author: WEDEMEYER, PJ.

text:
    Harry T. Staver, Plaintiff-Appellant, v. Milwaukee County, a Wisconsin County, Defendant-Respondent, Pension Board, Milwaukee County Employees' Retirement System, Defendant.
    Court of Appeals

      No. 2004AP2245.

      Submitted on briefs December 27, 2005.

      Decided February 7, 2006.

    2006 WI App 33
    (Also reported in 712 N.W.2d 387.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of O'Neil, Cannon, Hollman, DeJong, S.C. by Russell C. Brannen, Jr. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of William J. Domina, corporation counsel by Mark A. Grady, principal assistant corporation counsel of Milwaukee.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.
   WEDEMEYER, PJ.

¶ 1. Harry T. Staver appeals from a summary judgment granted in favor of Milwaukee County. Staver claims: (1) the trial court should have struck the County's trial court summary judgment brief because it did not contain record references or citations to legal authority; (2) he is entitled, as a matter of law, to interest on the retroactive pension payment he received; (3) he is entitled, as a matter of law, to a lump-sum refund payment, plus interest, for the health insurance premiums he paid from the time of his retirement until the time it was determined that he was to receive free health insurance; and (4) his action is not barred by the statute of limitations. Because Staver fails to provide any authority for his first claim; because he is not entitled to interest on the pension payment; and because he is not entitled to a lump-sum refund or interest on the health insurance premiums he paid, we affirm.

BACKGROUND

¶ 2. On August 1, 1975, Staver was hired by the County as a Neighborhood Security Aide. This position was funded under a federal government grant known as CETA. On October 1, 1979, he received an emergency appointment to a position in the county civil service system. On February 12, 1980, Staver was given a regular appointment to a position in the county civil service system. This new position was regular county employment and not subject to CETA funding for its continuance, and made Staver eligible to become a member of the Milwaukee County Employees' Retirement System (ERS). At this point, he began to earn pension service credit.

¶ 3. Staver continued to be employed in a county position as he approached his sixty-fifth birthday in 1990. As of December 1, 1990, Staver had accumulated 10.8 years of pension service credit for employment with the County. He also knew that he was entitled to two years of military service credit for his pension eligibility. Sometime before he turned sixty-five years old, he learned of "early retirement service credits" to encourage retirement. Specifically, the County offered three full years of credit to Staver if he retired early. Together, these three numbers would give him fifteen years of pension service credit.

¶ 4. On September 25, 1990, Staver signed his retirement papers. He was then informed by human resources that his "service credits" did not equal fifteen years for the purpose of health insurance, and so he was not entitled to free health insurance. Rather, he would have to pay a monthly premium to maintain his health insurance. The reason for this was that the two-year military credit did not apply to the health insurance credit calculation. In addition, the time he spent as a CETA-funded employee did not count toward pension service credit or health insurance service credit.

¶ 5. On November 17, 1999, the ERS pension board voted to allow pension service credit to persons for time worked at the County in CETA positions. Prior to this vote, no CETA-funded positions were credited as county service time. The pension board decided to grant the credit retroactively for those employees who had already retired.

¶ 6. In March 2000, Staver learned that the pension board had voted to credit all County employees for the time they worked under CETA. On March 13, 2000, Staver received a check for $18,866.91 for the accumulated retroactive pension increase and was advised that his future monthly pension payment would increase by $186.09. He was informed that this was due to the granting of 4.16667 years of service as a CETA-funded employee.

¶ 7. On or about March 27, 2000, the County issued Staver a check for $2,185.09, which represented health insurance premiums Staver had paid since the time the pension board decided to credit the CETA service. He was also notified that because of the additional service credit time, he satisfied the fifteen-year service requirement and would now receive free health insurance through the County.

¶ 8. On April 7, 2002, Staver filed a Notice of Claim for Damages for statutory interest upon the retroactive pension payment and for reimbursement, with interest, for the health insurance premiums he had paid to the County. The County denied the claim.

¶ 9. This lawsuit was filed on August 7, 2002, and amended on January 31, 2003. A second amended complaint was filed on November 13, 2003. On or about February 16, 2004, the parties filed cross-motions seeking summary judgment. A hearing on the motions was held on June 1, 2004.

¶ 10. Staver advised the court that he did not have a claim against the ERS, and it was dismissed from the case. The trial court then granted the County's motion seeking summary judgment. Judgment was entered. Staver now appeals.

DISCUSSION

¶ 11. This case arises from the grant of summary judgment. We review a trial court's decision to grant summary judgment independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The standards pertinent to our analysis are well known and need not be repeated herein. See id. at 314 — 15. We do value any analysis that the trial court has placed in the record. We shall affirm the trial court's decision granting summary judgment if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

A. Motion to Strike Circuit Court Brief.

¶ 12. Staver's first contention is that the trial court erred in failing to strike the County's summary judgment brief filed in the circuit court. He argues that the County failed to provide record references to support its factual assertions and failed to supply sufficient authority for its argument. He also contends that, based on these infirmities, the trial court should have granted summary judgment in his favor. We reject Staver's contention.

¶ 13. Although it is certainly good practice for parties to provide record references for factual assertions, the County's failure to do so in its summary judgment trial court brief does not result in the remedy Staver seeks. First, there is no trial court briefing statutory equivalent to Wis. Stat. Rule 809.19, which requires appellate briefs to contain record references for factual assertions. Second, a trial court that has presided over a case is generally familiar with the facts presented by the parties, and therefore will know whether the factual assertions are contained within the record. Third, the record in this case demonstrates that both parties filed motions seeking summary judgment — in essence, conceding by their motions that there are no material issues of disputed fact. Thus, both parties agreed that this case could be decided on the legal issues via summary judgment. Staver cannot now claim that there were disputed facts or incorrect facts because he is unhappy that the trial court granted judgment against, rather than in favor of, him.

¶ 14. Likewise, a party would be wise to provide the trial court with all the pertinent authority with respect to an issue it advances. Nevertheless, the trial court here, either based on the authority provided by the County or discovered on its own, felt that the law supported judgment against Staver. Thus, we will not reverse the trial court's ruling because Staver contends the County should have provided the trial court with greater legal support for its argument.

B. Pension Interest.

¶ 15. Staver's next argument is that he is entitled to interest on the lump sum pension benefit the County paid after it determined that the years employees spent at CETA-funded positions should be included in the years of service calculation. His argument is that the 1999 determination by the pension board to include the CETA work years toward the pension credit, and to pay retroactively employees who had already retired, constituted a contract modification. Staver continues that this modification created a benefit to which he was entitled and, because the benefit was not paid at the time he was entitled to the money, he should have received interest on the lump-sum payment. We cannot agree with Staver's reasoning.

¶ 16. Staver is correct that, in Wisconsin, interest is allowed to be recovered as an element of damages for breach of contract. See Klug & Smith Co. v. Sommer, 83 Wis. 2d 378, 382, 265 N.W.2d 269 (1978); Laycock v. Parker, 103 Wis. 161, 181, 79 N.W. 327 (1899). However, there was no breach of contract under the undisputed facts and circumstances presented in this case.

¶ 17. "Interest is normally awarded where one party has wrongfully retained use of a second party's money." Sulzer v. Diedrich, 2002 WI App 278, ¶ 18, 258 Wis. 2d 684, 654 N.W.2d 67, aff'd as modified and remanded by 2003 WI 90, 263 Wis. 2d 496, 664 N.W.2d 641. The purpose for awarding interest is to indemnify a claimant for the loss of what the monies due him would presumably have earned if payment had not been delayed. Kluenker v. State Dep't of Transp., 109 Wis. 2d 602, 607, 327 N.W.2d 145 (Ct. App. 1982). Interest can only be recovered on a determinable sum. California Wine Ass'n v. Wisconsin Liquor Co. of Oshkosh, 20 Wis. 2d 110, 132, 121 N.W.2d 308 (1963).

¶ 18. Thus, in order to demonstrate a breach of the contract and a right to interest, Staver must show that he had a legal right to receive the underlying principal payment earlier than he did. He must establish that the monies were due and owing to him at the time he retired. There is simply nothing in the record to establish such propositions.

¶ 19. Staver was not entitled to the increased benefit until the pension board changed its policy with regard to employees who worked in CETA-funded positions. Thus, he had no legal right to the increased pension benefit at the time he retired. He, therefore, was not deprived of a sum certain or the use of money improperly withheld. Staver admits in his second amended complaint that the pension board did not have a plain duty to recognize his CETA service as pensionable service credits at the time he retired. Further, he concedes that when the pension board decided to grant the increased pension benefits, it could have done so prospectively. In that case, Staver would not have been entitled to the lump sum retroactive principal payment. Thus, Staver cannot demonstrate that the increased pension payment was "due and owing" at the time he retired up until the time the pension board changed its policy regarding CETA credits. Based on the foregoing, there was no basis for the trial court to award interest on Staver's increased pension payment, and the trial court did not err in granting summary judgment in favor of the County on this issue.

¶ 20. There is also some dispute in the briefs as to who would be responsible to pay Staver interest on the pension monies — whether it should come from the County or the ERS. Because we have concluded that no interest is owed, it is not necessary for us to address this issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

C. Health Insurance Premiums/Interest.

¶ 21. Staver's next argument is that he is entitled to a lump-sum refund of the premiums he paid to the County for health insurance. In addition, he contends he should be awarded interest on that amount. We are not persuaded.

