author: SNYDER, J.

text:
    In re the Commitment of Dennis Thiel: State of Wisconsin, Petitioner-Respondent, v. Dennis Thiel, Respondent-Appellant.
    Court of Appeals

      No. 03-2649.

      Submitted, on briefs September 9, 2004.

    Decided November 17, 2004.

    2004 WI App 225
    (Also reported in 691 N.W.2d 388.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautensehlager, attorney general.
    Before Anderson, EJ., Brown and Snyder, JJ.
   SNYDER, J.

¶ 1. Dennis Thiel appeals a nonfinal order entered following his supervised release petition under Wis. Stat. § 980.08 (2001-02). Thiel contends two examiners should have been appointed: one for the court under § 980.08(3), and one for him under Wis. Stat. § 980.03(4). He further contends that § 980.03(4) grants him his choice of examiner and that his current examiner is not qualified to administer or opine on the relevant test, the Psychopathy Checklist-Revised (PCL-R). He argues that the circuit court's refusal to appoint a court examiner under § 980.08(3) is error, and the court's appointment of a § 980.03(4) examiner who is not certified in the PCL-R test demonstrates an erroneous exercise of discretion. We agree and therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

BACKGROUND

¶ 2. The State pursued commitment of Thiel as a sexually violent person under Wis. Stat. ch. 980. Since his commitment in November 1998, two rather protracted proceedings ensued to determine whether Thiel was ready for discharge or for supervised release into the community. Although this appeal arises from Thiel's supervised release petition, we include information regarding the discharge proceedings because, to some extent, the events overlap.

¶ 3. Six months after his commitment, Thiel refused to waive his right to petition for discharge under Wis. Stat. § 980.09(2), thus requiring the circuit court to determine whether probable cause existed to warrant an evidentiary hearing on Thiel's status as a sexually violent person. Relying on a recent reexamination report submitted by the State, the court concluded that probable cause did not exist and no evidentiary hearing was required. Thiel appealed, and we reversed, holding that the circuit court erred when it denied Thiel an independent examiner and when it failed to accept a valid waiver of counsel. See State v. Thiel, 2001 WI App 32, ¶¶ 20-21, 241 Wis. 2d 465, 626 N.W.2d 26 (Thiel I). On remand, the circuit court granted Thiel's request to appoint Dr. Michael Kotkin to examine him and determine his readiness for discharge.

¶ 4. On June 14, 2000, while his discharge proceeding was on appeal, Thiel filed a petition for supervised release and requested that Dr. Kotkin be appointed as his expert in that matter as well. Subsequently, Thiel agreed to adjourn the supervised release matter pending resolution of his discharge hearing and various appeals.

¶ 5. By January 2003, Thiel had completed the Core program, a two-year treatment program, and had been living on the residential unit with the greatest patient privileges. Dr. Kotkin filed his report on February 21, 2003, and recommended supervised release for Thiel, but not discharge.

¶ 6. On March 13, the Sand Ridge Secure Treatment Center (Sand Ridge) informed Thiel of a revision in its policy whereby all patients with a PCL-R score of twenty-seven or above were being moved from the two-year Core treatment program to the five-year Corrective Thinking program. Prior to the new policy, patients with a score above thirty were placed in the Corrective Thinking program. During Thiel's commitment, three doctors scored him differently on the PCL-R. The scores ranged from twenty to twenty-nine, with the average of the highest two test score results exceeding the new threshold score of twenty-seven. As a result, Sand Ridge concluded that under its new test score policy, Thiel would require the five-year Corrective Thinking program.

¶ 7. Dr. Susan Sachsenmaier, senior psychologist at Sand Ridge, filed a report one week later stating that Thiel had a "significant degree of psychopathy, which combined with sexual deviance, creates a high degree of risk of reoffense." In her report, Dr. Sachsenmaier referenced the PCL-R tests used to evaluate Thiel's need for treatment. She also stated that there was no indication Sand Ridge would modify Thiel's reassignment into the Corrective Thinking program to reflect his completion of the Core program. Dr. Sachsenmaier, however, said she did not believe Thiel would need five more years of treatment "to reduce his level of risk to the degree that he could earn a recommendation for supervised release."

¶ 8. Ultimately, the circuit court concluded that the facts did not warrant a discharge hearing, and Thiel requested permission to go forward with his petition for supervised release. He asked the court to appoint Dr. Patricia Coffey as his expert in the supervised release proceeding, pursuant to Wis. Stat. § 980.03(4). The court questioned the need to appoint Dr. Coffey in light of Dr. Kotkin's recent evaluation for the discharge hearing. Thiel argued that, unlike Dr. Kotkin, Dr. Coffey was certified and trained in the use of the PCL-R and would be able to address the issues associated with that evaluation tool.

¶ 9. The circuit court held a hearing to address Thiel's request on July 21, 2003. At the motion hearing, the State agreed with Thiel that Dr. Coffey should be appointed. Nonetheless, the court, by letter dated July 31, advised the parties that Wis. Stat. § 980.03(4) did not apply to Thiel's petition for supervised release and that the court was willing to reappoint Dr. Kotkin as the court's examiner pursuant to Wis. Stat. § 980.08(3). The court's order states in relevant part:

Respondent's request for the appointment of Dr. Patricia Coffey to examine Respondent pursuant to § 980.08(3) is denied for reasons stated on the record. In addition, Dr. Kotkin has already submitted a report stating that the Respondent is appropriate for conditional release while it is unknown whether Dr. Coffey would even support the Respondent's Petition for Conditional Release. To expend the funds for an expert who has not already treated the Respondent, nor has been previously appointed at the request of the Respondent ... would be fiscally irresponsible in light of tight budgets .... The Court previously appointed Dr. Kot-kin for the discharge hearing and he is being reappointed. The Court is satisfied and finds that Dr. Kotkin has the requisite specialized knowledge to be appointed in this matter even though not certified to administer the PCL-R test, he has not been shown to be unable to render opinions as to the test or its meaning.

