author: CANE, C.J.

text:
    In re the Commitment of August T. Krueger: State of Wisconsin, Petitioner-Respondent, v. August T. Krueger, Respondent-Appellant.
    Court of Appeals

      No. 00-0152.

      Submitted on briefs January 23, 2001.

    Decided March 20, 2001.

    2001 WI App 76
    (Also reported in 626 N.W.2d 83.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. August Krueger appeals from orders dismissing his petitions for discharge from his WlS. Stat. ch. 980 commitment. After Krueger petitioned for discharge in 1997, the trial court found that Krueger had established probable cause for discharge and scheduled a jury trial. Before trial, Krueger and the State stipulated that instead of proceeding with a trial on outright discharge, Krueger would agree to supervised release as provided in WlS. Stat. § 980.08. The trial court accepted the stipulation and ordered the State of Wisconsin Department of Health and Family Services to prepare a release plan.

¶ 2. The trial court approved the department's release plan. Ultimately, difficulties finding a residence for Krueger derailed the planned release. The trial court granted the State's motion to rescind the stipulation and rescheduled the jury trial on Krueger's discharge petition. The State then moved the court to reconsider its earlier finding that there was probable cause to have a jury trial on the discharge. The trial court reversed its earlier decision and cancelled the jury trial. In 2000, Krueger filed a new petition for discharge that the trial court also dismissed. Krueger now appeals the dismissal of both discharge petitions.

¶ 3. Krueger seeks reinstatement of the order for his supervised release, arguing that the trial court erred when it rescinded its order on grounds that the department could not locate a residence for Krueger. In the alternative, Krueger seeks a reversal of the order dismissing his 1997 discharge petition so that he can proceed with a jury trial. Krueger's second argument is based on the theory that the State is estopped from moving to dismiss the discharge petition because it urged the court the vacate the stipulation providing for supervised release and proceed with the jury trial on Krueger's discharge petition. Finally, Krueger argues that the trial court erred when it found there was no probable cause for a hearing based on Krueger's new petition for discharge.

¶ 4. We conclude that the trial court erroneously exercised its discretion when it granted the State's motion to vacate the order for supervised release. Accordingly, we reverse and remand with instructions that the trial court reinstate the supervised release order and amend the release plan as needed to effectuate supervised release. With respect to the petition for discharge filed in 2000, we reverse the trial court order because the State on appeal has failed to address Krue-ger's challenges to the trial court's decision.

Facts

¶ 5. Although the procedural facts are somewhat lengthy, we recite them in some detail in order to fully explain the basis for Krueger's appeal and our decision. In 1996, Krueger was found to be a sexually violent person as defined in Wis. Stat. ch. 980 (1995-96), and was committed to the custody of the Department of Health and Family Services for control, care and treatment. See Wis. Stat. § 980.06(1) (1995-96). The order for commitment specified that Krueger was to receive institutional care, as opposed to supervised release. See Wis. Stat. § 980.06(2)(b) (1995-96). Krueger was placed at the Wisconsin Resource Center, a secure mental health facility.

¶ 6. On May 30,1997, Krueger filed a petition for supervised release pursuant to Wis. Stat. § 980.08. The trial court appointed Dr. Michael Galli to examine Krueger and file a written report with the court. See WlS. Stat. § 980.08(3). Galli met with Krueger on June 19 and July 10 and ultimately issued a written report concluding that Krueger is not a sexually violent person.

¶ 7. On July 18, Krueger filed a petition for discharge pursuant to Wis. Stat. § 980.09(2), citing Galli's report as support for his petition. In August, Krueger also submitted a report by Dr. Diane Lytton, who concluded that "there is not a substantial probability that Mr. Krueger will engage in act[s] of sexual violence."

¶ 8. After several hearings, the trial court in November issued an order denying Krueger's WlS. STAT. § 980.08 petition for supervised release, concluding that the State had proved by clear and convincing evidence that Krueger is still a sexually violent person and that it is substantially probable that Krueger will engage in acts of sexual violence if not continued in institutional care. See WlS. STAT. § 980.08(4). The trial court denied Krueger's petition for discharge, concluding that no probable cause existed to believe that Krueger is no longer a sexually violent person.

¶ 9. Krueger moved the trial court to reconsider its determination that Krueger failed to establish probable cause to support his discharge petition. At a January 1998 hearing, the trial court and the parties discussed the court's November 1997 ruling on supervised release and discharge. The district attorney acknowledged that the purpose of the hearings in the fall of 1997 was to have the court rule "on the ultimate decision of the supervised release and the probable cause section of the petition for discharge."

¶ 10. The trial court acknowledged that its decision to deny Krueger's petition for supervised release was made only after weighing the evidence, including expert testimony supporting and opposing supervised release. When the court next considered whether there was probable cause to support Krueger's discharge petition, the court reasoned that if Krueger was not a candidate for supervised release, he certainly was not a candidate for discharge. Accordingly, he denied the discharge petition.

¶ 11. Krueger argued that instead of making the ultimate decision on discharge, the trial court should have simply decided whether there was probable cause for the discharge petition. If the trial court found probable cause for the discharge petition, the petition would proceed to a hearing. Pursuant to State v. Post, 197 Wis. 2d 279, 329-30, 541 N.W.2d 115 (1995), Krueger would have the option of requesting a jury for that hearing.

¶ 12. The trial court concluded that its earlier decision was erroneous because it had "jumped the gun" by deciding whether the discharge should be granted, rather than simply determining whether there was probable cause for another hearing. The court then found there was probable cause for a discharge hearing, concluding:

Facts do exist that warrant a hearing, and the facts that exist are Dr. Lytton's conclusion regarding Mr. Krueger. That is a fact that exists that warrants a hearing on whether he's still a sexually violent person, and this Court should not be making that determination ... if you [are] now requesting a jury trial on this issue, you can do that.

¶ 13. In response, Krueger indicated that he wanted a jury trial on the discharge petition. The parties scheduled a jury trial for April. Notably, the State did not move the court to reconsider its decision, and did not file an interlocutory appeal with this court pursuant to Wis. Stat. § 809.50.

¶ 14. The trial was postponed to August 12, apparently for scheduling reasons. One week before the scheduled trial, the parties informed the trial court that they had a proposed stipulation that would negate the need for a jury trial. Defense counsel told the court that the parties were prepared to stipulate that the discharge trial be cancelled and

[t]hat [Krueger] is an appropriate individual for supervised release pursuant to Section 980.08(5), Wis. Stats[.]; and that the Court may enter an order pursuant to that statute providing that the Wisconsin Department of Health and Family Services and that the Manitowoc Department under 51.42 prepare that plan that is called for by 980.08(5).
We would further stipulate that the county of the respondent's residence is Manitowoc. He has, in fact, lived there for many, many years. The only reason we are pending in Lincoln County is by virtue of some convictions that took place here some time ago.
I would propose that the plan that the Court would order would be submitted for the Court's approval within 60 days after the Court enters this order. ...
[T]he Court would then conduct a hearing regarding the plan and that both the State or [Krue-ger] would be free to urge any type of supervised release as he perceives fit. In other words, both parties would have a right to urge modification of the plan providing it still called for supervised release.

The district attorney agreed with this recitation. The trial court asked the district attorney to explain his reasons for the agreement. The district attorney explained that he was concerned that if Krueger was successful at the jury trial, he would be "outright released." The district attorney continued:

The State, being somewhat unwilling to take that risk, factors that in; also factors in the fact that he's been in custody at the Wisconsin Resource Center for what amounts to . . . about two-and-a-half years. When I first started getting involved in the 980 cases, I was told by people at the facility that treatment would take no more than two years. That assumes full cooperation.
It's my understanding that Mr. Krueger has completed a variety of the courses and can address the additional treatment needs out of house, so to speak, not inpatient stays being required.
So on that factual basis, Judge, we are asking that the Court approve of this stipulation reached by the parties. To me as a prosecutor it is the safest course, because if he was to be released outright tomorrow or next week, I think no one would benefit from those facts, including Mr. Krueger.