¶ 22. Whether a County retiree is entitled to free health insurance is governed by county ordinance:

The county shall pay the full monthly cost of providing such coverage to retired members of the county retirement system with fifteen (15) or more years of creditable pension service as a county employe ....

Milwaukee County, Wis., ORdinance § 17.14(7)(h) (March 1998). Related subsection 17.14(7)(i) states:

Retired members of the county retirement system with less than fifteen (15) years of creditable pension service credit may, upon retirement, opt to continue their membership in the county group health benefit program upon payment of the monthly cost.

¶ 23. It is undisputed that at the time Staver retired in 1990, he had only 13.8 years of creditable pension service for the purpose of eligibility for health insurance. Staver, however, points out that the health insurance years of service is based on the creditable pension service as determined by the pension board. He argues, therefore, that when the pension board decided in November 1999 to include CETA years as creditable pension service and to make that determination retroactive, he, in essence, provided unjust enrichment to the County by paying his health insurance premiums. He also argues that based on the pension board's 1999 decision to include CETA service, he had over fifteen years of creditable pension service and thus was entitled to free health coverage.

¶ 24. The pertinent law controlling an unjust enrichment claim requires proof of three elements: (1) a benefit that has been conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of the benefit; and (3) acceptance and retention by the defendant of the benefit, under circumstances such that it would be inequitable to retain the benefit without payment. Lawlis v. Thompson, 137 Wis. 2d 490, 496-97, 405 N.W.2d 317 (1987).

¶ 25. We conclude that a claim for unjust enrichment cannot exist under the undisputed facts and circumstances based on the third element. Staver argues that it would be unfair for the County to retain the sum of health insurance premiums he paid between 1990 and 1999. We disagree. At the time Staver made those payments, he was not entitled to free County-paid health insurance because he did not have fifteen years of service credit. When the pension board voted to change how it interpreted CETA time in November 1999, Staver became eligible for free County-paid health insurance. As soon as it was determined that he qualified for the benefit, it was provided.

¶ 26. In addition, although the pension board decided to provide retroactive lump-sum pension payments, it is without authority to require the same retroactive lump-sum payouts for health premiums. Staver argues, nevertheless, that because the County determined health insurance based on years of creditable pension service, that when the pension board credited the CETA time retroactively, the County, in turn, should have done the same. We cannot agree.

¶ 27. Both sides agree that the ERS does not have jurisdiction to determine eligibility for health insurance benefits, as that is a matter vested with the County. The reason for this is that the health insurance benefit is not found in any of the ordinances over which the pension board is given authority. Thus, the only constraints on the County in administering this benefit are those constraints found in Chapter 17 of the ordinances. Nothing in that chapter required the County, for purposes of health plan coverage, to give retroactive effect to additional service granted to one who has already retired.

¶ 28. There is no law or ordinance requiring the County to give retroactive effect to the pension board's changed interpretation of service credit for health plan purposes. The ordinances controlling this issue require that the County provide free health plan coverage to members who retire with sufficient credits. The County complied with these ordinances by giving Staver county-paid health coverage as soon as he was recognized as having sufficient credit. Moreover, although the health coverage determination is based on the pension credit years of service assessment at the time of retirement, there are factors that create differences in the calculation for pension payments verses health insurance. One such factor was present here — military service credit. Staver was afforded two years credit for his military service for the purposes of calculating his years of service for pension payment. This credit afforded him more than fifteen years for pension payments. However, the County does not include the military service credit for purposes of assessing whether an employee has fifteen years of service for health insurance.

¶ 29. Retroactivity determinations are another factor treated differently. The pension board determined to make a retroactive pension payment based on the change, and the County determined that there was no authority to issue a retroactive health insurance refund based on the change.

¶ 30. Based on the foregoing, we conclude that the trial court did not err in granting summary judgment in favor of the County. There was no basis to order the County to refund the health insurance premiums Staver made prior to the time that the service years credit interpretation was changed which, in turn, made him eligible for free health insurance. Because we have concluded that the County was not required to give a refund to Staver for the health insurance premiums paid, his related issue requesting interest on the refund also must be rejected. If there is no underlying payment due, there can be no interest owed.

jD. Statute of Limitations.

¶ 31. Staver also argues that his claim is not barred by the statute of limitations. The County responds that, if Staver has a claim, the six-year statute of limitations allows him to recover only for payments of health insurance premiums he made within the six years preceding the commencement of this suit.

¶ 32. Because we have decided that Staver does not have a meritorious claim for the refund of health insurance premiums, it is not necessary for us to address the statute of limitations issue. See Gross, 227 Wis. at 300.

By the Court. — Judgment affirmed.

       Based on our disposition, it is not necessary for us to reach the statute of limitations issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issues need to be addressed).

       CETA is the acronym for the Comprehensive Employment and Training Act of 1974.

       Staver also contends that he is entitled to receive interest on the delayed pension payment based on ERISA cases such as Fotta v. Trustees of United Mine Workers of America, 165 F.3d 209 (3d Cir. 1998). The factual circumstances in Fotta are distinguishable from the factual circumstances in Staver's case. Fotta received a delayed lump-sum disability insurance payment after he successfully established, through litigation, that his disability was work-related. Id. at 210-11. In Staver's case, the pension board, on its own, changed the way it interpreted an ordinance, such that it was going to include CETA time in service credits. The pension board's change in interpretation resulted in the lump-sum payment. The pension board's decision to make the lump-sum payment to those employees who had already retired was more akin to a gift than an amount of money that was wrongfully withheld.


source: Caselaw Access Project

author: CURLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. John C. Brown, Defendant-Appellant.

    Court of Appeals

      No. 2005AP584-CR.

      Submitted on briefs December 6, 2005.

      Decided February 7, 2006.

    2006 WI App 44
    (Also reported in 712 N.W.2d 899.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Mark A. Neuser, assistant attorney general.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review granted 5-9-06.

   CURLEY, J.

¶ 1. John C. Brown appeals from the order reconfining him to the Wisconsin State Prisons for three years following the revocation of his extended supervision and from the order denying his postconviction motion seeking reconsideration of his reconfinement sentence. Brown contends that the trial court erroneously exercised its discretion when it reconfined him for three years. Brown contends that the trial court failed to give "due weight deference" to the Department of Corrections' (Department) recommendation on the amount of time to which he should be sentenced following the revocation of his extended supervision. He also argues that the trial court erroneously exercised its discretion in not fully explaining why it denied his postconviction motion seeking to modify his sentence. Because the trial court need not give due weight deference to the Department's recommendation, as the Department's recommendation is one of many factors the trial court can consider when determining the period of reconfinement, and because the trial court properly exercised its discretion when it denied the postconviction motion, we affirm.

I. Background.

¶ 2. On October 6, 2001, Brown and two others were charged with armed robbery as a party to a crime. In January 2002, Brown pled guilty to the amended charge of theft from person as a party to a crime, contrary to Wis. Stat. §§ 943.20(l)(a) & (3)(d)(2) and 939.05 (1999-2000). After a presentence investigation was conducted, Brown was sentenced to one year, seven months of initial confinement, and six years, five months of extended supervision.

¶ 3. Brown served his term of confinement and was released on May 13, 2003. In August 2003, while on extended supervision, he was arrested and charged with possession with intent to deliver crack cocaine. Subsequently, the Department determined that Brown violated the terms of his extended supervision, Brown waived his right to a revocation hearing, and the Department revoked Brown's extended supervision. As a result, a reconfinement hearing was scheduled in the trial court. The Department, as is required by statute, sent the trial court a report including its recommendation that Brown be reconfined for one year, ten months and thirty days.

¶ 4. At the hearing, the trial court rejected the Department's recommendation, and commented that the Department's recommendation was "ludicrously low." Brown was sentenced to three years in prison.

¶ 5. Brown challenged the circuit court's recon-finement order by filing a motion seeking modification of his sentence pursuant to Wis. Stat. Rule 809.30. In his postconviction motion, he supplied the court with a report which explained the Department's revocation procedures and provided the rationale behind the recommendation. The trial court refused to consider the merits of the motion, believing that, under Wis. Stat. § 302.113(9), Brown had no appellate rights.

¶ 6. After the release of State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452, Brown filed a motion for summary reversal with this court. It was granted. The case was then remanded to the trial court for consideration of the motion on the merits, and the trial court denied his postconviction motion a second time, stating that the reconfinement for a period of three years was "based on the commission of another felony offense shortly after his release from prison." This appeal follows.

II. Analysis.

¶ 7. Brown contends that the trial court erroneously exercised its discretion at the reconfinement hearing. He submits that because the Department "oversees extended supervision and has been involved in custody, in supervision, and in revocations for years," the Department "has expertise in the area." As a result, Brown claims that the trial court should have given the Department's recommendation "due weight deference." He also claims that the trial court erroneously exercised its discretion when it denied his postconviction motion without an adequate explanation. We disagree with both contentions.

¶ 8. The procedure to be followed after a person's extended supervision is revoked is spelled out in Wis. Stat. § 302.113(9)(am) & (at).

(am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The court order returning a person to prison under this paragraph shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.
(at) When a person is returned to court under par. (am) after revocation of extended supervision, the reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison. The recommended time period may not exceed the time remaining on the bifurcated sentence, as calculated under par. (am).