¶ 10. Thiel renewed his objection to the appointment of Dr. Kotkin, adding that the circuit court's appointment of an examiner under Wis. Stat. § 980.08(3) did not address Thiel's right to an examiner of his own under Wis. Stat. § 980.03(4). Thiel then filed a motion seeking to have Dr. Coffey appointed pursuant to § 980.03(4).

¶ 11. At a motion hearing on September 19, the State agreed that the statutes require the circuit court to appoint two evaluators, one for the court, and another for Thiel. Following this hearing, the court revised its earlier ruling and concluded that Thiel is entitled to the appointment of an expert under Wis. Stat. § 980.03(4). However, the court denied Thiel's motion to appoint Dr. Coffey and instead recast Dr. Kotkin's appointment under Wis. Stat. § 980.08(3) as an appointment under § 980.03(4), in effect changing Dr. Kotkin's status from the examiner for the court to Thiel's examiner. The court did not appoint a new examiner for the court under § 980.08(3). Thiel requested permission to appeal the nonfinal order, and we granted his request.

DISCUSSION

¶ 12. Thiel raises three issues on appeal: (1) whether the circuit court must appoint an examiner for the court under Wis. Stat. § 980.08(3) when it has appointed an examiner for the petitioner under Wis. Stat. § 980.03(4); (2) whether an indigent party petitioning for supervised release under § 980.08 is entitled to an examiner of his or her choice under § 980.03(4); and (3) whether the court's appointment of Dr. Kotkin as Thiel's examiner was an erroneous exercise of discretion. We take each issue in turn.

Appointment of Experts Under Wis. Stat. §§ 980.08(3) and 980.03(4)

¶ 13. The circuit court originally appointed Dr. Kotkin under Wis. Stat. § 980.08(3), ordering him to submit his examination report directly to the court. The court subsequently revised its ruling and appointed Dr. Kotkin as Thiel's examiner, with directions to submit his report to Thiel's attorney instead of the court, and left the § 980.08(3) examiner position vacant. We must decide if the appointment of Dr. Kotkin as Thiel's examiner relieved the court of its duty to appoint an examiner for the court under § 980.08(3). The application of a statute to a set of facts is a question of law which this court reviews de novo. Beaudette v. Eau Claire County Sheriffs Dep't, 2003 WI App 153, ¶ 20, 265 Wis. 2d 744, 668 N.W.2d 133.

¶ 14. Wisconsin Stat. § 980.08 governs petitions for supervised release, and directs the court as follows: "Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment." Sec. 980.08(3) (emphasis added). Our supreme court has repeatedly held that statutory interpretation first looks to the language of the statute and, "[i]f the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). The word "shall" in a statute is "presumed to be mandatory when it appears in a statute, unless a different construction is necessary to carry out the legislature's clear intent." C.A.K. v. State, 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990).

¶ 15. At the motion hearing, the State joined with Thiel in arguing that the circuit court should appoint two examiners, one for Thiel and one for the court. The State pronounced:

I agree with [Thiel] that [Wis. Stat. §] 980.08 in conjunction with [Wis. Stat. §] 980.03(4) does require the Court to appoint another evaluator if the defendant requests it, and I agree that the appointment of Dr. Kotkin would be considered the one — one required of the Court to do and that there should be someone else.

¶ 16. The State has changed its position on appeal. Rather than joining in the assertion that two examiners are required as it did in the circuit court, the State now argues that Thiel is not entitled to an examiner of his own under Wis. Stat. § 980.03(4). The legislature chose to grant the right to request an examiner to committed persons who are required to "submit to an examination under this chapter." Id. (emphasis added). We are satisfied that Thiel's Wis. Stat. § 980.08 petition for supervised release, which mandates the court to appoint an examiner under § 980.08(3), implicates this right.

¶ 17. The parties agree that the language of Wis. Stat. § 980.08(3) requires the circuit court to appoint an examiner for the court, and we concur. Unlike the examiner for the court, Thiel's examiner reports directly to him or, as in this case, his attorney, and his examiner's opinions are not discoverable unless the examiner is called to testify. See State v. Rachel, 224 Wis. 2d 571, 575-76, 591 N.W.2d 920 (Ct. App. 1999). Also, a petitioner's examiner participates in the proceeding "on the person's behalf." Wis. Stat. § 980.03(4). Because the two examiners clearly serve different purposes, we conclude that the appointment of Thiel's examiner under § 980.03(4) did not satisfy the mandate of § 980.08(3); therefore, the circuit court erred when it refused to appoint an examiner for the court.