¶ 15. The trial court asked the district attorney additional questions about his conclusion that Krueger could complete the remainder of his treatment on an outpatient basis. The district attorney indicated that his opinion was based on the reports in the record, including the report filed by Galli, the court-appointed expert.

¶ 16. The trial court stated that before it would approve the stipulation, it wanted the district attorney to again contact the Wisconsin Resource Center to make sure that the center "doesn't say there was something unknown here that would gravely alter the district attorney's analysis." The trial court also directed the district attorney to contact Galli. "I want to be sure, since this is being done at the recommendation of the State . . . that there's nothing that would change [the State's] view on this."

¶ 17. On August 12, the parties appeared before the trial court to confirm the stipulation. The trial court summarized the stipulation:

Last week the parties informed me ... that they had reached a stipulation where this would be changed to a supervised release . . . rather than an outright discharge.
The State at that time had said that it felt that it didn't want to take the chance or risk of a jury decision that would discharge Mr. Krueger completely and felt that it was the better option to enter into this agreement. . . . Mr. Krueger felt that he didn't want to take the risk of the jury finding that he should not be discharged and was willing to enter into this compromise, also.

¶ 18. The district attorney added that his decision to settle the matter was also based in part on Galli's report. He said that he had again spoken with Galli and that Galli had stated that it was his opinion that Krueger is not a sexually violent person, but could nonetheless benefit from community supervision.

¶ 19. The trial court proceeded to question Krue-ger in a manner similar to that employed for accepting guilty pleas. The court asked Krueger:

Do you understand that what you are doing here is you are giving up your chance, your option of being found no longer appropriate for Chapter 980 treatment and therefore being discharged outright, and instead you are going to be going under the conditional discharge, which will require that you be placed and that there be a plan set up and that there be monitoring, that there be treatment of you and things of that nature.
Do you understand that?

In response, Krueger indicated that he understood.

¶ 20. The trial court asked Krueger whether he had been threatened in any way; Krueger responded no. Krueger also indicated that he had had sufficient time to discuss the stipulation with his attorney. Finally, the trial court asked Krueger's attorney whether he felt that Krueger was agreeing to the stipulation "freely, voluntarily, and intelligently." Krueger's attorney responded affirmatively, explaining:

[Krueger is] aware of the risks involved in trying the case.... He's had in excess of a week to think about [the stipulation], and he's been continuously in support of this disposition.
He is aware that while he would desire to reside in the City of Manitowoc that the placement may be any place in Manitowoc County. He's aware that while he would like to return to [his former job] it may not be possible; that he will be under significant regulation; and I believe that his decision to accept this is a rational, thoughtful, and appropriate weighing of the various factors.

¶ 21. After this colloquy, the trial court concluded:

Fine. All right. The Court notes that under Section 980.08(4) the Court is to grant a petition for supervised release unless the State would prove by clear and convincing evidence that the person is still a sexually violent person and it is still substantially probable that the person will engage in acts of sexual violence if the person is not confined in a secure mental health unit or facility, and in making that decision, the Court may consider various things, including where the person will live, how the person will support him or herself, what arrangements are available to be sure that a person has access to and will participate in necessary treatment, and I assume you will — that that will be provided by the plan when it is developed.
So the Court at this time, based upon what has been presented here and last week, does approve of the resolution of this matter. The department is to be now notified of this.

¶ 22. The trial court signed an order incorporating the parties' stipulation. Krueger was thereafter returned to the Wisconsin Resource Center, pending approval of the plan that the department was to develop over the next sixty days. See WlS. STAT. § 980.08(5).

¶ 23. On November 16, the parties appeared for a status conference at the trial court's request. The trial court said that it had received a letter from the department indicating that the department did not agree with the supervised release. The district attorney summarized his interpretation of the department's position: "Not only we don't agree with it. We're not going to do it. They went further to say, 'We can't do it.' There are no adequate facilities."

¶ 24. Despite the department's reluctance to develop a plan for Krueger's supervised release, the district attorney made no motion to set aside the stipulation and instead urged the trial court to order the department to proceed with the plan. He stated:

[Defense counsel] and I discussed the matter prior to this status conference .... We are in agreement, based on a Court of Appeals case[] that came down in the last quarter that stated where [the trial court orders supervised release] to an outpatient facility and the State comes back with a treatment plan that says, "We don't have the facilities available to do so, so we advocate in-patient treatment ..that the trial court ruling stands and the State must provide a plan for outpatient or if no facilities exist, create such facilities as will meet those demands.
I think [defense counsel] and I agree that should be the course of action.

The trial court agreed.

¶ 25. On December 23, the department produced a proposed supervised release plan for Krueger. The plan stated that Krueger had indicated that he wants to live with his stepfather in Manitowoc, and that his stepfather had agreed. The plan's drafter recommended placement in a more structured and supervised setting, but added that she had called several facilities and they were unwilling or unable to accept Krueger.

¶ 26. The trial court at a December 29 hearing noted that the department felt strongly that Krueger should not have been granted supervised release. "They made that clear several times in prior correspondence and also now in this report. But the stipulation is a matter of record as is the order that he be conditionally released upon that stipulation."

¶ 27. At the January 27, 1999, hearing to approve the plan, both parties said that they agreed with the plan. Krueger suggested one change to the wording, but the trial court declined to make the change. The parties then agreed that the plan would be implemented in eight weeks, thereby allowing time for notification of local law enforcement and others. The trial court approved the plan and ordered that it be implemented by March 24.

¶ 28. Approximately one month after the plan was approved, a worker from the Wisconsin Resource Center who was attempting to implement the plan contacted the trial court to report that he was experiencing difficulties with the residence and employment plans for Krueger. In a letter to the court, he wrote:

[T]he approved supervised release plan for Mr. August Krueger is now looking very doubtful. As the result of the local newspaper publishing the exact release address on the front page of the February 5, 1999 issue, [Krueger's stepfather] is now reluctant to have August reside with him. In addition to harassing phone calls, unknown people have stopped by [the stepfather's] residence to verbally express their dissatisfaction of August living at that location.

¶ 29. In the same letter, the worker also noted that Krueger's former employer indicated that it would not re-hire Krueger. "This decision was based on the reaction of the community and the article that ran in the newspaper," the worker stated.

¶ 30. The worker requested an extension of time to create an alternate plan. He also suggested that "it may be required to look for a residence outside of Mani-towoc County. Therefore, an order to investigate resources with the assistance of Human Services in Lincoln County would be required."

¶ 31. The trial court scheduled a status conference for March 3 to discuss this letter. Noting that Krueger remained at the Wisconsin Resource Center and that the release date had been postponed several times already, counsel for Krueger indicated that he planned to file motions to compel Krueger's release.

¶ 32. At the same status conference, the district attorney stated that the trial court may need to "revisit the issue of requesting legal enforcement of that stipulation because the facts that all the parties presumed were in existence are not in existence and that raises to my mind a contractual level whether the stipulation that was reached by the parties is even enforceable at this point. So we may need to have a jury trial" on the discharge petition. The district attorney also suggested that if placement with Krueger's stepfather is impossible, the parties should explore housing alternatives with other family members, including those residing in Lincoln County.

¶ 33. Krueger subsequently moved the trial court to find Joe Leean, Secretary for the department, in contempt for failing to have the department implement the court's order for supervised release. In the alternative, Krueger sought immediate release. The district attorney moved to vacate the order for supervised release on the ground that two expected release conditions, residence and employment, were no longer available.