The reviewing authority in this instance was the Department of Corrections. Wisconsin Stat. § 302.113(9)(ag), states: "In this subsection 'reviewing authority' means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the person on extended supervision waives a hearing." Id.

¶ 9. As referenced, the holding in Swiams established that a hearing to determine the length of recon-finement is a "sentencing." 277 Wis. 2d 400, ¶ 23. Sentencing is, and always has been, left to the reasonable discretion of the trial court. State v. Gallion, 2004 WI 42, ¶¶ 17-18, 270 Wis. 2d 535, 678 N.W.2d 197. We review a sentence imposed by a circuit court to determine whether the court erroneously exercised its discretion. State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). There is a " 'strong public policy against interference with the sentencing discretion of the trial court, and sentences are afforded the presumption that the trial court acted reasonably.'" Id. (citation omitted).

¶ 10. In Swiams, the disputed issue was whether an offender was entitled to appeal the reconfinement order pursuant to Wis. Stat. Rule 809.30. We determined that such an appellate right existed, and, in doing so, we concluded that the sentencing court is required to provide an explanation for the sentence imposed because "every person deprived of his or her liberty is entitled" to such an explanation. Swiams, 277 Wis. 2d 400, ¶ 23. "[H]ow much explanation is actually required 'will vary from case to case.'" State v. Jones, 2005 WI App 259, ¶ 9, 288 Wis.2d 475, 707 N.W.2d 876 (quoting Gallion, 270 Wis. 2d 535, ¶ 39). "The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review." Id. The "need for meaningful appellate review of a trial court's decision to take away a person's liberty must be our polestar." Swiams, 277 Wis. 2d 400, ¶ 18.

A. The trial court need not give "due weight deference" to the Department's recommendation.

¶ 11. We first address Brown's argument that the trial court was obligated to give the department's recommendation "due weight deference." Citing Brown v. LIRC, 2003 WI 142, 267 Wis. 2d 31, 671 N.W.2d 279, Brown argues that:

Under the principles of administrative law, the only time[] a court gives no weight to an agency's conclusions is when the issue is one of first impression or if the agency's position provides no real guidance. Even then, however, a court is to benefit from the analyses of the agency. A court which does not consider such analyses cannot be said to benefit from them.
When an agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than a court to interpret and apply the law, courts are to give due deference. "Under the due weight standard, 'a court need not defer to an agency's interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable.'" Even then, however, the court may not simply disregard the agency's approach.

(Citations omitted.) On the strength of this language, Brown concludes that the Department's recommendation is deserving of due weight deference:

The Department of Corrections, which oversees extended supervision and has been involved in custody, in supervision, and in revocations for years, has expertise in the area. The Department knows what programs and what treatments are available within the prison system, what sentence structure is necessary to be eligible for those programs, and which programs are most likely to be effective for which prisoners facing revocation. The Department of Corrections guidelines were developed with these considerations in mind. The trial court therefore should give the Department guidelines and the ALJ recommendations due weight deference. To do so, the court must consider them and make clear why the court is not following them.

We disagree.

¶ 12. We first note that Brown has not provided us with a single criminal case that requires a trial court to give due deference to an administrative agency's sentencing recommendation when conducting an initial sentencing. Indeed, in commenting on the duty of the Department to prepare presentence investigation reports pursuant to Wis. Stat. § 972.15(1), we have repeatedly stated that the trial court is not hound by the sentence recommended in the presentence investigation report. See State v. Bizzle, 222 Wis. 2d 100, 105-06 n.2, 585 N.W.2d 899 (Ct. App. 1998). Extrapolating from this principle, we can find no support for requiring courts to give the Department's recommendations in revocation of extended supervision cases "due weight deference." Trial courts have been given great discretion in fashioning sentences, and requiring them to give due weight deference to the Department's recommendation would defeat this tenet.

¶ 13. Logic also supports our belief that the trial court need not give due weight deference to an agency's sentencing recommendations following the revocation of extended supervision. It is difficult to conceive why the legislature would refuse to bind the trial court to follow a Department's recommendation at an initial sentencing hearing, but require due deference to a Department recommendation after revocation of extended supervision. This is particularly so after considering the history of the Department in sentencing decisions. The legislature, in passing the Truth-in-Sentencing bills, removed the sentencing decision-making power of administrative agencies in parole and probation revocations by eliminating parole and probation and placed the decision-making authority with the trial court in extended supervision revocations. As a consequence, it would appear that the legislature was moving the important function of sentencing away from an agency's control. Thus, we are satisfied that while the recommendation may be helpful and should be considered, the trial court owes no "due weight deference" to the Department's sentencing recommendation submitted to the trial court after the revocation of an offender's extended supervision.

B. The trial court properly exercised its discretion in denying the postconviction motion.

¶ 14. We next address Brown's complaint that the trial court erroneously exercised its discretion in denying his postconviction motion seeking to modify the reconfinement order. As noted, the trial court is obligated to explain its reconfinement sentence. Here, at the reconfinement hearing, the trial court justified its reconfinement sentence of three years when it stated:

You were warned when you were released from prison that if you commit another offense you'll go back to prison, and you committed it, and it's a serious crime here. It's selling crack cocaine, and I understand you have a pending case with [another judge].
The Department looks at this grid and comes up with these, I think, ludicrously low recommendations, and I think this is too low. The time available is six years four months and they're recommending I believe one year and ten months, and I think that's insufficient to send a message here.
I think obviously you have a cocaine problem that's going to be with you for years. It's going to be hard for you to beat it, and I think you're a risk to the community to be out in one year and ten months.

¶ 15. The trial court met its obligation. The trial court clearly believed that the Department's recommendation was too low, that Brown had a drug problem, and that he posed a risk to society if he were to be released after such a short period of time, especially since he was arrested on a felony drug charge approximately three months after his release.

¶ 16. Brown claims that the trial court erroneously exercised its discretion because it failed to follow the factors listed in State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974), or Gallion, 270 Wis. 2d 535, in its reconfinement decision. We do not find either case dispositive. Plotkin addressed the factors that an agency should consider when contemplating a revocation of probation. It did not address the question of what sentence a court should find appropriate after an offender's probation has been revoked. We also note that the Gallion case was decided after the reconfinement hearing was held, and Gallion states that it applies only to future cases. 270 Wis. 2d 535, ¶¶ 8, 76. Consequently, it has no application to this case.

¶ 17. Moreover, we note that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors. In State v. Wegner, 2000 WI App 231, 239 Wis. 2d 96, 619 N.W.2d 289, where resentencing occurred following the revocation of Wegner’s parole, we stated that "[w]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first." Id., ¶ 7. Our stated goal in this regard was to prevent "mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation." Id., ¶ 9 (footnote omitted). Thus, resentencing does not require an explicit delineation of the McCleary sentencing factors, as long as the court considered them earlier. See Jones, 707 N.W.2d 876, ¶ 9. Brown has not contended that his initial sentencing hearing was deficient in any way, and we will assume that the trial court touched on all the appropriate factors when deciding Brown's original sentence. As a result, we are satisfied that the trial court fulfilled its obligation at the recon-finement hearing. So, too, we are satisfied that the trial court's written order denying Brown's postconviction motion was a proper exercise of discretion. As the trial court explained:

The agent recommended a period of one year and ten months out of the six years and four months available. The court did not agree with that recommendation and reconfined the defendant for three years based on the commission of another felony offense shortly after his release from prison.

¶ 18. The trial court gave sufficient reasons for its reconfinement decision and its reasoning was sound. A trial court is not required to make detailed findings in denying a motion for reconsideration. See Wis. Stat. § 805.17(3). Consequently, we affirm.

By the Court. — Orders affirmed.

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

       Although the Department's recommendation was one year, ten months and thirty days, the trial court later incorrectly referred to the recommendation as one year and ten months, including in its written order denying Brown's post-conviction motion. These incorrect references to the recommendation do not, however, influence our decision on appeal.

       In any event, State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, did "not make any momentous changes" to Wisconsin sentencing jurisprudence. State v. Stenzel, 2004 WI App 181, ¶ 9, 276 Wis. 2d 224, 688 N.W.2d 20.


author: HOOVER, EJ.

text:
    State of Wisconsin, Plaintiff-Appellant, v. David Allen Bruski, Defendant-Respondent.

    Court of Appeals

      No. 2005AP1516-CR.

      Submitted on briefs January 9, 2006.

      Decided February 7, 2006.

    2006 WI App 53
    (Also reported in 711 N.W.2d 679.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Margaret A. Maroney, Assistant State Public Defender, Madison.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 4-10-06.

   HOOVER, EJ.

¶ 1. The State appeals an order granting David Allen Bruski's motion to suppress physical evidence and an order denying its motion for reconsideration. We agree with the State that Bruski lacked standing to assert a Fourth Amendment claim and we reverse.

Background

¶ 2. The City of Superior Police Department responded to a suspicious person and vehicle complaint during the morning of March 3, 2005. At about 8 a.m., officer James Olson made contact with a passed-out Bruski, the vehicle's occupant. The car was parked behind a building on John Street. Olson had to repeatedly shake Bruski to wake him. Olson reported Bruski then continued to "nod off' and had difficulty answering his questions. Bruski said he was waiting for a friend, and that he had no idea how he had gotten to that location.