Petitioner's Right to Choice of Examiner Under Wis. Stat. § 980.03(4)

¶ 18. Thiel asserts that he, an indigent petitioner, is entitled to an examiner of his own choice under Wis. Stat. § 980.03(4). The statute provides in part:

Whenever a person who ... has been committed under s. 980.06 is required to submit to an examination under this chapter, he or she may retain experts or professional persons to perform an examination. If the person retains a qualified expert or professional person of his or her own choice to conduct an examination, the examiner shall have reasonable access to the person for the purpose of the examination, as well as to the person's past and present treatment records, as defined in s. 51.30(l)(b), and patient health care records as provided under s. 146.82(2)(c). If the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination and participate in the trial or other proceeding on the person's behalf. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of an expert or professional person appointed hy a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person.

Sec. 980.03(4). Thiel contends that he not only has the right to request a court-appointed examiner, but to request an examiner of his own choice. The question presented involves the interpretation of § 980.03(4), and thus, it is a question of law that we review de novo. See Rachel, 224 Wis. 2d at 573.

¶ 19. In support of his position, Thiel presents a thorough analysis of grammatical principles, legislative history, and the need to harmonize statutes. He fails, however, to overcome the plain language of the statute. Specifically, Wis. Stat. § 980.03(4) provides that an indigent person may request an examiner and the court may "appoint a qualified and available expert" to serve in that role. "Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute." Kalal, 271 Wis. 2d 633, ¶ 44."[Legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public." Id. Had the legislature intended to grant an indigent petitioner the right to an examiner of his or her own choice under § 980.03(4), it could have easily done so.

¶ 20. Our construction comports with companion statute Wis. Stat. § 980.07(1), which states that the committed person "may retain or seek to have the court appoint an examiner as provided under [Wis. Stat.] s. 980.03(4)." (Emphasis added.) We observe that the disjunctive construction of § 980.03(4) presents two alternatives: a person may retain an expert (of his or her own choice) or may ask the court to appoint a qualified and available expert. Thiel has requested that the circuit court appoint an examiner. To comply with the statute, the court must appoint an expert or professional person who is qualified and available. Id.

¶ 21. Thiel also argues that equal protection considerations require us to afford him the same rights as other similarly situated persons. He asserts that persons subject to Wis. Stat. § 51.20, involuntary commitment of the mentally ill, or Wis. Stat. § 971.17, commitment of persons found not guilty by reason of mental disease or defect, are similarly situated and provide meaningful comparison because "mentally ill persons who are committed under [Wis. Stat.] ch. 51 and persons found [not guilty by reason of mental disease or defect] and committed under § 971.17 are both entitled to a court-appointed expert of their choice in the reexamination process." The similarities between Wis. Stat. chs. 980 and 51 have not escaped us, and we agree that the re-examination process under ch. 980 may, under certain circumstances, be read in conjunction with ch. 51. See State v. Anthony D.B., 2000 WI 94, ¶ 31, 237 Wis. 2d 1, 614 N.W.2d 435 (holding that the periodic review of a person's commitment under Wis. Stat. § 980.07 should include a review of an order for involuntary medication under Wis. Stat. § 51.61(l)(g)).

¶ 22. We have, however, also observed that "[d]e-spite some fundamental similarities to other commitment proceedings, [Wis. Stat.] ch. 980 ultimately is unique and distinct from other civil commitment chapters." Thiel I, 241 Wis. 2d 465, 18. With regard to Thiel's Wis. Stat. § 980.03(4) request for an examiner, the distinction is clear. As discussed in the previous section, Thiel seeks appointment of an examiner who will file a report directly with him or his attorney and who will participate on his behalf. See id. In contrast, Wis. Stat. §§ 51.20(9)(a)5 and 971.17(4)(c) do not offer the patient the right to an examiner who will serve on his or her behalf; rather, they require the examiner to file a report with the court. We see no need to harmonize where there is no conflict between the statutes. See Parker v. Percy, 105 Wis. 2d 486, 492, 314 N.W.2d 166 (Ct. App. 1981) (where no conflict exists, we will not look beyond the plain words of the statutes). Accordingly, Thiel's proposition that he is similarly situated to §§ 51.20 and 971.17 committed persons fails due to the distinctly different examiner roles authorized under the statutes.

¶ 23. We conclude that the plain language of Wis. Stat. § 980.03(4) affords Thiel the right to a "qualified and available expert or professional person" who will be appointed by the court and paid for by the county. The court's refusal to adopt Thiel's broad reading of the right to an expert of choice was a proper interpretation of the statute.

Qualifications of Expert Appointed Pursuant to Wis. Stat. § 980.03(4)

¶ 24. This brings us to the related issue of whether Dr. Kotkin is a qualified expert for the purposes of Wis. Stat. § 980.03(4) appointment as Thiel's examiner. The question of an expert witness' qualifications is a discretionary determination for the circuit court. State v. Robinson, 146 Wis. 2d 315, 332, 431 N.W.2d 165 (1988). We examine the circuit court's discretion by determining if the court compared the technical expertise of the witness to the complexity of the precise issue in the case. Tanner v. Shoupe, 228 Wis. 2d 357, 370, 596 N.W.2d 805 (Ct. App. 1999).

¶ 25. Thiel contends that Dr. Kotkin is not qualified to serve as his Wis. Stat. § 980.03(4) examiner because he is not certified in the PCL-R test, which is the instrument referenced in Dr. Sachsenmaier's March 2003 re-examination report. When Sand Ridge revised the scoring threshold for the PCL-R test, it placed Thiel into more restrictive confinement and routed him into the five-year Corrective Thinking program without consideration for his successful completion of the two-year Core program. At the July 21, 2003 motion hearing, the State joined with Thiel in requesting the appointment of Dr. Coffey as Thiel's examiner because she is certified in the PCL-R. The issue, therefore, is whether Dr. Kotkin has "technical and scientific expertise" in the PCL-R instrument, which presents the "precise question" of this case. See Tanner, 228 Wis. 2d at 370.