¶ 34. At an April 5 hearing, numerous social workers and others testified about their efforts to find Krueger a residence. Krueger's stepfather also testified that he was willing to have Krueger live with him. The parties agreed that because residence was no longer a barrier to Krueger's release, the release would take place within two weeks.

¶ 35. However, the trial court also acknowledged that the release faced additional challenges: the stepfather had changed his mind in the past and the stepfather's landlord was threatening eviction. Finally, an assistant attorney general representing the department notified the court that as soon as Krueger was released, he planned to recommend that the department "move quickly to implement the rest of the statute that allows the [department] to move to revoke the supervised release plan."

¶ 36. The trial court, nonetheless, concluded that the plan should be implemented. Krueger withdrew his contempt motion, and the district attorney did not pursue his motion to vacate the stipulation.

¶ 37. Ten days later, Krueger's stepfather changed his mind. In a short note, the stepfather wrote that he would not allow Krueger to live with him because he wanted to maintain good relations with his neighbors and landlord. The district attorney renewed his motion to vacate the stipulation. Krueger filed a motion urging the court to amend the plan for supervised release to provide for an alternate residence in Manitowoc County.

¶ 38. At a May 25 motion hearing, the district attorney urged the trial court to vacate the stipulation and proceed with a jury trial on the discharge petition. He stated:

Here we have an individual who's given up the right to a jury trial, a constitutional right under the principles of fairness and due process. That's what I have been saying all along should be the remedy. Let’s go back to where the parties were before the agreement was struck and give the individual his right to his day in court and have the jury decide....

¶ 39. Despite Krueger's objection that the court should instead amend the plan to provide for release to another residence in Manitowoc County, or in any county in the state, the trial court granted the State's motion and ordered that the matter proceed to trial.

¶ 40. Krueger petitioned this court for leave to appeal the nonfinal order vacating the order for supervised release. We denied the request, and Krueger's case was once again scheduled for trial on the discharge petition.

¶ 41. In October 1999, the State filed a motion asking the trial court to reconsider its January 1998 ruling that there was probable cause to believe Krue-ger was no longer a sexually violent person. At a motion hearing, the trial court informed the parties that it had reexamined the transcripts from 1997 and 1998 and concluded that its original decision finding probable cause for a jury trial on the discharge petition was erroneous. The trial court concluded that Krueger was not entitled to a jury trial or further hearings on his discharge petition.

¶ 42. In January 2000, Krueger filed a new discharge petition. The trial court concluded that Krueger had not shown probable cause that he was no longer a sexually violent person and rejected his petition. Krue-ger now appeals.

¶ 43. Krueger, arguing that the trial court erroneously vacated its order for supervised release, asks this court to reinstate the supervised release order. In the alternative, he seeks a jury trial on his 1997 petition for discharge. We agree with Krueger's first argument and, therefore, do not address whether the court erred when it reversed its decision finding probable cause for a trial on the 1997 discharge petition. With respect to the 2000 petition for discharge, Krue-ger asks that this court reverse the trial court's conclusion finding no probable cause for a jury trial. Because the State has failed to respond to Krueger's argument regarding the 2000 petition for discharge, the trial court's order is reversed.

Discussion

I. Vacation of the order for supervised release

¶ 44. Our review of the trial court's discretionary decision in this case requires synthesis of two key Wis. Stat. ch. 980 cases: State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), appeal dismissed as improvidently granted, 213 Wis. 2d 488, 570 N.W.2d 44 (1997); and State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999). In Castillo, the State filed a ch. 980 petition to have Castillo committed as a sexually violent person. See Castillo, 205 Wis. 2d at 604. The court found probable cause to believe that Castillo was a sexually violent person. After two mental health experts and the State agreed that supervised release was appropriate, the State attempted to reach a settlement to enter the commitment order specifying supervised release. Id.

¶ 45. Ultimately, Castillo informed the trial court that he would admit to the allegations in the petition and waive his trial rights in exchange for a court order requiring the Department of Health and Human Services to locate a community placement. Id. at 604-05. The court accepted Castillo's admission and then ordered the department to identify a community-based facility. Id. at 605.

¶ 46. The department attempted to place Castillo in a community-based setting. The trial court accepted the department's recommendation that Castillo be placed at a facility called Cephas House. Although Cephas House was initially receptive to the placement, it declined to accept Castillo after negative public reaction to the placement caused the House to fear that the town would take zoning action against it. The landlord also threatened not to renew the lease if Castillo were placed there. Id.

¶ 47. An alternative plan to place Castillo in a private apartment under the supervision of a private social worker also failed after media attention focused on Castillo living at the apartment building. The landlord bowed to community pressure and refused to rent to the department. Id.

¶ 48. The State moved to reopen Castillo's dispo-sitional order and modify it to an institutional placement, since "the attempts to effectuate and execute the court's order for placement have not been successful, [and] a different placement alternative must be established." Id. at 605-06. The trial court granted the motion and ordered Castillo committed to the Wisconsin Resource Center. Id. at 606.

¶ 49. On appeal, we recognized that it was within the trial court's discretion to amend its earlier order when it became apparent that the department would be unable to place Castillo in a community-based setting. However, we concluded that the trial court erroneously exercised its discretion when it granted the State's motion and revised the order, committing Castillo to an institution. Id. at 610. We concluded that "Castillo's admission to the allegations in the underlying petition was akin to a plea agreement" and held that when the State failed to adhere to its bargained promise, regardless of the reason, the trial court was required to allow Castillo an opportunity to withdraw his plea admitting to the petition. Id.

¶ 50. As a remedy, we granted one of Castillo's alternative requests for relief: withdrawal of his plea admitting to the petition. See id. at 611. We declined Castillo's request to require enforcement of the plea. See id. at 603 n.1. Judge Richard S. Brown dissented with respect to our remedy, stating that he would direct the trial court to enter an order demanding that the department find a facility for Castillo. See id. at 612 (Brown, J., concurring in part, dissenting in part). Judge Brown explained:

What saves the sexual predator law from being unconstitutional is its requirement that DHSS provide the defendant with treatment in the least restrictive manner possible, not the least restrictive treatment that DHSS has available. Since the trial court found that the least restrictive treatment for Heriberto Castillo, Jr., was supervised community placement, the difficulty that DHSS faced in locating an appropriate facility was not legitimate grounds for later ruling that Castillo should instead be placed at the Wisconsin Resource Center.

Id.

¶ 51. Judge Brown also noted, "Although the attorney general's office argues that this court cannot make a state agency appropriate funds without violating the separation of powers doctrine, when the legislature wrote the sexual predator law it imposed a duty on [the department] to provide such facilities." Id. at 619.

¶ 52. Judge Brown's dissent was prophetic because four years later in Sprosty, the supreme court agreed. See Sprosty, 227 Wis. 2d at 320. The trial court in Sprosty found after an evidentiary hearing that Sprosty should be placed on supervised release. Id. at 321. The department had difficulty placing Sprosty and determined that he could not be released because the county did not have the appropriate resources to address his treatment needs in a community setting. Id. at 322. The trial court concluded that it could not compel private agencies to accept Sprosty, nor would it require the State to build facilities in order to provide supervised release. Because the court would not release Sprosty under conditions that were less than necessary to ensure his treatment and the protection of the public, it denied his supervised release and returned Sprosty to secure confinement; Sprosty appealed. Id.

¶ 53. We reversed the trial court. See State v. Sprosty, 221 Wis. 2d 401, 585 N.W.2d 637 (Ct. App. 1998). Our supreme court affirmed our decision, concluding:

[O]nce a trial court has made a finding and ordered supervised release under § 980.08(4), it is required to order a treatment plan under § 980.08(5) and to ensure that the person is placed on supervised release in accordance with the plan. In some cases, the creation of facilities and services to provide the requisite treatment and to protect the public while a person is on supervised release in the community may be necessary, for which DHFS is responsible. Wis. Stat. § 980.12(1).