¶ 3. Olson identified the vehicle and discovered it was registered to Margaret Smith. The police department's communications center contacted Smith and advised her of her vehicle's status. Smith informed the center that her daughter Jessica was supposed to have the car and might have let a friend drive it.

¶ 4. Smith contacted the police at about 10:20 a.m. and indicated she was concerned about her daughter and her car. She asked if an officer would escort her to recover the vehicle. Olson met her at the station, then took her to the John Street location where Bruski and the vehicle were still parked. Olson had Bruski step out of the car. Smith said she had never met nor seen Bruski before and that her daughter had never mentioned his name.

¶ 5. Olson informed Bruski that Olson and officer Gerald Beauchamp were there to help Smith recover her car. Olson asked Bruski if he had the keys, but Bruski claimed he did not. Bruski later indicated he knew Smith's daughter hut could only give her first name.

¶ 6. When Bruski stated he had no keys, Beau-champ told Smith he would look for them in the car. At no point did Smith or Bruski object to Beauchamp's search of the vehicle. Beauchamp encountered a hard "makeup travel case" on the floor of the front passenger seat. Smith later stated that it was not hers. Opening it, Beauchamp discovered drug paraphernalia and what appeared to be marijuana. Olson arrested Bruski, then searched him, discovering methamphetamine and the car keys.

¶ 7. Bruski was charged with possession of methamphetamine, drug paraphernalia, and THC. He filed a motion to suppress the evidence, arguing police had searched his closed container without probable cause or a warrant. He argued he had a reasonable expectation of privacy in his personal effects and in the vehicle because he had possession of it at the time.

¶ 8. The State responded that Bruski had no reasonable expectation of privacy because he was in someone else's vehicle and, accordingly, he had no standing to raise a Fourth Amendment challenge. The State also argued that Smith had at least given implied consent to search the car's interior.

¶ 9. The court determined Smith did not give consent to search the interior, nor had anyone given consent to search the travel case. Regarding standing, the court held Bruski

had a reasonable right of privacy with respect to his personal belongings inside the vehicle, including his travel bag [or case] located on the floor of the front seat. The evidence shows that defendant did not give consent for the bag to be searched nor did the officers request such consent or even inquire as to whether the bag belonged to him or the vehicle owner before searching it. Under these circumstances, the defendant retained his Fourth amendment rights regarding his personal possessions, including his travel bag, and he was still entitled to a reasonable expectation of privacy with respect to the same.

¶ 10. For the reasons that follow, we conclude the court made a legal error. Bruski has no standing to raise a Fourth Amendment challenge.

Discussion

¶ 11. We use a two-step standard of review for constitutional search and seizure inquiries. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891. In reviewing a motion to suppress, we will uphold the circuit court's findings of evidentiary or historical facts unless clearly erroneous, but we evaluate those facts against the constitutional standard de novo. Id.

¶ 12. When we assess a defendant's standing to challenge a search under the Fourth Amendment, "the critical inquiry is 'whether the person... has a legitimate expectation of privacy in the invaded place.'" State v. Trecroci, 2001 WI App 126, ¶ 26, 246 Wis. 2d 261, 630 N.W.2d 555 (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

¶ 13. The defendant has the burden of establishing a reasonable expectation of privacy by a preponderance of evidence. Trecroci, 246 Wis. 2d 261, ¶ 35. Whether a person has a reasonable expectation of privacy depends on two things: whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized, and whether society will recognize such an expectation of privacy as reasonable. Id.

¶ 14. The second prong is, however, an objective test, that relies on six factors:

1. Whether the person had a property interest in the premises;
2. Whether the person was legitimately on the premises;
3. Whether the person had complete dominion and control and the right to exclude others;
4. Whether the person took precautions customarily taken by those seeking privacy;
5. Whether the person put the property to some private use; and
6. Whether the claim of privacy is consistent with historical notions of privacy.

Id., ¶ 36 (citation omitted).

¶ 15. Bruski has failed to show that he had an objectively reasonable expectation of privacy in the car. The evidence only shows that he was found in a vehicle he did not own. He offered no evidence as to why he was in the vehicle, or that he had authorization to be in the vehicle. Bruski could not even fully identify the person from whom he had allegedly obtained the vehicle, and he certainly did not have the registered owner's permission to use the car. See United States v. Sanchez, 943 F.2d 110, 113-14 (1st Cir. 1991).

¶ 16. Indeed, Bruski offers no evidence under the Trecroci factors to show he had any objective expectation of privacy in the vehicle. The closest argument he makes is that he was taking "precautions customarily taken by those seeking privacy" because he was parked off the street and behind a building. This argument rings hollow, because if Bruski could not recall how he arrived on John Street, it is unlikely he would recall why he parked there. He also contends he demonstrated a subjective expectation of privacy because the case was placed on the floor, not the seat, and the case was not transparent. This argument is undermined by Bruski's failure to object or attempt to prevent Beauchamp from searching the vehicle after the officer stated he was going to look for the keys. Cf. Matejka, 241 Wis. 2d 52, ¶ 37 (defendant, aware police were about to search car's interior where she left her jacket containing marijuana, did not protest search). In any event, Bruski's subjective expectations are only part of the equation. Ultimately, he simply fails to carry his burden of proof.

¶ 17. Bruski also fails to show any reasonable expectation of privacy in his travel case. While both he and the trial court stressed his ownership of the case, this is insufficient given that the case was inside the car. The United States Supreme Court has "emphatically rejected the notion that 'arcane' concepts of property law" govern Fourth Amendment claims. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). That is, possession alone will not confer standing. State v. Curbello-Rodriguez, 119 Wis. 2d 414, 424-25, 351 N.W.2d 758 (Ct. App. 1984).

¶ 18. "Whether a person has an expectation of privacy in a container that is searched is not determined by his subjective beliefs." United States v. Hargrove, 647 F.2d 411, 412 (4th Cir. 1981). The expectation must be objectively reasonable. Id. "A person who cannot assert a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for his personal effects, whether or not they are enclosed in some sort of a container ...." Id. (citing Rakas, 439 U.S. at 151-52). "To hold otherwise would mean that the automobile... was somehow transformed into a place of sanctuary ... free from the eyes of the law. We find it impossible to accept this proposition." People v. Henenberg, 302 N.E.2d 27, 31 (Ill. 1973). Cases describing the kind of interest that will afford standing to challenge the legality of a search in terms of a possessory interest in the seized goods do not involve property unlawfully or illegally placed upon premises belonging to another. Id.

¶ 19. Bruski cannot show any reasonable expectation of privacy in the vehicle because he neither owned it nor has he shown he had permission to use it. Without a reasonable expectation of privacy in the vehicle, he has no expectation of privacy relative to his travel case as a matter of law, even though he owned the case. Accordingly, Bruski has no standing to raise a Fourth Amendment challenge to the search of the case and the seizure of evidence discovered therein.

By the Court. — Orders reversed.

       Accordingly, we do not reach the question whether Smith implicitly consented to the search of her vehicle's interior. See Gross v. Hoffman, 224 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Wayne Delaney, Defendant-Appellant.
    Court of Appeals

      No. 2004AP3131-CR.

      Submitted on briefs November 29, 2005.

      Decided February 8, 2006.

    2006 WI App 37
    (Also reported in 712 N.W.2d 368.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Wayne R. Delaney, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maura FJ Whelan, assistant attorney general.

      Before Snyder, EJ., Brown and Nettesheim, JJ.
   NETTESHEIM, J.

¶ 1. Wayne Delaney appeals pro se from an order denying his motion for sentence modification. He raises an argument that we are seeing with increasing frequency of late: that a 1994 letter from then Wisconsin Governor Tommy G. Thompson to the Department of Corrections (DOC) regarding the mandatory release of violent offenders negatively affected his parole eligibility and therefore constitutes a new factor requiring resentencing. We agree with the trial court that Delaney did not clearly and convincingly establish that the Thompson letter constitutes a new factor. We affirm the order.

BACKGROUND

¶ 2. The facts are undisputed. Delaney was convicted in 1994 after pleading guilty to one count of armed robbery, two counts of sexual assault with a dangerous weapon and two counts of false imprisonment with a dangerous weapon, all as party to a crime. The charges derived from an incident in which Delaney —drunk, stoned, and high on cocaine — and an acquaintance broke into a motel room and terrorized the occupants over a period of several hours.

¶ 3. On June 10, 1994, Judge Dennis J. Flynn sentenced Delaney to three consecutive ten-year prison terms on the armed robbery and sexual assault convictions, and imposed and stayed consecutive eighteen-month sentences on the two false imprisonment convictions.

¶ 4. Delaney's first discretionary parole hearing was in 2001. He was not released, and further parole consideration was deferred until August 2005. Meanwhile, in October 2004, Delaney moved pro se for sentence modification, contending that a change in parole board policy constituted a "new factor" entitling him to resentencing. In support, Delaney relied on an April 28, 1994 letter from then Governor Thompson to then DOC Secretary Michael J. Sullivan instructing Sullivan and the DOC to "pursue any and all available legal avenues to block the release of violent offenders who have reached their mandatory release date" so as to keep prisoners classified as violent locked up "as long as possible."

¶ 5. Delaney argued that the Thompson letter frustrated the purpose of his sentence because Judge Flynn had fashioned a sentence with the expectation that Delaney would be parole eligible after serving 25% of the sentence under then-existing law. Delaney also contended that the Thompson letter in effect lengthened his sentence and therefore constituted an ex post facto violation.