¶ 26. An appellate court will search the record for reasons to sustain the circuit court's discretionary de-cisión. Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737. We will affirm discretionary determinations if they have a reasonable basis and are made in accord with the facts of record. James v. Heintz, 165 Wis. 2d 572, 578-79, 478 N.W.2d 31 (Ct. App. 1991).

¶ 27. Here, the court appointed Dr. Kotkin because "he is familiar with the case .... He has already been paid for his services and investigation and studies." The court also stated that it was "satisfied and finds that Dr. Kotkin has the requisite specialized knowledge to be appointed in this matter even though not certified to administer the PCL-R test, he has not been shown to be unable to render opinions as to the test or its meaning." Further, the court stated, "I think any psychologist worth their Ph.D. would very handily be able to explain what that test is and what it does and what the numbers mean and how they should or shouldn't vary between the different examiners."

¶ 28. Sand Ridge, an agency of the Wisconsin Department of Health and Family Services, revised the scoring threshold for the PCL-R test while Thiel was pursuing discharge and supervised release. Sand Ridge's new scoring policy and its consequences for Thiel are clearly key issues in his supervised release proceeding. Yet, on appeal, the State argues that Thiel does not require the benefit of an expert who is certified in the PCL-R test. We disagree. Dr. Kotkin's lack of PCL-R training and certification in the PCL-R evaluation tool is directly related to his "technical and scientific expertise" in the "precise question" of this case. See Tanner, 228 Wis. 2d at 370. In particular, the circuit court should have considered Dr. Kotkin's competence to comment on the significance of the revised scoring threshold implemented by Sand Ridge. Because there is no record evidence that the court exercised its discretion in this regard, we remand the matter with instructions for the court to appoint a qualified expert for Thiel under Wis. Stat. § 980.03(4).

CONCLUSION

¶ 29. We conclude that the circuit court must appoint an examiner for the court under Wis. Stat. § 980.08(3) regardless of whether the court also appointed an examiner for the petitioner under Wis. Stat. § 980.03(4). We further conclude that an indigent party-petitioning for supervised release under § 980.08 is not entitled to an examiner of his or her choice under § 980.03(4), but is entitled to a "qualified and available" court-appointed examiner. Finally, we conclude that the court's appointment of Dr. Kotkin as Thiel's examiner was an erroneous exercise of discretion. The matter is hereby remanded to the circuit court for appointment of an examiner for the court pursuant to § 980.08(3) and for appointment of a § 980.03(4) examiner who is qualified to opine on the PCL-R evaluation tool and the revised scoring policy.

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

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

       The State argues on appeal that Thiel had no right to an examiner because Wis. Stat. § 980.08 contains no cross-reference to Wis. Stat. § 980.03(4). Further, the State contends that a person filing for supervised release has not been "required to submit to an examination" within the meaning of § 980.03(4). The State argues that "by filing a petition for supervised release, the committed person has, in essence, asked the court to appoint examiners to examine his condition and suitability for supervised release." The State implies that because Thiel petitioned for supervised release, he is the one requiring the re-examination, not the State. The State is asking us to limit a committed person's right to request an examiner to those situations where "the State has required [the person] to undergo an examination in the course of the State's action against [that person]." The State, in effect, is appealing the court's order appointing an expert under § 980.03(4). No cross-appeal has been filed, however. We address the issue only to the extent it is related to Thiel's appellate issue.


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Charles E. Young, Defendant-Appellant.

    Court of Appeals

      No. 03-2968-CR.

      Oral argument October 12, 2004.

    Decided November 17, 2004.

    2004 WI App 227
    (Also reported in 690 N.W.2d 866.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument oí Martha K. Askins, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and brief and oral argument by Sandra L. Nowack, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 2-9-2005.

   NETTESHEIM, J.

¶ 1. Charles E. Young left the scene of a Terry stop without submitting to the police show of authority. The police pursued and captured Young and later discovered THC in a coat that Young discarded during the capture. Because Young did not submit to the police show of authority, we hold that California v. Hodari D., 499 U.S. 621 (1991), precludes Young's claim that he was illegally seized under the Fourth Amendment. Consequently, we uphold the trial court's order denying Young's motion to suppress and we affirm the judgments of conviction for possession of THC, resisting an officer and obstructing an officer.

BACKGROUND

¶ 2. The facts of this case are not in dispute. We take them from the evidence adduced at both the suppression hearing and the ensuing jury trial. On October 26, 2002, City of Kenosha Policer Officer David Alfredson was patrolling an area of the city where taverns and popular nightspots are located. Residents of the area had previously complained about "people leaving beer bottles in their yards, loud music, [people] being loud and boisterous going to and from the clubs." Alfredson was patrolling the area in light of these complaints.

¶ 3. As Alfredson was driving on 21st Avenue between 52nd Street and 53rd Street, he noticed a car bearing Illinois license plates parked on the east side of the avenue and occupied by about five people, including Young. Alfredson continued driving, stopping at one point to break up an argument outside a bar. About five to ten minutes later, Alfredson was again driving down 21st Avenue and noticed the same car still occupied by the same number of people. Alfredson decided to, in his words, "stop" the vehicle because:

It was still occupied with five people in it. That length of time, they would have had time there to park and go out somewhere. They would have more than enough time to go out and do that, so it arose my suspicion for possible drinking or narcotics; so I'll stop and check it out.