Sprosty, 227 Wis. 2d at 320. The court held that a circuit court not only has the authority under Wis. Stat. § 980.08(5), but is also required to order a county, through the department, to create whatever programs or facilities are necessary to accommodate an order for supervised release. See id.

¶ 54. Krueger's appeal presents two main issues: (1) whether an agreement to forego a jury trial on a petition for discharge is akin to a plea agreement; and (2) if so, whether Sprotsy is inapplicable because the supervised release order was based on a plea agreement, rather than on an evidentiary hearing.

¶ 55. First, we concluded in Castillo that although Wis. Stat. ch. 980 proceedings are not criminal in nature, an alleged sexually violent person's admission to the allegations in the underlying petition pursuant to a stipulation is akin to a plea agreement in a criminal case. See Castillo, 205 Wis. 2d at 606. We conclude that Krueger's decision to forego a jury trial on his petition for discharge is likewise akin to a plea agreement.

¶ 56. Having established probable cause for a hearing on his petition for discharge, Krueger was entitled to a jury trial on his petition. See Post, 197 Wis. 2d at 329-30. Pursuant to Wis. Stat. §§ 980.09(2)(b) and 980.03, Krueger had other rights as well, such as to have counsel, to remain silent and to present and cross-examine witnesses. At the hearing, the State would have been required to prove by clear and convincing evidence that Krueger is still a sexually violent person. See Wis. Stat. § 980.09(2)(b). When Krueger gave up these rights and agreed to accept supervised placement, he effectively relieved the State of its burden to prove he was still a sexually violent person. We conclude Krueger's agreement, like Castillo's agreement with the State, was akin to a plea agreement.

¶ 57. Our conclusion is consistent with the trial court's approach to the plea hearing. We have already noted that the trial court approached the stipulation as if it were a plea agreement. First, the trial court inquired as to the factual basis for the stipulation, asking the State on two occasions whether Galli agreed that supervised release was appropriate. Second, the trial court entered into a colloquy with both Krueger and his counsel to determine whether Krueger's decision to forego his jury trial was made freely, voluntarily, and intelligently. Finally, the trial court restated the factors a trial court considers before ordering supervised release. Ultimately, the trial court accepted Krueger's plea, cancelled the jury trial, adopted the stipulated facts as part of its finding, and ordered supervised release.

¶ 58. Next, we consider whether Sprotsy controls the resolution of this case. The State argues that Castillo, rather than Sprosty, is controlling because the trial court's order for supervised release was based on a stipulation, rather than on evidence adduced at a hearing. We are unconvinced. The trial court accepted the parties’ stipulation and ordered supervised release, implicitly finding that although Krueger was a sexually violent person, it was not substantially probable that he would engage in acts of sexual violence if institutional care was discontinued. See WlS. STAT. § 980.08(4). Krueger, having given up his right to a jury trial on his discharge petition in exchange for the stipulation, is entitled to the same due process rights as a criminal defendant who has entered a plea agreement.

¶ 59. Having concluded that Krueger's agreement to forego a jury trial in exchange for supervised release was akin to a plea agreement and that Sprotsy is equally applicable under these facts, we must next examine Krueger's right to enforcement of the plea agreement. The United States Supreme Court has recognized that once a plea has been entered in accordance with a negotiated plea agreement, a criminal defendant has a constitutional right to enforce the agreement. See Mabry v. Johnson, 467 U.S. 504, 507-08 (1984). In this vein, the prosecutor is constrained to abide by the plea agreement when a criminal defendant pleads guilty or no contest pursuant to it. See Santobello v. New York, 404 U.S. 257, 262 (1971).

¶ 60. Principles of substantive due process are implicated by and inherent in the process of enforcing a plea agreement. State v. Scott, 230 Wis. 2d 643, 651, 602 N.W.2d 296 (Ct. App. 1999). Once a defendant has given up his bargaining chip by pleading guilty, due process requires that the defendant's expectations be fulfilled. Id. at 652. Thus, whatever discretion a prosecutor may have to withdraw from a plea agreement prior to entry of the plea, once the plea is entered, the defendant has a constitutional right to enforcement of the bargain. See Mabry, 467 U.S. at 507-08.

¶ 61. In Castillo, we concluded that the State violated its plea agreement with Castillo when it failed to adhere to its bargained promise by requesting a modification of the dispositional order to provide for institutional care. See Castillo, 205 Wis. 2d at 610. Furthermore, we concluded that because specific performance of the terms of the plea agreement was not possible, the only available remedy was allowing Castillo to withdraw his pleas. See id. at 611.

¶ 62. Although the unavailability of a residence was determined to be a barrier to specific performance in Castillo, our supreme court's decision in Sprotsy mandates a different conclusion in this case. As previously indicated, the trial court accepted the stipulation in lieu of a jury trial, implicitly finding that although Krueger was a sexually violent person, it was not substantially probable that Krueger would engage in acts of sexual violence if institutional care was discontinued. It ordered supervised release as contemplated in WlS. ¿TAT. § 980.08(4). Therefore, the court is required to order a treatment plan under § 980.08(5) and to ensure that Krueger is placed on supervised release in accordance with the plan. See Sprosty, 227 Wis. 2d at 320.

¶ 63. The State argues that placement in Mani-towoc County is impossible and, therefore, vacation of the stipulation is the only remedy. Pursuant to Sprotsy, however, placement in Manitowoc County is not impossible: "In some cases, the creation of facilities and services to provide the requisite treatment and to protect the public while a person is on supervised release in the community may be necessary, for which [the department] is responsible." Id.

¶ 64. In the alternative, the trial court has discretion to amend the release plan to include release in other counties. See State v. Keding, 214 Wis. 2d 363, 370, 571 N.W.2d 450 (Ct. App. 1997) (placement options are not limited to the county of residence, if that county lacks the facilities to provide appropriate treatment). "[A] circuit court may consider treatment facility options in any community in the state, although as a practical matter, it makes sense to look to the resources near at hand first." Id.

¶ 65. In summary, faced with the impossibility of placing Krueger with his stepfather, the trial court had discretion to modify the release plan to effectuate supervised release, including the power to order the department to create facilities and services. See Sprosty, 227 Wis. 2d at 320. Accordingly, the trial court erroneously exercised its discretion when it instead elected to grant the State's motion to vacate the order for supervised release. We reverse and remand with instructions that the trial court reinstate the order for supervised release and, if necessary, amend the release plan to effectuate Krueger's prompt supervised release to Manitowoc County or another county.

II. Dismissal of 2000 discharge petition

¶ 66. After the trial court dismissed his 1997 petition for discharge, Krueger appealed to this court. He also filed a new petition for discharge in January 2000. The trial court found there was no probable cause for a hearing and dismissed the 2000 discharge petition. Krueger appealed that dismissal as well. Krueger moved this court to Create a separate appellate case number for the appeal of the 2000 petition, but we denied his request. Consequently, his brief includes arguments regarding both petitions.

¶ 67. The State has failed to address Krueger's arguments with respect to the January 2000 discharge petition. Accordingly, Krueger's arguments are deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (Respondents on appeal cannot complain if propositions of appellants are taken as confessed which they do not undertake to refute.). We therefore reverse the trial court's order dismissing Krueger's petition for discharge and remand for a hearing in accordance with WlS. STAT. § 980.09(2)(b). Pursuant to Post, 197 Wis. 2d at 329-30, Krueger has the option of requesting that a jury be the fact finder at that hearing.

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

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

       WISCONSIN STAT. § 980.08 provides in relevant part:
      (1) Any person who is committed to institutional care under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 6 months have elapsed since the initial commitment order was entered, the most recent release petition was denied or the most recent order for supervised release was revoked....
      (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment.
      (4) ... The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care....