¶ 6. Judge Gerald E Ptacek conducted a telephonic hearing on Delaney's motion on November 11, 2004. Judge Ptacek determined that the Thompson letter was not a new factor under the law and that, even if it was, the parole board's discretionary decision did not frustrate the sentence imposed by Judge Flynn. Therefore, Judge Ptacek denied Delaney's motion, and Delaney appeals.

DISCUSSION

A. Law of New Factors

¶ 7. To have his sentence modified, Delaney must overcome two hurdles. First, he must demonstrate that a new factor exists. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). If so, he next must demonstrate that the new factor warrants sentence modification. Id. Whether a fact or set of facts constitutes a new factor is a question of law this court decides without deference to the circuit court's determination. Id. Whether the new factor warrants sentence modification, however, is a matter we entrust to the circuit court's discretion. Id.

¶ 8. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. Id. The effect of the "new factor" must frustrate the purpose of the original sentencing. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989).

¶ 9. The existence of a new factor must be shown by clear and convincing evidence. Franklin, 148 Wis. 2d at 8-9. "In order for a change in parole policy to constitute a new factor, parole policy must have been a relevant factor in the original sentencing. It is not a relevant factor unless the court expressly relies on parole eligibility." Id. at 15.

B. New Factor Law Applied to This Case

¶ 10. We agree with Judge Ptacek that Delaney has not clearly and convincingly shown that the Thompson letter constitutes a new factor, or, even if it does, that it warrants a sentence modification. We first observe that the Thompson letter was issued before Delaney's sentencing before Judge Flynn, which raises the prospect that the judge was aware of the letter. However, the appellate record is silent on this point, so we will accept Delaney's premise that Judge Flynn was not aware of the letter.

¶ 11. Delaney was sentenced in 1994 under Wisconsin's system of indeterminate sentencing. Under that system, a convicted defendant generally became parole eligible after serving 25% of the sentence. Wis. Stat. § 304.06(l)(b) (1993-94); State v. Crochiere, 2004 WI 78, ¶ 6, 273 Wis. 2d 57, 681 N.W.2d 524. Delaney contends that Judge Flynn was aware of that parole policy and so must have sentenced him with that in mind — in essence, "oversentencing" him so that 25%, rather than the full term, actually represents the sentence that Judge Flynn intended.

¶ 12. We decline to join Delaney's speculation as to Judge Flynn's thoughts. Instead, we limit our review to the judge's actual words. The June 10,1994 sentencing transcript reveals that Judge Flynn neither expressly relied on nor discussed parole policy. Nor did the judge address the April 28, 1994 Thompson letter, the parole board's policy generally, or Delaney's prospects for parole in particular. The only time Judge Flynn uttered the word "parole" was when he imposed the sentences on the two false imprisonment convictions:

[Ilt's the order of the Court that these last two sentences, one and a half years on Count 5, one and a half on Count 6, that they be stayed. In lieu thereof you are to be placed on five years of consecutive probation so once you're released from prison and from parole you'll then be on five years probation.

¶ 13. The sentencing transcript reveals that Judge Flynn reviewed Delaney's prior record, which included disorderly conduct and second-degree sexual assault, his substantial drug abuse problem, the lack of success with past treatment efforts, and the "[aggravated . . . very, very serious nature" of the crimes for which Delaney was being sentenced. The judge also considered the impact of the crimes on the victims and the community, the need to protect the public, Delaney's need for rehabilitation, and all parties' recommendations for prison. Although Delaney faced up to twenty years' imprisonment on each of three counts (party to armed robbery, and two counts of party to first-degree sexual assault), he was sentenced to three consecutive ten-year terms. Judge Flynn in no way suggested that Delaney would be paroled after serving only one-fourth of the time. To the contrary, the record demonstrates a sentence carefully fashioned after an express consideration of the relevant factors, and Delaney's parole eligibility was not one of those factors.

¶ 14. Delaney nonetheless insists that Judge Flynn must have sentenced him with an eye toward a certain parole date. In support, he looks to State v. Borrell, 167 Wis. 2d 749, 767, 482 N.W.2d 883 (1992), which called the date of parole eligibility "an essential and integral part of the court's sentencing decision." This is not a Borrell case. Borrell involved a separation of powers challenge to a statute not at issue here. The challenge was brought by an inmate who was sentenced in 1988 to life imprisonment with no parole eligibility until 2025, with a consecutive twenty-year term on another charge. Id. at 760. The supreme court held that it was within the sentencing court's authority to set the defendant's parole eligibility date later than the statutory minimum because of the legislatively granted discretion to fashion a sentence based on the nature of the crime, the public's need for protection and the rehabilitative needs of the convicted defendant. Id. at 768-69. Borrell describes the interplay of the three branches of government in Wisconsin's system of sentencing: the legislature prescribes the penalty and manner of its enforcement, the courts impose the penalty, and the executive branch grants paroles and pardons. Id. at 767. Borrell emphasizes that courts have discretion in fashioning sentences, but not in making actual parole decisions. See id. at 770. Moreover, Borrell plainly states that the legislatively provided possibility of parole creates "no more than a mere hope that the benefit will be obtained." Id. at 771 (citation omitted).

¶ 15. Delaney next attempts to tie the Thompson letter to the passage of 42 U.S.C. § 13701, et. seq., the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA). VCCLEA made available federal money for construction or improvement of correctional facilities to states that implemented truth-in-sentencing laws. Delaney implies that Governor Thompson, influenced by the prospect of federal grants, acted to limit early release for violent offenders. Delaney argues that this frustrated Judge Flynn's "explicit expectation that the defendant would be considered for early parole-release on the basis of institution behavior ...However, VCCLEA was not enacted until September 13,1994, three months after the Thompson letter was issued and after Delaney was sentenced. Delaney offers no evidence or persuasive argument to show how a law passed after his sentencing might have influenced the sentencing judge.

¶ 16. Delaney also fails to show what impact the Thompson letter might have had on his discretionary parole eligibility. The letter refers only to Wisconsin's mandatory release law, not parole eligibility. See Wis. Stat. § 302.11(1) (establishing a mandatory release date at two-thirds of the sentence). The law referred to in the letter was amended by 1993 Wis. Act 194, and changed the release date from mandatory to presumptively mandatory for an inmate serving a sentence for a serious felony committed on or after April 21,1994. On its face, this cannot apply to Delaney, who committed his crimes in November 1993. Furthermore, when Delaney sought to have his sentence modified, he had not yet served two-thirds of his sentence and thus was not eligible for mandatory release. Until 2014, Delaney will be eligible only for discretionary parole review. The Thompson letter thus does not apply to his situation.

¶ 17. Delaney accords the Thompson letter more weight than it is due. For example, he credits the letter with effectively abolishing parole for all "old release law" violent offenders, and asks rhetorically whether simple coincidence can account for the repeal two years later of Wis. Stat. § 304.06(lr) (1993-94). However, Delaney ignores the fact that the letter, although written by the governor, simply did not carry the force of law. To the contrary, the letter was addressed to the DOC secretary, who has no role in making parole decisions, instead of to the parole commission, the entity that does. See Wis. Stat. §§ 301.03(3), 304.01 and 304.06. The parole commission is attached to the DOC, but is not subject to the control of the DOC secretary. See Wis. Stat. §§ 15.145(1), 15.03.

¶ 18. Furthermore, the Thompson letter did not purport to change the law. Instead, it was conditioned upon compliance with existing law, plainly directing the DOC to pursue "all available legal avenues... to keep violent offenders in prison as long as possible under the law." We agree with the State that the letter urged a more aggressive use of, but not a change in, existing law.

¶ 19. Delaney next recites statistics showing that 4000 prisoners served their sentences to mandatory release from 2000 to 2001, as compared to just 600 from 1992 to 1993. Assuming these statistics are accurate and further assuming they reflect a stricter stance by the parole board when considering parole, it remains for the reasons stated above that Delaney has failed to link this "evidence" under the law of new factors to the Thompson letter. See Franklin, 148 Wis. 2d at 11. Moreover, other factors might also explain the statistics cited by Delaney — a different makeup of the prison population, commission of more serious crimes, or greater use of probation for less serious offenses. See id.

¶ 20. Delaney's "Risk Rating Manual" argument likewise falls flat. He contends that there "still roams ... the halls of the Parole Commission" the "self-made rule" that length of sentence imposed "has three times the influence of all other factors combined in determining the length of time actually served." This contention goes nowhere for two reasons: (1) the argument is based on a 1982 document, which literally removes it from the realm of "new" factor; and (2) the argument already has been considered and rejected by our supreme court. See id. at 11-12.

¶ 21. In summary, Delaney has failed to establish that the Thompson letter was a new factor. The letter had nothing to do with parole and, even if we were to assume that it did, the prospect of parole played no demonstrated role in Judge Flynn's sentencing of Delaney. As such, Judge Ptacek correctly rejected Delaney's argument for sentence modification under the law of new factors.

C. Alleged Ex Post Facto Violation

¶ 22. Finally, Delaney argues that the Thompson letter and the alleged resulting change in parole policy offends the ex post facto clause because it retroactively and substantially decreased his parole eligibility, in effect increasing his punishment.