¶ 4. Alfredson's decision to detain the vehicle and its occupants was consistent with his practice.

As I'm patrolling the area specifically around the taverns, I'm looking for occupied vehicles occupied for a length of time. I'll drive by and come back a little while later, a couple of minutes, five minutes. If it's still occupied, I'll stop and check the vehicle to see if people are drinking in the vehicle, narcotics, loud music, if they are playing the stereo too loud.

¶ 5. Alfredson stopped his squad car in the roadway adjacent to a vehicle that was parked behind the suspect vehicle. He activated his flashing emergency lights and used his spot light to illuminate the vehicle. Alfredson then observed Young exit the vehicle from the backseat. Alfredson exited his squad and ordered Young back into the vehicle. Young "turned and started walking away from the vehicle." Alfredson yelled to Young, "Get back in that car right now." Young again turned, looked at Alfredson, and then started running toward a nearby house. Alfredson took up pursuit and caught Young at the porch of the residence as Young was trying to gain entry. During the struggle, Young discarded his coat, throwing it toward the door of the residence. Eventually, Alfredson subdued and handcuffed Young, retrieved the coat, and discovered what he believed to be marijuana in a vial located in one of the coat pockets. Further testing confirmed Alfredson's belief.

¶ 6. The State charged Young with possession of THC, resisting an officer and obstructing an officer. Young pled not guilty and filed a motion to suppress all the evidence resulting from Alfredson's pursuit and capture of him. Young argued as follows: (1) he was illegally seized under the Fourth Amendment when Alfredson detained the vehicle and its occupants because Alfredson did not have the requisite reasonable suspicion under Terry as codified by Wis. Stat. § 968.24 (2001-02); (2) as a result, Young was free to depart the scene without further police intervention; and (3) consequently, all evidence obtained as a result of Alfredson's ensuing pursuit and capture of Young should be suppressed.

¶ 7. The trial court denied Young's motion, ruling that Alfredson had reasonable suspicion to detain the vehicle and its occupants. Therefore, the court reasoned that Alfredson was entitled to take up pursuit when Young exited the vehicle, failed to comply with Alfredson's orders to return to the vehicle, and then ran from the scene.

¶ 8. At the ensuing trial, a jury found Young guilty of all three counts. Young appeals from the judgments of conviction contending that the trial court erroneously denied his motion to suppress.

DISCUSSION

¶ 9. Young's argument on appeal tracks the argument he made in the trial court: (1) the occupants of the vehicle were illegally seized within the meaning of the Fourth Amendment because Alfredson did not have reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), as codified by Wis. Stat. § 968.24; and (2) therefore, he was free to leave the scene and all evidence resulting from the ensuing pursuit should have been suppressed.

¶ 10. We will assume for purposes of argument that Alfredson did not have the requisite reasonable suspicion under Wis. Stat. § 968.24 when he decided, in his words, to "stop" the vehicle. However, our assumption does not avail Young because we conclude under Hodari D. that Young was not seized within the meaning of the Fourth Amendment because he did not submit to Alfredson's show of police authority. Until such a submission occurs, Hodari D. holds that a person is not seized for purposes of the Fourth Amendment and therefore the person will not be heard to assert a Fourth Amendment violation. Hodari D., 499 U.S. at 629.

¶ 11. In Hodari D., the police were patrolling a high-crime area when they saw four or five youths, including Hodari, huddled around a car parked at a curb. Id. at 622. When the youths saw the police car, they fled on foot. Id. at 622-23. The car also departed at a high rate of speed. A police officer took up the chase of Hodari. Id. at 623. Just before the officer captured him, Hodari tossed away what appeared to be a small rock. Id. The investigation established that the rock was crack cocaine. Id.

¶ 12. Hodari moved to suppress the evidence. The State of California conceded that the police did not have "reasonable suspicion" under Terry to justify stopping Hodari. Hodari D., 499 U.S. at 623 n.1. The issue before the United States Supreme Court was "whether, at the time he dropped the drugs, Hodari had been 'seized' within the meaning of the Fourth Amendment." Id. at 623.

¶ 13. The Supreme Court began its discussion with the well-accepted principle that the Fourth Amendment's protection against unreasonable seizures includes seizure of the person. Id. at 624. However, the Court rejected the notion that the "slightest application of physical force, despite the arrestee's escape" constitutes a "continuing arrest during the period of fugitivity." Id. at 625 (emphasis omitted). The Court stated, "An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority." Id. at 626. Since Hodari had cast away the cocaine before he was apprehended and since he had not yielded to the police show of authority prior, thereto, the Court concluded the cocaine was not the fruit of a seizure. Id. at 629. Thus, after Hodari D., the focus is no longer on the legality of the police conduct; rather, the focus is on the conduct of the suspect in response to . the police conduct.

¶ 14. In so ruling, the Supreme Court rejected Hodari's argument based on the holding of United States v. Mendenhall, 446 U.S. 544, 554 (1980): "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." See Hodari D., 499 U.S. at 627 (quoting Mendenhall). Hodari D. interpreted this language as follows: "{Mendenhall) says that a person has been seized 'only if,' not that he has been seized 'whenever'; it states a necessary, but not a sufficient, condition for seizure ...." Hodari D., 499 U.S. at 628.