        (5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department and the county department under s. 51.42 in the county of residence of the person, as determined under s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antian-drogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3)(aw)l.d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence ....

       WISCONSIN Stat. § 980.09(2) provides in relevant part:
      (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 under s. 980.06 to determine whether to modify the person's existing commitment order.

       The State in its brief observes that the transcripts indicate that there was confusion among counsel and the trial court regarding the appropriate procedures for reexamination under WlS. Stat. § 980.07, petitions for supervised release under WlS. 'Stat. § 980.08, and petitions for discharge under WlS. Stat. § 980.09. As a result, the trial court heard testimony and argument on numerous issues at the same time.

       We also note that since his commitment in 1996, Krueger has received continuing reviews pursuant to WlS. Stat. § 980.07. In each instance, the trial court found that Krueger should remain committed and that placement should remain in an institutional setting.

       The trial court referred to the statutory factors for supervised release contained in Wis. Stat. § 980.08(4) because the parties' stipulation provided that Krueger was an appropriate candidate for release under § 980.08(5). Given that Krueger's petition was originally for discharge, the court could have applied the release standards provided in Wis. STAT. § 980.06(2)(c). This is because the statute governing petitions for discharge provides that if the court is satisfied that the State has established clear and convincing evidence that the petitioner is a sexually violent person, "the court may proceed under s. 980.06 to determine whether to modify the person's existing commitment order." See WlS. STAT. § 980.09(2)(c). The provisions for supervised release under § 980.06(2)(c) and § 980.08(5) are identical, except that in the former the department is given 21 days to create a release plan and in the latter, the department has 60 days. Because there is no other substantive difference between § 980.06(2)(c) and § 980.08(5), the fact that the court ordered supervised release for Krueger pursuant to § 980.08 as opposed to § 980.06 does not affect our decision.

       The document, entitled "Stipulation for Order," was signed by the parties and the trial court. It provided in relevant part:
      1. That the jury trial scheduled for August 12 and 13,1998 in the circuit Court for Lincoln County on the respondent's petition for discharge may be canceled; and
      2. That August T. Krueger is an appropriate individual for supervised release pursuant to Section 980.08(5) Wis. Stats, and the court may enter an order pursuant to such statute providing that the Wisconsin Department of Health and Family Services and the Manitowoc Department under 51.42 shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services and alcohol and other drug abuse treatment.
      3. The county of the respondent's residence is Manitowoc.
      4. The plan shall be presented to the court for its approval within sixty (60) days after the court enters this order.
      5. The court shall conduct a hearing regarding the plan and both the state and the respondent are free at such hearing to urge other supervised release plans as either sees fit.
      6. Pending the court hearing on the plan the respondent shall remain as a patient at his present residency, the Wisconsin Resource Center at Winnebago, Wisconsin.

       The parties were referring to State v. Sprosty, 221 Wis. 2d 401, 585 N.W.2d 637 (Ct. App. 1998), which was ultimately affirmed at 227 Wis. 2d 316, 595 N.W.2d 692 (1999).

       The plan discussed treatment, employment, rules of supervision, law enforcement notification and other issues. Because the issue of residence was ultimately identified as the key barrier to plan implementation, we do not restate the entire plan.

       Whether the department would be estopped from immediately detaining Krueger is not an issue before this court. However, we note that we are troubled by the assistant attorney general's explicit statement that he would advise the department to do so. The district attorney, acting on behalf of the State, entered into a stipulation that provided for Krueger's supervised release. To suggest that the State would allow supervised release for as little as a day and then move to revoke Krueger's release, absent evidence of a violation while on release, after Krueger gave up his right to a jury trial raises issues of fundamental fairness that will no doubt need resolution by the courts in the future.

       The Department of Health and Social Services was renamed the Department of Health and Family Services, effective July 1, 1996. 1997 — 98 Wisconsin Blue Book at 419. This name change did not alter the department's role as outlined in WlS. Stat. ch. 980.

       Indeed, Krueger has already offered to forego placement in Manitowoc County if the court would order the department to investigate placement options in other counties.


source: Caselaw Access Project

author: BROWN, P.J.

license: Public Domain

text:
    Kathy Hoffman, Bob Baranowski, Scott Hexom, Mary Ellen Heus and Jeffrey Schultz, Petitioners-Respondents, v. Wisconsin Employment Relations Commission, Respondent-Co-Appellant, New Berlin Education Association, Intervenor-Respondent, New Berlin Public School District, Intervenor-Appellant.
    Court of Appeals

      No. 00-1368.

      Oral argument February 9, 2001.

    Decided March 21, 2001.

    2001 WI App 87
    (Also reported in 625 N.W.2d 906.)

      On behalf of the respondent-co-appellant Wisconsin Employment Relations Commission, the cause was submitted on the brief of John D. Niemisto, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by William H. Ramsey.

    On behalf of the intervenor-appellant, the cause was submitted on the briefs of Michael Aldana and Luis I. Arroyo of Quarles & Brady LLP of Milwaukee. There was oral argument by Michael J. Spector.

    On behalf of the petitioners-respondents, the cause was submitted on the brief of Edward R. Garvey of Garvey & Stoddard, S.C. of Madison.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of and oral argument by Anthony L. Sheehan, Wisconsin Education Association Council of Madison.
    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. This case involves a dispute between members of a teachers' union and a school district. After the teachers of the New Berlin Education Association (NBEA) worked without a contract for over a year, the NBEA bargaining representatives and the New Berlin Public School District (District) reached a tentative agreement for the duration of 1997-2001. This agreement resulted in the 1997-1999 and 1999-2001 collective bargaining agreements. The ensuing ballot to the members of the teachers' union called for the members to either accept both collective bargaining agreements or reject them in one vote; in other words, the membership was not given the option of voting on each contract separately. The circuit court held that the ratification process created one contract in excess of two years in violation of WlS. STAT. § 111.70(4)(cn) (1999-2000).

¶ 2. In the briefs of the parties, it appeared that the issue was whether the statute prohibited the ratification process used in this case. Petitioner Kathy Hoffman has not departed from this initial position. But, at oral arguments, intervenor NBEA posited that the real issue is not how the contracts were ratified. Rather, the crux of the matter is whether the applicable statute prohibits integrated contracts of the type involved in this case. We hold that WlS. STAT. § 111.70(4)(cn) does not prohibit the ratification process used by the union in this case. Nor does the statute prohibit the use of integrated contracts as a mechanism to implement collective bargaining agreements.

¶ 3. In 1997, NBEA and the District failed to agree to a July 1, 1997-June 30, 1999 collective bargaining agreement for professional school employees. As a result, the Wisconsin Employment Relations Commission (WERC) attempted to mediate a settlement, which also failed. The District implemented a Qualified Economic Offer pursuant to WlS. Stat. § 111.70(l)(nc) for 1997-99 in which it maintained minimum salary increases and fringe benefits. The New Berlin teachers worked for over a year without a contract. During the summer of 1998, NBEA and the District ratified a tentative agreement for 1997-1999 and 1999-2001. However, NBEA declared the agreement null and void because it was in excess of two years.

¶ 4. In October 1998, NBEA bargaining representatives and the District ratified a new tentative agreement covering 1997-1999 and 1999-2001. The ballot gave the union membership the option of either rejecting or accepting both collective bargaining agreements; that is, the union membership could not vote on each contract separately.