¶ 23. An ex post facto law includes any law which was passed after the commission of the offense for which the party is being tried. State ex rel. Britt v. Gamble, 2002 WI App 238, ¶ 23, 257 Wis. 2d 689, 653 N.W.2d 143 (citation omitted). When determining whether there was an ex post facto violation, we look to see whether the application of the new law violates one or more of the recognized protections offered by the ex post facto clause. Id. Specifically, we determine whether the application of the new law: (1) criminalizes conduct that was innocent when committed, (2) increases the penalty for conduct after its commission, or (3) removes a defense that was available at the time the act was committed. Id.

¶ 24. We summarily reject Delaney's ex post facto argument. We have already explained that the Thompson letter did not have the force of law and otherwise did not constitute or produce a change in parole policy. Thus, contrary to Delaney's logic, his sentence was not functionally lengthened. Delaney was sentenced to three consecutive ten-year sentences with the prospect of discretionary parole consideration. That remains unchanged to this day. As a result, Delaney has failed to establish an ex post facto violation. See id., ¶ 24.

CONCLUSION

¶ 25. Delaney has not demonstrated the existence of a new factor warranting a modification of his sentence. None of his arguments persuades us that the Thompson letter led to a change in parole policy such that the intent of the original sentence was frustrated. Finally, Delaney's thirty-year sentence has not been extended after the fact so as to offend the ex post facto clause. We affirm the order denying Delaney's motion for sentence modification.

By the Court. — Order affirmed.

       Delaney, seventeen at the time of the crimes, was waived into adult court.

       The indeterminate sentencing structure was dramatically altered through two truth-in-sentencing acts, 1997 Wis. Act 283 and 2001 Wis. Act 109, effective on December 31, 1999, and February 1, 2003, respectively. State v. Crochiere, 2004 WI 78, ¶ 5, 273 Wis. 2d 57, 681 N.W.2d 524.

       Wisconsin Stat. § 304.06(l)(b) (1993-94) provided that "the parole commission may parole an inmate of the Wisconsin state prisons ... when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater." That portion of the statute remains essentially unchanged in the current version.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 304.06(lr) (1993-94) provided in relevant part that the parole commission "shall grant release on parole unless there are overriding considerations not to do so," if the inmate is both eligible under sub. (1) and meets one of two education-related criteria.


author: BROWN, J.

text:
    Andrea Driver, Plaintiff-Appellant, v. Housing Authority of Racine County, Defendant-Respondent. [Case No. 2005AP410.] Dorothy Bizzle, Plaintiff-Appellant, v. Housing Authority of Racine County, Defendant-Respondent. [Case No. 2005AP411.]
    Court of Appeals

      Nos. 2005AP410, 2005AP411.

      Oral argument January 4, 2006.

      Decided February 8, 2006.

    2006 WI App 42
    (Also reported in 713 N.W.2d 670.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gai A. Lorenzen and Jeffery R. Meyer of Legal Action of Wisconsin, Inc., of Racine, and Melissa A. Frost of Leece & Phillips, S.C. of Elkhorn. There was oral argument by Jeffery R. Meyer.

    On behalf of the defendant-respondent, the cause was submitted on the briefs of Jan M. Schroeder and Ahndrea R. Van Den Elzen of Peterson, Johnson & Murray, S.C. of Milwaukee. There was oral argument by Jan M. Schroeder.

    Before Snyder, PJ., Brown and Anderson, JJ.
   BROWN, J.

¶ 1. The plaintiffs appeal the circuit court's dismissal of their 42 U.S.C. § 1983 (2005) actions against the Housing Authority of Racine County (HARC). HARC sent both plaintiffs a notice stating it would terminate their section 8 housing assistance benefits because they had violated a "family obligation." Each party requested and received an informal hearing, after which HARC issued a written decision terminating the party's assistance for violating a "tenant responsibility." The circuit court granted summary judgment for HARC on the ground that both plaintiffs had actual knowledge of the charges against them. We reverse. Both the initial notices and the ultimate decisions, essentially form letters, fell woefully short of the level of specificity that due process requires. Nowhere did these documents specify who had violated what specific obligation and when the violation occurred, and neither gave even a rudimentary description of the incidents giving rise to the charges. "Actual notice" will not suffice. Federal regulations mandate written notice, and strict compliance is imperative as a matter of law and public policy. By reading an "actual notice" exception into the regulatory scheme, we would invite housing authorities to dispense with proper notice whenever they determined for themselves that the tenant "must have known" the basis for the allegations against them. Tenants would have no recourse unless they could prove, based on a record that may be sparse or nonexistent, that they did not actually have such notice. Fundamental fairness does not countenance such a result.

Driver's Case

¶ 2. In August 2003, the police arrested Andrea Driver for some robberies that she had allegedly committed with her friend, Shauna Stilo. Becky Getman, a HARC employee, sent Driver a letter while she was in jail advising Driver that she had some information on her housing status. Getman had apparently received a telephone call informing her that Stilo was living at Driver's address. Driver called Getman when she got out of jail and arranged to meet with her. At the meeting, Getman asked for copies of the police records relating to the charges. She warned Driver that engaging in violent criminal activity constituted a violation of Driver's family obligations and could result in termination of her section 8 housing assistance.

¶ 3. On February 27, 2004, Driver received a letter that stated in pertinent part, "Your eligibility to participate in the Section 8 Rental Assistance Program will terminate ... for the following reason(s): You violated your family obligation under the Section 8 Rental Assistance Program." Driver called Getman to inquire why she was being terminated. Getman informed her the reason was violating her family obligations, by which she meant that Driver had another individual living with her. Driver requested an informal hearing in writing, stating "I writing [sic] to request an informal hearing in regards to my being terminated due to family obligations[.] Shauna Stilo does and has not lived with me[.] I can prove it with documents. If she used my address it was not of my knowledge." A hearing was granted and took place on March 9.

¶ 4. Although we have a minimal record before us, the parties appear to agree that the following occurred at the hearing. First, Getman announced that the reason for the hearing was that Stilo was staying at Driver's address in violation of Driver's family obligations. The exhibits included Driver's housing voucher, which set forth the family obligations, several documents Driver signed that reiterate those obligations, and the police reports relating to the robbery. The reports Getman brought listed Stilo's address as Driver's residence. Driver brought other police reports, some of which indicated a different address for Stilo. Driver also called her aunt to testify that Stilo did not live with her. In addition, Stilo's Wisconsin ID card was marked as an exhibit.

¶ 5. Following the hearing, Driver received the results of the informal hearing in a letter reading in relevant part, "[HARC] has concluded its reviewQ of the information you provided and ha[s] found no extenuating circumstances to explain why you were unable to comply with your tenant responsibilities as a recipient of the Section 8 Program.... It is the finding of the Authority that you violated your tenant responsibility and.. . your assistance is being terminated." Driver asked HARC to reconsider, stating that she had additional proof that Stilo did not live with her. HARC denied the request, and she brought a 42 U.S.C. § 1983 claim in the circuit court.

¶ 6. Both parties moved for summary judgment. At the motion hearing, Driver's counsel conceded that actual or oral notice of HARC's grounds for termination sufficed and that Driver had such notice. Specifically, she knew that the termination had to do with Stilo living at her address without HARC's authorization. The court granted HARC's motion and dismissed Driver's case. The court noted Driver's actual knowledge of the issues and that she had an opportunity to prepare for the hearing. It also stated that Driver's letter to HARC asking for a new hearing demonstrated that she knew the reason for the ultimate decision.

Bizzle's Case

¶ 7. On March 7, 2004, Dorothy Bizzle's three sons, Sam, Richard, and Corey became involved in a dispute. Corey and Richard went outside, where Corey cut Richard with a knife, and the police got involved. Both Richard and Corey were arrested. On April 8, Bizzle received a form letter substantively identical to the one Driver received, stating, "[y]ou violated your family obligation under the Section 8 Rental Assistance Program," and informing Bizzle that her assistance would terminate. Bizzle called Getman, her caseworker, from an agency called Fair Housing to ask about the termination letter.

¶ 8. Getman's affidavit states that she informed Bizzle of the reason for the termination, namely, that she had violated her family obligation by allowing Corey to live with her and/or use her address. Only Sam was authorized to live with Bizzle. Getman states she advised Bizzle that she had verification of the violation in the form of a Department of Corrections (DOC) report and a police report. The Getman affidavit also reveals that HARC concluded from the police reports that Richard was living with Dorothy, which, if true, would constitute an independent violation of the "unauthorized persons" obligation. Getman further attests that she issued the termination for a third "family obligation" violation, namely, violent criminal activity on or near her unit. Bizzle sent Getman a letter requesting a hearing and a date for a past-due housing inspection.

¶ 9. The record reveals that at the hearing, Bizzle presented no evidence on her own behalf. Getman read from the police reports and the DOC report and presented them to the hearing officer. The police reports revealed the knife fight between Richard and Corey and that both listed Bizzle's address as their own. The DOC report recorded a home visit Corey's probation officer had made to Bizzle's address, in which Corey told the officer he had just gotten home from work and had nothing new to report. Another DOC document stated that Corey had reported Bizzle's address as his home address since 2003. Getman also introduced several papers Bizzle had signed in which she agreed to observe certain family obligations. Bizzle admitted at the hearing that her children use her address when they go to jail but denied everything else.