¶ 15. The Wisconsin Supreme Court adopted the Hodari D. standard in State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, 626 N.W.2d 777:

Not all police-citizen encounters are seizures. Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968)). A seizure occurs "when an officer, by means of physical force or a show of authority, restrains a person's liberty." State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996) (citing Terry, 392 U.S. at 19, n.16). Included in this test for a seizure is the requirement that when a police officer makes a show of authority to a citizen, the citizen yields to that show of authority. California v. Hodari D., 499 U.S. 621, 626 (1991).
We agree with the State and will follow the Hodari D. standard for when a seizure occurs.

Kelsey C.R., 243 Wis. 2d 422, ¶¶ 30, 33 (emphasis added).

¶ 16. Here, as in Hodari D., the police did not apply any physical force against Young prior to the actual capture. Also like Hodari D., Young did not submit to the police show of authority when Alfredson detained the vehicle and later ordered Young to return to the vehicle. Instead, Young initially walked away from the scene and later fled by running after Alfredson ordered him to return to the vehicle. Given those facts, Hodari D. precludes Young from raising his Fourth Amendment claim that Alfredson illegally detained the vehicle under Terry.

¶ 17. Young tries to distinguish Hodari D. on the basis of the degree of flight present in the two cases. In Hodari D., the youths fled immediately upon seeing the police. Here, Young exited the vehicle, began to walk away, and did not run until after Alfredson ordered him back into the vehicle. But that subtle difference in the facts does not permit us to evade the core holding of Hodari D. that a suspect who does not submit to the show of police authority in an illegal Terry stop will not he heard to assert a Fourth Amendment violation or rewarded with an order suppressing evidence obtained as the result of such claimed violation.

¶ 18. Although not argued by Young, we have also considered a further distinction between Hodari D. and this case. Hodari threw the cocaine away moments before the police captured him, whereas Young rid himself of the coat containing the drugs during the capture. However, we do not think the application of the Fourth Amendment should turn upon such temporal hairsplitting that allows for the admission of evidence discarded at a certain moment, but requires suppression of evidence discarded a split second later. Instead, it is the core holding of Hodari D. that governs this case: unless the suspect has yielded to the show of police authority, thereby producing a seizure under the Fourth Amendment, the suspect will not be heard to argue for suppression of evidence as a remedy for an illegal Terry detention. Here, as in Hodari D., Young failed to so yield, resulting in a pursuit that prompted him to discard the contraband. Under those circumstances, Hodari D. holds that the illegal police conduct under Terry does not bar the introduction of evidence resulting from the ensuing pursuit.

¶ 19. Although we uphold the trial court order denying Young's motion to suppress, we add that we are less than enthusiastic about the result that Hodari D. mandates in this case. The Supreme Court has recognized the right of a person to walk away from an encounter with a police officer that is not supported by probable cause or reasonable suspicion.

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objec tive grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.

Florida v. Royer, 460 U.S. 491, 497-98 (1983) (citations omitted; emphasis added).

¶ 20. However, after Hodari D., this supposed right to "go on his way" becomes an empty right because it vests the police with the authority to pursue and detain anew. In short, the person is penalized for legal conduct while the police are rewarded for illegal conduct.

¶ 21. True, the suspect does not have the benefit of a judicial declaration regarding the validity of the police conduct at the moment of the encounter, but neither do the police. Moreover, the suspect also faces serious consequences if the decision to walk away proves flawed. Not only will any evidence subsequently discovered be admissible, but also, as evidenced by this case, the suspect could well face charges for obstructing an officer and resisting an officer.

¶ 22. However, Hodari D. saw it otherwise:

Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed.

Hodari D., 499 U.S. at 627.

¶ 23. Remembering that Young was also convicted of resisting an officer and obstructing an officer pursuant to Wis. Stat. § 946.41(1), the Hodari D. approach also seems to fly in the face of established Wisconsin law governing these two crimes. Both crimes require the State to prove as an element that the officer was "doing any act in an official capacity and with lawful authority." Wis. Stat. § 946.41. "Lawful authority" goes to the question of whether the officer's actions "are conducted in accordance with the law." State v. Barrett, 96 Wis. 2d 174, 181, 291 N.W.2d 498 (1980). See also Wis JI — Criminal 1765. Therefore, if an officer is acting outside the law, such activity constitutes a defense to the charge of resisting or obstructing an officer. If a defendant's resistance to an officer is excused under those circumstances, we are left to wonder why a defendant may not rely on similar police conduct to assert a suppression of evidence claim based on a Fourth Amendment violation.

¶ 24. We observe that Hodari D. has inspired much criticism. See 4 Wayne R. LaFave, Search and Seizure § 9.3(d), at 124-32 (3d ed. 1996). One commentator has stated that the decision represents a manifestation of the Supreme Court's " 'surreal and Orwellian' view of personal security in contemporary America." Id. at 125 (citing Ronald J. Bacigal, The Right of the People to be Secure, 82 Ky. L.J. 145, 146 (1993)). LaFave also says that Hodari D. erroneously assumes that the common law determines the outer boundaries of the Fourth Amendment and that it fails to address other Supreme Court decisions more on point. 4 LaFave, supra, § 9.3(d), at 125-26. In addition, we have earlier noted that Hodari D. changes the focus of the inquiry as to whether a seizure has occurred. Under Mendenhall, we inquired whether, given the police conduct, a "reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554. Now, under Hodari D., it is not the police conduct that governs the inquiry; rather it is the suspect's reaction to the police conduct. LaFave agrees: "[W]hat would otherwise be a groundless and thus illegal Terry seizure becomes conduct totally outside the Fourth Amendment merely because of the suspect's nonsubmission." 4 LaFave, supra, § 9.3(d), at 128. LaFave also expresses concern that instead of discouraging illegal police conduct, Ho-dari D. may tempt the police to act on mere hunches, thereby inducing flight. 4 LaFave, supra, § 9.3(d), at 130.