¶ 5. The union membership voted to accept the two bargaining contracts. Some of the teachers in the NBEA, who we will call "Hoffman" for the sake of brevity, apparently did not like the way the vote went. They first filed a petition with WERC challenging the validity of the collective bargaining agreements. They got no immediate help from the union at this time, however, because the majority of the NBEA leadership favored ratification. At the hearing, Hoffman claimed that due to the way the collective bargaining agreements were ratified, the parties had agreed to one 3-year collective bargaining agreement in violation of WlS. STAT. § 111.70(4)(cn). This statute plainly says that, except for the initial collective bargaining agreement between the parties, all bargaining contracts concerning school district professional employees shall be for a term of two years. WERC found for the District, stating that the parties validly agreed to two 2-year contracts. The circuit court reversed, stating that "[w]hile the initial collective bargaining agreements may have been for two 2 year contracts, the way the contracts were presented to the voters created a three year contract, thus violating the plain meaning of [§ 111.70(4)(cn)]." On appeal, WERC challenges the circuit court's ruling. The District has intervened on WERC's side, and NBEA, which has changed leadership since the petition with WERC was filed, has intervened on Hoffman's side.

¶ 6. We begin our analysis with a discussion of the standard of review. The various standards of review of an agency's conclusions of law are well established and need not be repeated here. See Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992). Hoffman argues that we should review WERC's decision de novo because this case is clearly one of first impression for WERC and WERC has no special expertise or experience. WERC and the District contend that we should apply a great weight or due weight standard because, while this is a case of first impression, WERC has special expertise in the area of collective bargaining.

¶ 7. We determine that a de novo standard of review is appropriate where, as here, the statute in question does not address the agency's general legislative directive to promote labor peace, nor does it invoke the agency's authority. Rather, the statute implementing standard duration of collective bargaining agreements is a product of the Joint Committee on Finance and its concern with fiscal control over school budgets. Because school budget issues are not an area within WERC's expertise, nor has WERC had experience interpreting Wis. Stat. § 111.70(4)(cn), we will engage in a de novo review.

¶ 8. The statute at issue, WlS. STAT. § 111.70(4)(cn), states in relevant part,

Term of professional school employee agreements. Except for the initial collective bargaining agreement between the parties, every collective bargaining agreement covering municipal employees who are school district professional employees shall be for a term of 2 years expiring on June 30 of the odd-numbered year. (Emphasis added.)

Before we engage in the interpretation of this statute, we have some preliminary housekeeping to do. Hoffman's initial position is that the statute unambiguously limits the term of professional school employee agreements to two years per contract. Hoffman then argues that, all along, the parties intended to strike a three-year deal in clear violation of the statute. This is evidenced by the bargaining history of the parties, the intertwined provisions of the agreements and ultimately by the vote itself. The fatal flaw in the ballot, Hoffman argues, is that the membership had to accept both agreements or none at all. This manifested the ultimate intent of the parties to agree to a three-year deal. On the other hand, Hoffman asserts, if the membership had been presented with the option to vote separately on each contract, the statute would have been satisfied. The circuit court concurred in this conclusion.

¶ 9. We see Hoffman's initial argument as basically raising a question of fact despite the assertion by all the parties involved that we are dealing solely with a statutory interpretation issue. In other words, we are satisfied that Hoffman is attempting to show how the principals to the contract intended for the contract to be three years in length.

¶ 10. This argument fails because it is WERC which was given the responsibility of making the findings of fact regarding the intent of the principals in the first instance. Hoffman petitioned WERC for a declaratory ruling on whether the contract had run afoul of the statute and WERC made findings of fact regarding intent. In reviewing an agency's factual findings, we will uphold an agency's determination if it is supported by substantial evidence, such that reasonable minds could arrive at the same conclusion as the agency. Madison Gas & Elec. Co. v. PSC, 109 Wis. 2d 127, 133, 325 N.W.2d 339 (1982). Here, WERC specifically found that the parties intended to reach agreement on two 2-year contracts. As evidence, it pointed to two signed two-year contracts in the record, the text of the tentative agreement referring to "the 1999-2001 Master Agreement," and the ballot which explicitly stated that two 2-year contracts were being presented. Therefore, as to this argument, we hold that WERC's finding with respect to the intent of the parties is supported by substantial evidence.

¶ 11. We now respond to Hoffman's assertion that WlS. STAT. § 111.70(4)(cn) gives union membership the right to vote on each contract separately. On its face, the statute does not address the process of ratification as a method of satisfying its duration requirement. Nor does Hoffman point to any legislative history that would show the legislature's intent to require each contract to be ratified in a separate vote. While requiring separate ballots seems reasonable and good public policy, we conclude that it is not required by the statute in question.

¶ 12. Now, we get to what we consider to be the major issue in this case. At oral argument, NBEA stated that the form of the ballot was probably irrelevant to its position. The ballot was predetermined by the package deal that came out of the tentative agreement reached by the parties. Thus, the two collective bargaining agreements were linked not by the one-vote format of the ballot, but by the provisions of the agreements themselves. Moreover, there is ample evidence in the record that both parties understood a package deal was being presented to the membership for ratification. The issue according to NBEA is not whether the ratification process passes statutory muster, but whether integration of collective bargaining agreements is permitted under WlS. STAT. § 111.70(4)(cn). Hoffman also asserted at oral argument that as a matter of law this statute prohibits integration.

¶ 13. According to the general principles of statutory construction, our purpose is to discern the intent of the legislature. State ex rel. Garel v. Morgan, 2000 WI App 223, ¶ 15, 239 Wis. 2d 8, 619 N.W.2d 285. We first look to the language of the statute. Id. If the language of the statute clearly and unambiguously sets forth the legislative intent, we do not resort to extrinsic evidence to ascertain the statute's meaning. Turner v. Gene Dencker Buick-Pontiac, Inc., 2001 WI App 28, ¶ 14, 240 Wis. 2d 385, 623 N.W.2d 151. A statute is ambiguous if it can be understood in two or more different senses by reasonably well-informed persons. Id. In that case, we use extrinsic sources, such as legislative history, to discern the intent of the legislature. Id. Depending upon the facts in a given case, the same statute may be ambiguous in one context and unambiguous in another. Sauer v. Reliance Ins. Co., 152 Wis. 2d 234, 241, 448 N.W.2d 256 (Ct. App. 1989).

¶ 14. On its face, WlS. STAT. § 111.70(4)(cn) is unambiguous. It clearly states that collective bargaining agreements must have a duration of two years. WERC argues that each of the two agreements complies with the plain language of the statute. Conversely, NBEA contends that the two contracts are inextricably linked and such integrated contracts violate the plain language of the statute. We conclude that the theories advanced by both parties are reasonable and the statute is therefore ambiguous as applied to these facts. The parties have presented us with pertinent legislative history and we will focus on that to ascertain legislative intent.

¶ 15. Wisconsin Stat. § 111.70(4)(cn) is part of the Municipal Employment Relations Act (MERA). The key policy underlying MERA is the encouragement of voluntary resolution of labor disputes, which promotes labor peace and harmony. See § 111.70(6). Significantly, § 111.70(4)(cn) came out of the Joint Committee on Finance as an effort to make collective bargaining agreements coincide with the state's two-year budget cycle. See 1993-95 Budget Issue Paper #1031, regarding "Limitations on the Term of Municipal Employe Collective Bargaining Agreements" at p. 3 (May 24, 1993). It was thought that a standardized term and expiration date for collective bargaining agreements would enable the legislature to impose fiscal restraint on school districts in a uniform manner. Id. The two-year limit would also reduce the incentive to delay in reaching a settlement as new comparables developed in other localities. Id. Thus, the policy of § 111.70(4)(cn), as the parties agreed at oral argument, is largely fiscal in nature.

¶ 16. Under this interpretation of the statute, we do not see how integrated collective bargaining agreements contravene the intent of the legislature. Although provisions of the agreements are linked, each separate contract has a two-year term. Each contract coincides with the biennium budget. There is simply nothing in the plain language of the statute or in its underlying fiscal policy that prohibits integration.

¶ 17. Hoffman also expresses concern that ratification of multiple year contracts would create a slippery slope for the duration of municipal employees' collective bargaining agreements that would obfuscate the purpose of the entire statute. We do not view this as a realistic problem. It is not in the interest of teachers to negotiate far into the future for the simple reason that they would lose out on comparable benefits packages negotiated in other districts. Nor do school boards have an incentive to commit future school boards to collective bargaining agreements when school budgets are uncertain.