¶ 10. After the hearing, Bizzle received a form letter substantively identical to the decision letter Driver received: "[HARC] has concluded its review and ha[s] found no extenuating circumstances to explain why you were unable to comply with your tenant responsibilities as a recipient of the Section 8 Program. It is the finding of the Authority that you violated your tenant responsibility and . . . your assistance is being terminated."

¶ 11. As in the Driver case, Bizzle brought a 42 U.S.C. § 1983 claim that resulted in cross-motions for summary judgment. Like Driver, Bizzle conceded at the motion hearing that she had actual notice and that such notice was adequate. She had admitted in her deposition that she knew the termination was related to Corey living at or using her address and to the fight her sons engaged in. The court granted HARC's motion based on Bizzle's actual knowledge of the pertinent claims and issues and Bizzle's own statements.

Standard of Review

¶ 12. Both tenants appeal, contending that HARC failed to follow the proper procedural mechanisms called for by due process and the federal regulatory scheme. Because this case comes to us on summary judgment, our review is de novo, and we apply the same methodology as the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well known, and we need not repeat it here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. Suffice it to say that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Green Spring Farms, 136 Wis. 2d at 315.

Sufficiency of the Written Prehearing Notices

¶ 13. In Goldberg v. Kelly, 397 U.S. 254, 267-71 (1970), the United States Supreme Court recognized that due process mandates several safeguards prior to the government's termination of welfare benefits. In order to comply with due process, the individual must be given a meaningful pretermination hearing including the following safeguards:

(1) timely and adequate notice detailing the reasons for termination; (2) an opportunity to appear personally at the hearing, present evidence and oral arguments and confront and cross-examine adverse witnesses; (3) the right to be represented by counsel; (4) a right to a decision rendered by an impartial decisionmaker; (5) a right to have that decision based solely on rules of law and the evidence presented at the hearing; and (6) a right to a statement by the decisionmaker setting forth the reasons for the decision and the evidence upon which it was based.

Ferguson v. Metropolitan Dev. & Hous. Agency, 485 F. Supp. 517, 522 (M.D. Tenn. 1980) (emphasis added); Goldberg, 397 U.S. at 267-71, cited in Ferguson. The purpose of the pretermination hearing is to produce an initial determination of the validity of the government agency's grounds for discontinuance of benefits. See Goldberg, 397 U.S. at 267. Both parties recognize that the Goldberg requirements apply to the termination of section 8 benefits. See also Edgecomb v. Housing Auth., 824 F. Supp. 312, 314 (D. Conn. 1993) (holding that termination of section 8 benefits must be judged by the standards in Goldberg)-, Ferguson, 485 F. Supp. at 522 (section 8 case; recognizing that "Goldberg . .. provides the essential standard for a hearing on termination of public assistance benefits relating to the livelihood and survival of the participant"); Simmons v. Drew, 716 F.2d 1160, 1162 (7th Cir. 1983) (comparing section 8 assistance to job tenure and recognizing it as a property right protected by the Fourteenth Amendment). The parties also appear to agree that the United States Department of Housing and Urban Development enacted the regulations pertinent to this case to codify and implement the Goldberg standards.

¶ 14. HUD regulations provide that a housing authority may terminate section 8 assistance if the family violates any family obligations under the program. See 24 C.F.R. § 982.552(c)(1)(f) (2005). It must, however, give the family the option of an informal hearing because a termination on these grounds is based on the family's action or failure to act. See 24 C.F.R. § 982.555(a)(l)(v). The housing authority must apprise the participant family of the right to a hearing in a "prompt written notice" that also contains, among other information, "a brief statement of reasons for the decision." See § 982.555(c)(2)(f).

¶ 15. Edgecomb provides the most thorough discussion of the elements embodied in such a "brief statement." The court in that case began by noting the purpose of the written notice, "to inform the tenant of the allegations so that he can prepare a defense." Edgecomb, 824 F. Supp. at 314. In light of that purpose, the court concluded that the notice must be "sufficiently specific... to enable [the tenant] to prepare rebuttal evidence to introduce at his hearing appearance." Id. at 315 (quoting Billington v. Underwood, 613 F.2d 91, 94 (5th Cir. 1980)). In order to effectively rebut adverse evidence at the hearing, the notice must alert the tenant of the nature of this adverse evidence. See Edgecomb, 824 F. Supp. at 315; Billington, 613 F.2d at 94 (in order to properly safeguard against error in eligibility determinations for section 8 benefits, the housing authority must at a minimum apprise the rejected applicant of the following information about the adverse evidence in its "statement of reasons": the date, the source of the information — including the name and title of individuals contacted — and a resume of the information received).

¶ 16. Edgecomb found the notices at issue in that case deficient based on these standards. The plaintiff had given her brother a ride to the store when he came to visit her, and he had sold cocaine to two men in the parking lot. Edgecomb, 824 F. Supp. at 313. Several months later, the plaintiff received a notice that the housing authority intended to terminate her housing assistance. Id. The notice stated that the housing authority was terminating the plaintiff for "having engaged in drug-related criminal activity or violent criminal activity, including criminal activity by any family member." Id. at 315. The court reasoned that a proper notice would have stated the particular felony, specified the particular person alleged to have committed the felony, and contained a brief factual statement concerning the incident. Id. The form letter notices HARC issued to Driver and Bizzle clearly do not come within a country mile of the degree of specificity Edgecomb described.

Sufficiency of the Written Decisions

¶ 17. In addition to written notice of the pertinent allegations prior to the informal hearing, Goldberg also requires that the decision maker state the reasons for its determination and indicate what evidence it considered in reaching its conclusion, although the decision need not amount to a comprehensive judicial opinion with formal findings of fact and legal conclusions. See Goldberg, 397 U.S. at 271; 24 C.F.R. § 982.555(e)(6) (requiring "a written decision, stating briefly the reasons for the decision"). Cole v. Metropolitan Council HRA, 686 N.W.2d 334, 338 (Minn. Ct. App. 2004), interpreted § 982.555(e)(6) to require a housing authority to "explain on what evidence it is relying and how that evidence connects rationally with its choice of action." Although formal findings of fact and conclusions of law are not necessary, the decision must contain at least a rudimentary explanation of the elements of fact or law on which the decision is actually based, so as to be truly informative as to why the housing authority reached the conclusion it did. See Edgecomb, 824 F. Supp. at 316. Bare and conclusory statements, therefore, will not suffice. Id. Edgecomb deemed the following explanation too conclusory to satisfy these standards: "there was a preponderance of evidence that indicated that a Family member did engage in such drug related activity while on the Section 8 program, which is a violation of [the pertinent regulation]." Id. at 316.

¶ 18. Both decision letters from HARC fall appallingly short of the mark. They contain no facts related to the incidents giving rise to the termination decisions and do not mention any specific evidence the hearing officers relied on. Moreover, they do not state the elements of law motivating the court's conclusion. Even if we ignore the absence of any factual background, the letters are deficient for the absence of any legal rationale. They cite no policy, regulation, or other authority indicating what a "family obligation" is or how the plaintiffs' acts or omissions fail to meet the pertinent legal requirements.

Irrelevance of "Actual Notice"

¶ 19. HARC contends that even if its written notices and decision letters failed to live up to Goldberg standards, the defects in these communications are cured by the parties' "actual notice" of the reasons for their termination. We recognize that the plaintiffs conceded both "actual knowledge" and the sufficiency thereof at the summary judgment hearing. However, we deem this concession ill-advised and contrary to law and public policy. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 493, 588 N.W.2d 285 (Ct. App. 1998) (waiver rule purely administrative and not a bar to this court addressing issues if it so chooses). Thus, we will address the sufficiency of "actual notice."

¶ 20. We begin with the language of the implementing regulations. HUD expressly requires in 24 C.F.R. § 982.555(c)(2)(i) that a housing authority wishing to terminate section 8 benefits issue the recipient a "prompt written notice" of its proposed termination. (Emphasis added.) Similarly, § 982.555(e)(6) requires the housing authority to issue a "written decision" that states the basis for the termination. (Emphasis added.) We contrast this language with the wording of § 982.555(c)(1), the pertinent part of which reads, "In the cases described in paragraphs (a)(l)(i), (ii) and (iii) of this section [dealing with grounds for termination other than the recipient's acts or omissions], the [housing authority] must notify the family that the family may ask for an explanation of the basis of the ... determination." Whereas this latter section appears to allow for "oral notice," its counterpart in subsection (c)(2) clearly mandates a different procedure. We need look no further than HUD's intent as evidenced by the regulatory language. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 43, 45, 271 Wis. 2d 633, 681 N.W.2d 110 (where statute unambiguous, we go no further than its plain meaning).

¶ 21. In Morales v. McMahon, 272 Cal. Rptr. 688, 691-92 (Ct. App. 1990) (involving reduction of welfare benefits), the appellate court reached a similar result. Morales observed that the applicable regulation defined "adequate notice" as "written notice" and "provide [d] no exceptions for oral notice or constructive notice." Id. at 691. Thus, the court held that regardless of whether Goldberg might allow for "actual or constructive notice," the regulatory scheme contemplated "an arguably higher standard of 'what process is due.'" Morales, 272 Cal. Rptr. at 692 & n.5.