¶ 25. Finally, the "fine tuning" that Hodari D. puts on the Mendenhall test for a seizure is problematic. Mendenhall said a person is seized "only if," in view of all the circumstances, a reasonable person would have believed that he or she was not free to leave. Mendenhall, 446 U.S. at 554. This test had been universally accepted as a proven and workable measure for determining when a seizure occurs. Contending that it does no violence to Mendenhall, Hodari D. says that "only if' does not mean "whenever." Hodari D., 499 U.S. at 628. As a result, according to Hodari D., Mendenhall states only a "necessary, but not a sufficient" condition for a seizure. Hodari D., 499 U.S. at 628 (emphases omitted). That refinement oí Mendenhall strikes us as strained and contrived, functionally overruling Men-denhall without saying so.

¶ 26. We rarely express our concerns about an opinion we are duty bound to follow, much less a United States Supreme Court opinion, but we question the wisdom and reasoning of Hodari D. for the reasons set forth above. We offer our thoughts in the hope that the Wisconsin Supreme Court, either in this case or a future case, might take a further look at Hodari D.

CONCLUSION

¶ 27. Because Young did not yield to the police show of authority at the time of the illegal Terry stop, Young is not entitled to complain about the ensuing police pursuit of him, which led to his resisting and obstructing of an officer and the discovery of the drug contraband. We therefore uphold the trial court's denial of Young's motion to suppress and affirm the judgments of conviction.

By the Court. — Judgments affirmed.

        Terry v. Ohio, 392 U.S. 1 (1968).

       In his testimony at the motion to suppress, Alfredson said he activated the "speed light" of his police squad. The State interprets this to mean the "spot light" of the vehicle. Young did not dispute this interpretation in his reply brief or at oral argument. We therefore adopt the State's interpretation.

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

       Although we do not decide this issue, we nonetheless harbor doubt that Alfredson had reasonable suspicion under Wis. Stat. § 968.24 to detain the vehicle or its occupants. We question whether, without more, the mere presence of five individuals in a parked car for a period of five to ten minutes at approximately midnight in an area of taverns and nightclubs constitutes reasonable suspicion that the occupants of the vehicle were committing, were about to commit, or had committed a crime or other violation. We take particular note that Alfredson did not testify to any observations suggesting that the occupants of the vehicle were engaging in any conduct related to the citizen complaints of debris and excessive noise. Nor did the occupants' conduct suggest any other criminal activity. As such, Alfredson's detention of the vehicle smacks more of an "unpar-ticularized suspicion or hunch" than solid reasonable suspicion. See State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996). Although defending the trial court's ruling that reasonable suspicion existed, the State acknowledged at oral argument that its Hodari D. argument represented its stronger argument. See California v. Hodari D., 499 U.S. 621 (1991).

       The majority opinion in Hodari D. drew a sharp dissent, see id. at 629-48 (Stevens, J., dissenting), particularly regarding the majority's interpretation of this language from United States v. Mendenhall, 466 U.S. 544 (1980) see Hodari D., 499 U.S. at 637-42.

       Although adopting Hodari D., much of the supreme court's ruling justifying the police apprehension of the subject in Kelsey C.R. rested on different grounds — the community caretaker role of the police. State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, ¶¶ 34-37, 626 N.W.2d 777.

       Young does not raise a sufficiency of evidence argument as to whether Alfredson was acting with lawful authority. Instead, his argument focuses on the trial court's ruling denying his motion to suppress all the evidence garnered as a result of the illegal Terry detention.

       As of this writing, a Westlaw search reveals sixty-five cases that reflect a negative treatment of Hodari D.

       The dissenters in Hodari D. expressed a related concern: "If carried to its logical conclusion, [the majority opinion] will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have." Hodari D., 499 U.S. at 646-47 (Stevens, J. dissenting).

       We say this fully aware that the Wisconsin Supreme Court has held that "the standards and principles surrounding the Fourth Amendment are generally applicable to the construction of [the Wisconsin Constitution]." State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998) (emphasis added). We leave to the supreme court whether this general rule should continue to bind the Wisconsin Constitution to Hodari D.


author: HIGGINBOTHAM, J.

text:
    Wisconsin Bell, Inc., d/b/a Ameritech Wisconsin, Petitioner-Appellant, v. Public Service Commission of Wisconsin, Respondent-Respondent.
    Court of Appeals

      No. 03-2235.

      Submitted on briefs April 22, 2004.

    Decided November 18, 2004.

    2004 WI App 223
    (Also reported in 691 N.W.2d 697.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Linda M. Clifford and Jennifer Cotner of La Follette, Godfrey & Kahn, Madison, with Steven R. Beck of SBC Wisconsin, Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief oí Michael E. Newmark and Edward S. Marion of Public Service Commission of Wisconsin, Madison.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. Wisconsin Bell, d/b/a Ameritech Wisconsin, appeals an order of the circuit court affirming a final decision and order of the Public Service Commission (PSC) concluding that Ameritech's Local Saver Packs and Solutions Packages (Packages) are subject to price regulation by the PSC under Wis. Stat. ch. 196 (2001-02). Ameritech argues that the PSC misinterpreted Wisconsin law and acted beyond its statutory authority by imposing price regulation on its Packages. We agree and reverse the order of the circuit court.