¶ 18. We conclude that integration of collective bargaining agreements is not precluded by WlS. Stat. § 111.70(4)(cn). We believe that as a practical matter, this holding comports with actual practice in the process of collective bargaining. Although contracts must be for a term of two years, negotiations do not follow such strict guidelines. Collective bargaining is a fluid process that requires flexibility. As NBEA noted in its brief, it has long been the practice throughout the state that when parties are unable to reach an agreement and are without a contract for an extended period of time, the parties will settle the outstanding year of a collective bargaining agreement and the subsequent collective bargaining agreement at the same time. Our interpretation of § 111.70(4)(cn) does not change this long-standing practice. This result promotes regularity in the bargaining process and labor peace, which is consistent with the broad mandate of MERA.

By the Court. — Judgment reversed.

       AI1 references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The ballot stated:
      YES, I VOTE TO RATIFY THE 1998-99 PORTION OF THE 1997-98 (sic) MASTER AGREEMENT WITH THE NEW BERLIN BOARD OF EDUCATION, AND THE 1999-2001 MASTER AGREEMENT WITH THE NEW BERLIN BOARD OF EDUCATION.
      NO, I VOTE NOT TO RATIFY THE 1998-99 PORTION OF THE 1997-98 (sic) MASTER AGREEMENT WITH THE NEW BERLIN BOARD OF EDUCATION, AND THE 1999-2001 MASTER AGREEMENT WITH THE NEW BERLIN BOARD OF EDUCATION.
      At the hearing, it was clarified that the parties intended the ballot to read "1997-99."

       Hoffman claims that the agreement is for three years because it was ratified in 1998, rather than 1997.

       The tentative agreement had provisions that phased in over the duration of the two contracts. For example, it provided that one-third of teachers would get laptops in 1998-1999, one-third in 1999-2000 and one-third in 2000-2001.

       WISCONSIN Stat. § 111.70(4)(cn) was enacted by 1993 Wis. Act 16, § 2207ar and became effective July 1,1996.


author: VERGERONT, J.

text:
    In re the Commitment of Kerby G. Denman: State of Wisconsin, Petitioner-Respondent, v. Kerby G. Denman, Respondent-Appellant.

    Court of Appeals

      No. 99-1829.

      Submitted on briefs December 6, 1999.

    Decided March 22, 2001.

    2001 WI App 96
    (Also reported in 626 N.W.2d 296.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Glenn L. Cushing, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Vergeront and Roggensack, JJ., and William Eich, Reserve Judge.

      Petition to review denied.

   VERGERONT, J.

¶ 1. Kerby Denman appeals the trial court's judgment determining he is a sexually violent person and ordering commitment under WlS. Stat. ch. 980. Denman argues he is entitled to a new trial because the record does not show he was personally advised that the jury's verdict had to be unanimous before he decided to forgo a jury trial. We conclude a respondent to a ch. 980 petition need not be advised that a jury's verdict must be unanimous in order for the respondent's withdrawal of the request for a jury trial be valid.

¶ 2. Denman also contends the evidence was insufficient because the State did not prove he was within ninety days of discharge or release as required by WlS. Stat. §§ 980.02(2)(ag) and 980.05(3)(a) (1999-2000). The resolution of this issue is controlled by State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, and State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321. Under these cases, Den-man is entitled to a remand for the purpose of an evidentiary hearing at which the State will be permitted to attempt to prove beyond a reasonable doubt that Denman was within ninety days of release at the time the petition was filed. We therefore reverse and remand.

Waiver of Jury Trial

¶ 3. Denman was convicted of two counts of first-degree sexual assault of a child in 1988 and 1989 and was sentenced to fourteen years' imprisonment on each count, to be served concurrently in the Wisconsin State Prison. Prior to his release, the State filed on January 13, 1997, a petition under WlS. STAT. ch. 980 alleging Denman was a sexually violent person. The court found probable cause to believe Denman was a sexually violent person as defined in WlS. STAT. § 980.01(7), and the matter was scheduled for a jury trial. After continuances not relevant to this appeal, the matter was tried to the court on April 22, 1999. Just before the trial began, the following interchange took place.

THE COURT: All right. I have one housekeeping matter too that I'd like to address first and that deals with the issue of the jury. This matter had originally been scheduled for trial by jury, to start on either Monday or Tuesday of this week. I was advised last week by counsel for Mr. Denman that he wished to waive the jury for this proceeding. Is that still the case, [counsel]?
[COUNSEL]: Yes, it is, your Honor.
THE COURT: And do you agree with that, Mr. Denman?
MR. DENMAN: Yes, I do, your Honor.
THE COURT: Okay. You understand that under the statutes that apply to this type of proceeding, you have the right to have the jury decide whether or not you are a sexual predator?
MR. DENMAN: Right.
THE COURT: And you agree, apparently, to waive your right to that jury and have that issue decided by the Court, namely myself?
MR. DENMAN: Right.
THE COURT: Has anyone made any threats or promises to you to get you to waive the right to a jury trial?
MR. DENMAN: No, your Honor.
THE COURT: Have you had enough time to discuss that decision with your attorney?
MR. DENMAN: Yes, your Honor.
THE COURT: Is there anything that you don't understand about this aspect of the right to a jury trial and its waiver?
MR. DENMAN: No, your Honor.
THE COURT: And, [counsel], are you satisfied that the waiver has been freely, knowingly and voluntarily given?
[COUNSEL]: Yes, I am, your Honor. We had a chance to talk about this for some time at the Resource Center.
THE COURT: All right. And I believe the State has to waive its right as well.
[STATE]: That's correct, your Honor. Pursuant to 980.05 sub 2, the State does waive its right to a jury trial.
THE COURT: All right, I will accept the waiver of Mr. Denman to the jury then; find that to be free, knowing and voluntary and the matter will then proceed to trial with the Court.

After the trial to the court, the court found Denman was a sexually violent person and ordered him committed under ch. 980.

¶ 4. Denman contends on appeal that his waiver of the right to a jury trial was not valid because the trial court did not advise him that the court could not accept a jury verdict unless the verdict was agreed to by each member of the jury. He reasons that this is a requirement for a valid waiver of the constitutional right to a jury trial in a criminal case under State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989), and constitutional rights available to a defendant in a criminal proceeding are available to a person subject to a Wis. Stat. ch. 980 proceeding by virtue of Wis. Stat. § 980.05(lm). Subsection (lm) provides:

At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.

¶ 5. In Resio, the supreme court concluded that a criminal defendant's waiver of the constitutional right to a jury trial is valid and effective when the defendant understands that his or her guilt or innocence will be determined by a single judge rather than a group of twelve persons; knowledge of the unanimity requirement is not constitutionally required. Resio, 148 Wis. 2d at 695-96. However, as a matter of judicial administration pursuant to the supreme court's powers under WlS. Const, art. VII, § 3, the court directed that "circuit court[s] in a criminal case must advise the defendant that the court cannot accept a jury verdict that is not agreed to by each member of the jury." Resio, 148 Wis. 2d at 696-97.

¶ 6. The State responds that because there is a specific subsection, Wis. Stat. § 980.05(2), that provides a different procedure for obtaining a jury trial than that in criminal cases, the legislature did not intend that all the requirements for waiving a jury trial in a criminal case apply in a trial under § 980.05. Section 980.05(2) provides:

The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under s. 980.04. If no request is made, the trial shall be to the court. The person, the person's attorney, or the district attorney or department of justice, whichever is applicable, may withdraw his, her, or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.

