible," we have analyzed the relevant constitutional provision or statute. See, e.g., Vill. of Slinger v. City of Hartford, 2002 WI App 187, ¶¶ 13-17, 256 Wis. 2d 859, 650 N.W.2d 81 (annexation statute indicated legislative intent not to permit persons owning property outside annexed territory to challenge annexation); Town of Eagle v. Christensen, 191 Wis. 2d 301, 312-17, 529 N.W.2d 245 (Ct. App. 1995) (discussing the alleged inequities in taxation resulting from the challenged conduct in light of the protection afforded by the uniformity clause); Weber v. Town of Lincoln, 159 Wis. 2d 144, 149, 463 N.W.2d 869 (Ct. App. 1990) (referring to statute authorizing affected owners of real estate within a town to enforce a zoning ordinance).

       Hartland and the Association argue that the Conservancy is not a third-party beneficiary because there was no contract between DOT and Chenequa. However, it is clear from the Conservancy's briefs in the circuit court and before this court that by using the phrase "third party beneficiary of Chenequa's competing offer to purchase," the Conservancy is not invoking the third-party beneficiary doctrine, which allows a third party to sue for breach of contract between two other parties when certain conditions are met. See Goossen v. Estate of Standaert, 189 Wis. 2d 237, 249, 525 N.W.2d 314 (Ct. App. 1994). Rather, the Conservancy simply means to convey that its contract with Chenequa gave it an interest in how DOT responded to Chenequa's offer.

       The Conservancy does not respond to the argument concerning the minutes; in fact, it does not mention the minutes in its brief. In its decision on standing, the circuit court noted in a footnote that whether Chenequa still wanted to be involved was irrelevant, because, if the Conservancy prevailed on its argument that DOT had violated its manual in having a private sale and if a public sale occurred in the future, the sale would not need to be to a municipality. Apparently the circuit court concluded that the amended complaint, liberally construed, indicated that the Conservancy would make its own offer to purchase in that situation. However, the Conservancy does not make this argument on appeal.

       The Real Estate Program Manual provides in part:
      Welcome to the Bureau of Highway Real Estate Program Manual. This Manual serves as a resource tool for Wisconsin Department of Transportation Real Estate Staff, providing statewide policy and guidelines. We have also made the Manual accessible as a convenience to our our [sic] business partners. More information can he found in the disclaimer below. Questions and comments should be directed to Eric Boucher at the Bureau of Highway Real Estate, Wisconsin Department of Transportation.
      Disclaimer: This manual is provided as a public service by the Bureau of Highway Real Estate (BHRE) Wisconsin Department of Transportation (WisDOT). The contents of the Highway Real Estate Manual reflect the policies, guidelines, and practices of the WisDOT Real Estate Program. It is impractical, if not impossible, to compile a manual of this type which addresses or anticipates all possible situations. The information contained within this manual is offered for use in understanding the policies of the WisDOT Real Estate Program and is not meant to be the basis for creating absolute requirements or law except where state or federal law or administrative rules with the force of law apply. The Bureau of Highway Real Estate Management, on behalf of WisDOT, has the ability to exercise discretionary judgment in the use or application of this manual.
      The policies in the Manual are updated frequently but not instantly. The manual may reflect policies recently changed, and thus no longer accurate. BHRE is not responsible to provide notice to users as to when any modifications are made.
      The existence, distribution, application, and use of this manual do not constitute an acknowledgment or guarantee of outcome, expressed or implied, by WisDOT.
      Btobeau of Highway Real Estate, Dep't of TRAnsp., Real Estate PROGRAM Manual (2000).

       Wisconsin Stat. § 227.01(13) provides:
      (13) "Rule" means a regulation, standard, statement of policy or general order of general application which has the effect of law and which is issued by an agency to implement, interpret or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. "Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, which:.... [Exceptions (a) thru (zu).]


author: HOOVER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John R. Maloney, Defendant-Appellant.

    Court of Appeals

      No. 03-2180.

      Submitted on briefs June 2, 2004.

    Decided June 29, 2004.

    2004 WI App 141
    (Also reported in 685 N.W.2d 620.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Lew A. Wasserman, of Kies & Wasserman of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Daniel J. O'Brien, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 10-19-04.

   HOOVER, PJ.

¶ 1. John Maloney appeals an order denying his motion for postconviction relief. The trial court rejected Maloney's allegations that trial counsel provided ineffective assistance. Maloney contends that the trial court erred in its determinations; we disagree and affirm the order.