¶ 22. In addition to the foregoing, public policy mandates strict compliance with the written notice requirement. First, due process imposes the burden of providing adequate notice on the government, not on the individual. See Ortiz v. Eichler, 616 F. Supp. 1046, 1062 (D. Del. 1985) (involving Medicaid, AFDC, and food stamp benefits). Other courts have, on due process grounds, deemed written notices that merely inform the benefit recipient of the opportunity to discover the reason for the termination to be improper because they effectively reheve the government of that burden. Id.; Morales, 272 Cal. Rptr. at 692; see also Vargas v. Trainor, 508 F.2d 485, 489-90 (7th Cir. 1974) (terminations of public assistance benefits to aged, blind and disabled individuals). The court in Vargas cogently observed:

Even if the cases were not read to impose so categorical a requirement [referring to written notice], the notice in this case would fail to meet the requirements of due process. The notice is addressed to persons who are aged, blind, or disabled, many of whom, defendant could have anticipated, would be unable or disinclined, because of physical handicaps and, in the case of the aged, mental handicaps as well, to take the necessary affirmative action.... Under such a procedure only the aggressive receive their due process right to be advised of the reasons for the proposed action. The meek and submissive remain in the dark and suffer their benefits to be reduced or terminated without knowing why the Department is taking that action.

Vargas, 508 F.2d at 489-90; see also Ortiz, 616 F. Supp. at 1062 (citing Vargas); Morales, 272 Cal. Rptr. at 692.

¶ 23. Although Morales, Ortiz, and Vargas focused primarily on the inadequacy of constructive notice, we conclude that recognizing an "actual notice" exception to the regulatory scheme would, in practice, amount to the same thing. Because of the informality surrounding the pretermination hearing process, courts may have little or no record upon which to ascertain the sufficiency of oral or other actual notice. Such is the case here. We have no records of the administrative proceedings in the Bizzle and Driver matters from which to ascertain how much the plaintiffs knew about the claims against them, and what little we can piece together we derive from deposition testimony, affidavits, and representations the parties made at the summary judgment hearing. Faced with such a sparse record, a section 8 recipient who attempts to establish that he or she did not receive oral notice faces a nearly insurmountable task. Courts would likely infer actual notice in many cases from the mere opportunity of the plaintiff to discover the pertinent information (i.e., constructive notice) combined with the housing authority's assertion that he or she in fact exercised that opportunity, at which time it provided oral notice. Thus, an "actual notice" exception would not adequately protect a section 8 recipient's property right in his or her benefits. Cf. University Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982) ("The reason that 'strictness' is required in following the terms of the power granted by the deed of trust is to protect the property of the debtor."); Hawkins v. Bruno Yacht Sales, Inc., 536 S.E.2d 698, 705-06 (S.C. Ct. App. 2000) (strict compliance with statutory requirements necessary prior to a tax sale, even if taxpayer has "actual notice"), modified on other grounds and aff'd, 577 S.E.2d 202 (S.C. 2003).

¶ 24. Moreover, we do not want to invite noncompliance with the regulatory requirements. If we recognize an "actual notice" exception, we can foresee housing authorities bending the rules and providing deficient written communications whenever they satisfy themselves that the section 8 recipient must "already know" the basis for its termination decision. Such a self-serving conclusion, of course, improperly presupposes that the tenant has committed some violation of which he or she must already be aware.

¶ 25. Although we emphasize that only strict compliance will suffice, we note that if we did recognize an "actual notice" exception to the regulatory requirement of written prehearing notices and final decisions, such notice would have to be essentially an oral replica of the information Edgecomh requires a written communication to contain. Specifically, the housing authority would have to inform the tenant who committed the violation, based on what conduct, when the incident occurred, what policies or rules the conduct violates, how the conduct fails to comply with section 8 rules or policies, and what evidence the housing authority has that leads it to believe that the described violation occurred. Again, due process requires such information in order for the tenant to adequately prepare for the hearing and to understand what factors motivated the final decision, particularly where more than one potential ground for termination exists.

¶ 26. The "actual notice" the plaintiffs conceded here would fall short of these due process standards. Driver obviously knew that the grounds for termination had something to do with the fact that HARC believed Stilo was living at her apartment. HARC did not challenge opposing council's representation at oral argument that tenants may have guests, even overnight guests, for periods not exceeding twenty-one days. In response to the court's inquiry as to what twenty-one day period Stilo allegedly overstayed her welcome, however, HARC had no answer. HARC also did not challenge opposing council's assertion that the police reports offered at the hearing — if we presume their contents to be true — conclusively establish only that Stilo had stayed at Driver's address for a period of thirteen days. Although the twenty-one day time period is obviously decisive with respect to whether a "family obligation" violation occurred, even HARC appears to be in the dark about how it established this crucial factor. We cannot imagine that Driver would know better than HARC why HARC terminated her assistance.

¶ 27. Turning now to the Bizzle matter, we note that Getman attested to the fact that before the hearing, she informed Bizzle that she was being terminated because "Corey Bizzle was living with her and/or using her address in violation of her family law obligation." We have two problems with this oral notice. First, it is obvious from the record that HARC considered "using the address" to mean something other than "living at the address." HARC's counsel referred to Bizzle's admission at the informal hearing that when her children go to jail, they use her address. Near as we can tell, this violation involves someone other than the tenant listing the tenant's address as either a mailing address or a place of residence. Of what HARC policy or regulation this conduct constitutes a violation remains a mystery. HARC does not refer to any HUD regulation. Moreover, although throughout these proceedings HARC has referred to several documents in the record — which Bizzle signed and which enumerate various rules she must follow — as sources of "family obligations," none of these documents indicates the existence of a "using the address" violation.

¶ 28. Notwithstanding the fact that HARC cites no authority for the proposition that someone else's use of Bizzle's address violates a family obligation, the circuit court dismissed Bizzle's action in part because of her admissions that her children used her address when they went to jail. We presume that HARC would not have mentioned Bizzle's admission had it not provided at least part of the basis for its ultimate decision to terminate benefits; that fact would otherwise have been irrelevant. HARC's implicit concession that it terminated benefits partially on the basis of the "using the address" violation dooms its case. Again, due process requires a housing authority to reveal why the tenant's conduct constitutes a violation.

¶ 29. Moreover, at the summary judgment hearing, the parties appeared to agree that the violations of which Bizzle had been apprised involved Corey living at "and/or using her address" and the violent criminal activity involving the knife fight between Richard and Corey. Yet, Getman's affidavit indicates that it also considered Richard to be an unauthorized person living with Bizzle or using her address. HARC does not dispute that at the informal hearing Getman raised concerns about Richard as an unauthorized person. HARC's implicit concession that its ultimate decision took into account Bizzle's admission that her children (presumably meaning more than one child) use her address when they go to jail, raises serious concerns that HARC did not inform Bizzle of all grounds upon which its termination rested; even if we assume that HARC based its termination only on Corey's residence/use of the address and the knife fight, the fact that other possible grounds for termination came to light at the hearing renders HARC's final decision to terminate benefits fatally ambiguous. Thus, it appears that to the extent Bizzle had "actual notice" of HARC's claims, this notice was incomplete.

¶ 30. We reverse. Neither Driver nor Bizzle received adequate notice of HARC's reasons for terminating assistance because the written communications were not specific enough to satisfy due process requirements. Because the regulatory scheme expressly requires written notice and written decisions, we look only to these documents and not to other forms of notice. Indeed, reading an "actual notice" exception into the HUD regulations would raise serious public policy concerns, as it would invite housing authorities to disobey the regulations whenever they deemed a tenant to have actual knowledge of what he or she did wrong and would effectively shift the burden of ascertaining the basis of the termination decision to the tenant. Tenants who had "constructive notice," moreover, would often be deprived of their property without redress because sparse or nonexistent records would preclude them from disproving the housing authority's assertion that it gave the tenant actual notice. Moreover, even were we to allow an "actual notice" exception, it would have to be oral notice that contained all of the specific information that Edgecomb mentioned. Neither party received such notice here.

¶ 31. We also remand these cases to the circuit court to determine the appropriate remedy. In part, this remedy will include an injunction commanding HARC to obey due process and regulatory requirements. The court shall also determine what damages Bizzle and Driver deserve for the improper deprivation of their housing assistance benefits. Finally, the court should explore the possibility of getting both tenants back onto the section 8 program.

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

       All United States Code references are to the 2005 version unless noted otherwise.

        See United States Housing Act of 1937, § 8, 42 U.S.C. § 1437f.

       All references to the Code of Federal Regulations are to the 2005 version unless otherwise noted.

       Cases involving other forms of public assistance have reached comparable results. In Gray Panthers v. Schweiker, 652 F.2d 146, 168 (D.C. Cir. 1980), the D.C. Circuit underscored the uselessness of an evidentiary hearing in which the individual had inadequate prior notice of the evidence. "Without notice of the specific reasons for [the agency's action], a claimant is reduced to guessing what evidence can or should be submitted in response and driven to responding to every possible argument against denial at the risk of missing the critical one altogether." Id. at 168-69. Similarly, in Ortiz v. Eichler, 616 F. Supp. 1046, 1061-62 (D. Del. 1985) (involving Medicaid, AFDC, and food stamp benefits), the court emphasized that where an agency's decision is based on the benefit recipient's conduct, the notice must "explain what the claimant was required to do and how his or her actions failed to meet this standard" so that the recipient can adequately ascertain the correctness of the agency's decision and prepare for the issues at a hearing.