¶ 7. The resolution of the relationship between WlS. Stat. § 980.05(lm) and (2) presents a question of law, which we review de novo. See State v. Bernstein, 231 Wis. 2d 392, 399, 605 N.W.2d 555 (Ct. App. 1999), review denied, 233 Wis. 2d 84, 609 N.W.2d 474 (Wis. Jan. 18, 2000) (No. 98-2259). When we construe a statute, our aim is to ascertain the intent of the legislature, and in doing so we look first to the language of the statute itself. Id. If that plainly expresses the legislative intent, we apply the language of the statute to the facts at hand. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997).

¶ 8. In Bernstein, we examined the interplay between these same two subsections in the context of a claim that a valid waiver of the right to a jury trial under WlS. STAT. § 980.05(2) requires the respondent to personally waive a trial by jury. The basis for that claim was the same as in this case: because of § 980.05(lm), the standards for a knowing and voluntary waiver of the constitutional right to a jury trial in a criminal case applied.

¶ 9. In Bernstein, the State requested a jury trial and then withdrew that request. Bernstein's attorney had previously advised the court that Bernstein did not want a jury trial. When Bernstein and his counsel were both present, the court stated its understanding that Bernstein did not want a jury trial and asked Bernstein several questions relating to his waiver of a jury trial; but Bernstein himself never stated on the record he was waiving his right to a jury trial. We held that because WlS. STAT. § 980.05(2) included a specific provision for the circumstance in which a person wished to withdraw a request for a jury trial, that provision governed the right to a jury trial in a proceeding under WlS. Stat. ch. 980 rather than the more general provision in § 980.05(lm) and rather than the case law governing the constitutional right of a criminal defendant to a jury trial. Bernstein, 231 Wis. 2d at 399-400. Examining the language of § 980.05(2), we concluded that, since there was no express requirement that the respondent's consent to the State's withdrawal of its request for a jury trial be in the form of a statement made personally by the respondent to the court, the legislature did not intend such a requirement, and we held Bernstein had consented. Bernstein, 231 Wis. 2d at 400-01.

¶ 10. More recently in State v. Thiel, 2001 WI App 32, ¶ 18, 241 Wis. 2d 465, 626 N.W.2d 26, we have decided that the standards that apply to the waiver of the constitutional right to counsel in a criminal proceeding apply in all WlS. STAT. ch. 980 proceedings in which the respondent is statutorily entitled to counsel. Thiel does not conflict with our reasoning or conclusion in Bernstein. The subsection providing a right to counsel, WlS. Stat. § 980.03(2)(a), does not contain any specific detail concerning the procedure for requesting or waiving counsel comparable to WlS. STAT. § 980.05(2); thus, there is no plain expression of legislative intent that the standards applicable to a criminal defendant not apply as there is with respect to jury trials. The same is true of the cases that, according to Denman, show we have previously incorporated criminal law principles when construing ch. 980. See, e.g., State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997), State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996). In none of these cases was there an applicable section expressing legislative intent that criminal law principles not be incorporated in ch. 980 proceedings.

¶ 11. Following Bernstein, we look to WlS. STAT. § 980.05(2), rather than the case law governing the waiver of the constitutional right to a jury trial in criminal cases, to determine whether Denman's waiver was valid. Under the plain language of this statute, either the respondent, the respondent's attorney, or the State must request a jury trial within ten days after the probable cause hearing; otherwise the trial is to the court. This is in marked contrast to the statute on the waiver of a jury trial in criminal proceedings, which provides that trial is to a jury unless the defendant waives a jury "in writing or by statement in open court [or]... on the record, with the approval of the court and the consent of the state." WlS. STAT. § 972.02(1). There is no comparable provision in § 980.05(2) for a personal waiver by the respondent of the right to a jury trial; and, because under § 908.05(2) the passage of the ten-day time period without a request automatically results in a trial to the court, this statute does not place upon the court the obligation to ascertain that the respondent intended not to request a jury trial before scheduling the matter as a court trial.

¶ 12. Similarly, the provision in WlS. STAT. § 980.05(2) allowing the requesting party to withdraw the request does not impose any requirement other than the consent of the other two persons: it does not require the court to engage in any particular procedure to make sure that, when the requesting party informs the court he or she wishes to withdraw the request, it is truly the wish of the party. The absence of express requirements for such a procedure are an indication the legislature did not intend to impose any. Bernstein, 231 Wis. 2d at 400-01. We therefore conclude § 980.05(2) does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of his or her request for a jury trial to be valid.

¶ 13. Turning to the facts of this case, it is unmistakably clear from the record that Denman knew he was entitled to a trial to the jury, but he wanted to waive that right and have a trial to the court instead. We therefore conclude he is not entitled to a new trial on this ground.

Proof of Ninety Days from Release

¶ 14. The petition filed against Denman alleged he was within ninety days of release, and that his release was scheduled for January 15, 1997. However, the State presented no proof of this in the trial to the court. Wisconsin Stat. § 980.02(2) requires that the petition contain such an allegation and WlS. STAT. § 980.05(3)(b) provides that the State has the burden of proving the allegations in the petition beyond a reasonable doubt. Denman argues that because the State did not prove this allegation beyond a reasonable doubt, the commitment order must be vacated and the petition dismissed.

¶ 15. While this appeal was pending, the supreme court decided Thiel, 2000 WI 67 at ¶¶ 35-37, in which it held the State must prove beyond a reasonable doubt that the respondent in a WlS. STAT. ch. 980 proceeding is within ninety days of release or discharge. The supreme court did not decide the appropriate remedy, however, and remanded that case to this court to address the issue. Thiel, 2000 WI 67 at ¶¶ 35-37. We have done so in a decision released on January 24, 2001, Thiel, 2001 WI App 52. We concluded that the rule of statutory construction announced by the supreme court applied retroactively to all detainees under ch. 980 whose direct appeals had not been finalized and who had either asserted in the trial court that the State had failed to prove beyond a reasonable doubt that the individual was within ninety days of release, or, alternatively, who had prominently raised this issue on a direct appeal. Id. at ¶ 19. That retroactive application, we concluded, could be achieved without offending the double jeopardy clause by remand for an evidentiary hearing at which the State would be permitted to attempt to prove beyond a reasonable doubt that the detainee was within ninety days of release. Id. at ¶ 32.

¶ 16. Following our decision in Thiel, 2001 WI App 52, we remand this matter to the trial court for an evidentiary hearing at which the State will have the opportunity to attempt to prove Denman was within ninety days of release.

By the Court. — Order reversed and cause remanded.

       A11 references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Although the very first notice of a trial date was of a jury trial, the record contains no request by either Denman, his attorney, or the State for a jury trial. Neither Denman nor the State clarify this point in their briefs on appeal, and we understand both believe it is not significant to their arguments. We read the colloquy quoted above as inconsistent with the State having made the request and deciding to withdraw it and as consistent with Denman or his counsel having made the request and deciding to withdraw it. We therefore assume either Den-man or his attorney initially requested a jury trial.

         State v. Bernstein, 231 Wis. 2d 392, 605 N.W.2d 555 (Ct. App. 1999), review denied, 233 Wis. 2d 84, 609 N.W.2d 474 (Wis. Jan. 18, 2000) (No. 98-2259), was decided after the initial briefing in this case.

       The trial court's order finding probable cause stated that "any request for a jury trial [must] be made within ten days of this probable cause finding pursuant to sec. 908.05(2) WlS. Stats."

         State v. Livingston, 159 Wis. 2d 561, 569, 464 N.W.2d 839 (1991), held that the acts specified in WlS. STAT. § 972.02(1) that constitute a waiver must be personal acts of the defendants.

       We entered an order putting this appeal on hold pending the supreme court's decision in State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94. After the supreme court released its decision, we then ordered supplemental briefing in this appeal on the issue of the appropriate remedy. We released our decision in State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, after the supplemental briefing in this case was completed.