Background

¶ 2. In February 1998, Sandy Maloney's corpse was discovered in her fire-damaged home. Investigators concluded that her death was a homicide and her estranged husband, Maloney, became a suspect. In May, after Maloney's then girlfriend, Tracy Hellenbrand, encouraged him to hire an attorney, Maloney retained attorney Gerald Boyle, who immediately notified the State of his engagement.

¶ 3. During the course of the investigation, Hel-lenbrand apparently approached investigators and offered to wear a concealed recording device in an attempt to prove Maloney's innocence. Conversations the two shared in Las Vegas were videotaped, under supervision of Wisconsin authorities, with Hellenbrand's consent and cooperation. The conversations, however, contained inculpatory statements from Maloney.

¶ 4. In July 1998, Maloney was charged with Sandy's murder, arson, and mutilating a corpse. One of Maloney's pretrial motions sought suppression of the videotaped conversations. He complained the statements had been involuntary, that the government had engaged in outrageous conduct in obtaining the statements, and that his right to counsel had been violated. The trial court denied the motion. The jury ultimately convicted Maloney on the three counts listed above. Maloney appealed, represented by the same counsel he had at trial, and we affirmed his conviction. See State v. Maloney, No. 99-3069-CR, unpublished slip op. (Wis. Ct. App. Sept. 6, 2000).

¶ 5. Maloney obtained new counsel and filed a motion for relief under Wis. Stat. § 974.06 alleging ineffective assistance of trial counsel. He claimed that trial counsel was ineffective because: (1) counsel should have challenged the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2 by special prosecutor Joseph Paulus; (2) counsel should have challenged the admissibility of the videotape evidence under Wis. Stat. § 968.31(2)(c) as "injurious;" and (3) at trial, counsel impermissibly invited the State's investigator, Kim Skorlinski, to comment on Maloney's credibility.

¶ 6. The trial court denied the motion for relief. It decided: (1) Paulus had not violated SCR 20:4.2 and even if he had, suppression was not available as a remedy; (2) that because Hellenbrand had consented to the videotaping of the conversations to which she was a party, the tapes were legally obtained under Wis. Stat. §§ 968.31(2)(b) or (c); and (3) that counsel's cross-examination of Skorlinski constituted reasonable trial strategy. Maloney appeals.

Discussion

¶ 7. Maloney's appeal involves the question of whether trial counsel was ineffective. To support a claim of ineffective assistance of counsel, Maloney must show both that counsel's performance was deficient and that this deficiency was prejudicial. See State v. Reed, 2002 WI App 209, ¶ 14, 256 Wis. 2d 1019, 650 N.W.2d 885. We need not address both components if the defendant fails to make a sufficient showing on one of them. Id.

¶ 8. Whether counsel was ineffective presents a mixed question of fact and law. Id., ¶ 16. The trial court's determination of what counsel did or did not do, along with counsel's basis for the challenged conduct, are factual matters we will not disturb unless clearly erroneous. Id. The ultimate conclusion whether counsel's conduct constitutes ineffective assistance is a question of law. Id.

Supreme Court Rule 20:4.2

¶ 9. Supreme Court Rule 20:4.2 is an ethical rule governing the behavior of members of the Wisconsin Bar. It states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (Emphasis added.)

¶ 10. Maloney argues Paulus violated this rule when he directed Hellenbrand's participation in obtaining the Las Vegas tapes. He asserts that had trial counsel alleged this violation in the suppression motion, the tapes would have in fact been suppressed. Thus, Maloney contends counsel was ineffective by failing to make this argument. The State responds that Paulus was not in charge of the recordings but was merely kept informed of the investigation's progress and that, in any event, "Maloney was not yet a 'party' to any pending 'matter'" since he had not been charged.

¶ 11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation. We therefore need not decide whether Paulus violated SCR 20:4.2. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issues need be addressed).

¶ 12. "Suppression of evidence is 'only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy.'" State v. Keith, 2003 WI App 47, ¶ 8, 260 Wis. 2d 592, 659 N.W.2d 403 (citation omitted). Indeed, the preamble to SCR ch. 20 of our Rules of Professional Conduct states in part:

Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process....
Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules ... are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis ... for sanctioning a lawyer ... does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.

The rule provides neither a constitutional nor a statutory basis for Maloney to seek suppression of the tapes as a "procedural weapon." Because suppression is not available for an ethical violation, counsel is not ineffective for failing to raise the argument. See Reed, 256 Wis. 2d 1019, ¶ 17.

Wisconsin Electronic Surveillance Control Law (WESCL)

¶ 13. Maloney argues that trial counsel was ineffective for failing to challenge the videotape's admissibility under the WESCL. His claim concerns two sections of WESCL, Wis. Stat. §§ 968.31(2)(b) and (c). Under these provisions, it is not unlawful:

(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
(c) For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

¶ 14. In pretrial motions, Maloney's counsel initially argued Hellenbrand had been acting under color of law — a necessary element to the alleged Miranda violation that Maloney also raised. Moreover, at the postconviction Machner hearing, counsel testified that it would have been pointless to raise a challenge under Wis. Stat. § 968.31(2)(b) because Hellenbrand was a party to the communication and had consented to the videotaping.

¶ 15. In rejecting Maloney's Miranda argument, the trial court ruled Hellenbrand had not been acting under color of law. Maloney therefore complains that counsel should have argued in the alternative that if the court found Hellenbrand was not acting under color of law, the tapes were obtained contrary to Wis. Stat. § 968.31(2)(c). In rejecting postconviction relief, the trial court concluded that § 968.31(2)(c) had not been violated because Hellenbrand consented to the taping. Consent is irrelevant, however, if the communication is intercepted to commit an "injurious act." "Clearly," Ma-loney argues, "Hellenbrand was not taping [him] out of a legitimate desire to protect herself. . . Hellenbrand's purpose was to injure [him] ...." We disagree.

¶ 16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis. 2d 526, 543, 348 N.W.2d 159 (1984). However, the only basis Maloney offers for Hellenbrand's motive is speculation. Additionally, we know of no law, and Maloney cites none, that suggests an individual, who volunteers to aid the authorities in a lawful albeit surreptitious investigation, commits an injury against the investigated party simply by participation. Indeed, such a rule would severely hamper investigatory options available to officials.

¶ 17. While Maloney makes much of Hellenbrand's apparent use immunity, this would simply go to the credibility of any evidence she offered, not its admissibility. Because Maloney offers no real evidence to support his claim that Hellenbrand attempted to injure him, we reject that contention as a matter of law. Because there is no evidence that Hellenbrand intercepted communications with the intent to commit an injurious act, and because Hellenbrand consented to the taping, whether we rely on Wis. Stat. § 968.31(2)(b) or (c), the tapes were lawfully obtained. As a result, counsel was not ineffective by failing to challenge them.

Inappropriate Cross-Examination of Skorlinski

¶ 18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). We disagree.

¶ 19. Essentially, no witness may testify that another competent witness is telling the truth. Id. at 96. Whether a witness has improperly testified as to the credibility of another witness is a question of law that we review independently. State v. Huntington, 216 Wis. 2d 671, 697, 575 N.W.2d 268 (1998). However, this is a review of counsel's performance, so we must defer to the trial court's factual findings regarding counsel's actions. Reed, 256 Wis. 2d 1019, ¶ 16.

¶ 20. The line of questioning to which Maloney objects includes this exchange:

[Attoeney Boyle]: Now, we know there was no candle, so you know his [Maloney's] statement as relates to the candle is not true, correct?
[SkoRlinski]: Correct.
[Attorney Boyle]: So he was there lying there about being there between 3 and 6 a.m.?
[SKORLINSKI]: I do not believe he was there.
[AttoRney Boyle]: ... How about fell and hit her head? Is that true?
[SkoRlinski]: No, I don't believe that was true.
[AttoRney Boyle]: Okay. Parked two blocks away. Got any evidence of that?
[Skoelinski]: I believe that was true.
[AttoRney Boyle]: Okay. And he says — when he says, "I wasn't there when the fire started," you believe that's a lie?
[SkoRlinski]: Yes.

¶ 21. At the Machner hearing, Boyle explained that his strategy was to criticize Skorlinski's investigative techniques on this particular case — to suggest that Skorlinski seized upon Maloney so quickly and was concentrating on him as the perpetrator so intently that he failed to consider other possible suspects in the case. He felt his line of questioning, in which Skorlinski clearly demonstrates he believed Maloney was a liar, would reveal this fixation. At the same time, Boyle explained, he did not wish to alienate the jury with personal attacks directly on Skorlinski.

¶ 22. The trial court ruled:

Attorney Boyle was attempting to portray the investigative team as overly zealous and closed minded... . [T]hey focused on his client as the prime suspect and did not adequately consider other suspects. It is a common and widely accepted defense tactic to criticize the investigation, while not risking alienation of the jury by making the attack personal.
. . . [Maloney's] theory of defense was that someone else committed the murder, and that law enforcement unreasonably focused on the defendant as the sole suspect. Part and parcel of that defense would be an attempt to establish that the lead investigator [Skor-linski] was closed-minded by showing that he unreasonably refused to believe the defendant's version of events in spite of evidence supporting that version.

The court noted that the "supposed deficiencies" were taken out of context from a lengthy cross-examination within a lengthy trial. Additionally, it concluded Boyle was well within "the wide range of professionally competent assistance" required of attorneys. See Strickland v. Washington, 466 U.S. 668, 690 (1984).

¶ 23. We cannot improve on the trial court's ruling. It is significant that the trial court had the opportunity to both see and hear counsel's presentation and evaluate its purpose in conjunction with counsel's testimony. See State v. Curtis, 218 Wis. 2d 550, 554, 582 N.W.2d 409 (Ct. App. 1998). Ultimately, the court determined counsel had a reasonable trial strategy — which is virtually unassailable in an ineffective assistance of counsel analysis. See State v. Nielsen, 2001 WI App 192, ¶ 44, 247 Wis. 2d 466, 634 N.W.2d 325. We see no reason why the Haseltine rule cannot be strategically waived by the party that would normally seek its protections. Trial counsel is not ineffective simply because an otherwise reasonable trial strategy was unsuccessful.

¶ 24. Maloney has failed to show that counsel's performance was deficient. The trial court therefore properly denied his motion for postconviction relief.

By the Court. — Order affirmed.

       Attorney Bridget Boyle-Saxton also participated in Maloney's defense, although it is not necessary for us to discuss the attorneys' activities separately.

       All references to the Wisconsin Statutes and the Supreme Court Rules are to the 1997-98 version unless otherwise noted.

       This is sometimes referred to as the Michigan rule, based on Michigan v. Green, 274 N.W.2d 448, 454 (Mich. 1979):
      The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar.... [T]he remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney.. . .
      The admissibility of evidence ... on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions.

        See also, e.g., Suarez v. Florida, 481 So.2d 1201, 1207 (Fla. 1985); Iowa v. Johnson, 318 N.W.2d 417, 437 (Iowa 1982); Kansas v. Morgan, 646 P.2d 1064, 1070 (Kan. 1982); Maine v. McCarthy, 819 A.2d 335, 341 (Me. 2003); New Hampshire v. Decker, 641 A.2d 226, 230 (N.H. 1994); In Re Howes, 940 P.2d 159, 167 (N.M. 1997).

       The State had also argued that the rule was inapplicable because Maloney had not been charged — that is, he was not a "party to the proceedings." Maloney points us to United States v. Hammad, 858 F.2d 834, 838 (2nd Cir. 1988), which found "no principled basis in the [no-contact] rule to constrain its reach as the government proposes," and he implies that Hammad mandates suppression for an ethical violation. In the first place, we note that Hammad is a federal case applying federal law. As such, the federal exclusionary rule in that case is inapplicable given the controlling Wisconsin precedent we must apply. Moreover, the Hammad court committed the extreme remedy of suppression to a district court's discretion; it did not establish a bright-line rule. Id. at 840.

        See Miranda v. Arizona, 384 U.S. 436 (1966).

        See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       The State, for its part, responds that the investigators were the ones who intercepted the communication, under color of law, with Hellenbrand's consent, making the tapes lawful under Wis. Stat. § 968.31(2) (b).

       Additionally, if Hellenbrand did in fact offer to record conversations to prove Maloney's innocence, the evidence would suggest she was trying to exonerate — not injure — Maloney.

       Maloney does not allege a "criminal or tortious act in violation of the constitution or laws of the United States or of any state." See Wis. Stat. § 968.31(2)(c).

       As an aside, we note that WESCL mirrors federal law. See 18 USC §§ 2510 et seq. In 1986, Congress removed the "injurious act" language from the United States Code. See Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1850. Therefore, Maloney's reliance on federal law is misplaced, since federal law no longer acknowledges the concept of "injurious act" vis-a-vis recorded surveillance.