FACTS

¶ 2. The facts are undisputed. Prior to 1994, telephone service was subject to rate-of-return regulation. The PSC awarded a rate of return on a company's business investment and set the company's prices in return for granting the company an exclusive right to provide telephone services within a given territory.

¶ 3. Departing from traditional rate-of-return regulation, 1993 Wis. Act 496 partially deregulated the telecommunications industry in Wisconsin, establishing a new regulatory model to transition to a more competitive local telecommunications marketplace. The principal feature of 1993 Wis. Act 496 was the creation of new forms of regulation, such as price regulation, to replace the traditional rate-of-return regulation. Price regulation limits the PSC's jurisdiction over all but certain basic telecommunications services. 1993 Wis. Act 496 created Wis. Stat. § 196.196, which established "price regulation" as an alternative to the more rigid rate-of-return system. In September 1994, Ameritech elected to be subject to price regulation under § 196.196. In doing so, Ameritech submitted to the PSC's price regulation jurisdiction over prices it can charge for "basic local exchange service" in exchange for a substantial reduction of PSC jurisdiction over the prices, terms and conditions for "any other services" it offers, including "new telecommunications services." See § 196.196(3)(a).

¶ 4. Between September 1994 and October 2001, an Ameritech customer had only one way to acquire telephone service: purchase, under pre-existing price-regulated tariffs, a working telephone access line and local calling usage at a per-call rate. In October 2001, Ameritech introduced two new types of alternative services for residential customers: Local Saver Packs and Solutions Packages.

¶ 5. Local Saver Packs charge a flat monthly rate, rather than a per-call rate, for basic local exchange service. Local Saver Packs come in three sizes: Local Saver Pack 200, Local Saver Pack 400 and Local Saver Pack Unlimited. The names of the packages reflect the number of local calls included in the package. The cost of each respective Local Saver Pack was less than the cost of purchasing the same number of local calls at the pre-existing, price-regulated per-call rate.

¶ 6. Solutions Packages charge a flat monthly rate for basic local exchange service combined with additional services. Ameritech offered four types of Solutions Packages: Economy, Sensible, Complete and Two Line Complete. Each Solutions Package included an access line, a Local Saver Pack, an intraLATA toll calling plan, Caller ID with name and Call Waiting. The Solutions Packages differed based upon the additional services, as indicated below:

¶ 7. Like the Local Saver Pack customer, a Solutions Package customer purchaser enjoyed a discount compared to purchasing the components on a standalone basis under the pre-existing price-regulated rates. With both the Local Saver Pack and Solutions Packages, an Ameritech customer was still able to purchase basic local exchange telephone services on a per-call basis, as before, under pre-existing price-regulated tariffs or, in the alternative, purchase one of the new flat-rate Packages. Ameritech filed tariffs that described the prices, terms, rate structures and conditions of the Packages.

¶ 8. The rate structure for basic local exchange service includes a recurring monthly rate for the primary residential access line and a per-call rate for each call made within the customer's local exchange or extended service area boundary. This rate structure continues to be available to both new and existing Ameritech customers and Ameritech acknowledges this rate structure continues to remain subject to the PSC's price regulation authority.

¶ 9. Each year a price-regulated telecommunications utility is obligated to file information with the PSC regarding revenues, investment and service quality. Wis. Admin. Code § PSC 163.04. Using the investment and service quality information, the PSC calculates the utility's annual "price cap index" or PCI. Then, using the revenue information, the PSC applies the PCI to control the amount the utility may increase or must decrease the rates. Wis. Admin. Code § PSC 163.04. The PCI limits the prices the utility may charge for its price-regulated services.

¶ 10. In August 2002, Ameritech filed its annual price regulation information reflecting "Grand Total Residence and Business Revenues" of $208,042,546. This figure did not include revenues generated from the Packages. At the PSC's request, Ameritech filed Comments on whether its Packages were subject to price regulation. Ameritech's Comments asserted that Wis. Stat. § 196.196(3)(a) expressly exempts from PSC jurisdiction "other services, including new telecommunications services, offered by a price-regulated telecommunications utility." Ameritech's Comments contended that the Packages fit the § 196.19(lm)(a) definition of "new telecommunications services" because they were "alternative rate structures" offered after 1993 for any pre-existing telecommunication service and the rate structure effective prior to January 1, 1994 for the pre-existing service continued to be available to both new and existing costumers. According to Ameritech, because the express jurisdictional limitations in § 196.196(3)(a) cross-reference the § 196.19(lm) definition of "new telecommunication services," the Packages fell outside the PSC's jurisdiction.

¶ 11. Ameritech's Comments further argued that the Packages did not constitute "basic local exchange service" subject to regulation under Wis. Stat. § 196.196(l)(a) because as "discretionary or optional services," they were expressly excluded from the Wis. Stat. § 196.01(lg) definition of "basic local exchange service."

¶ 12. In a November 1, 2002 Final Decision, the PSC rejected Ameritech's interpretation of Wis. Stat. §§ 196.196(1)(a) and (3)(a) and concluded that the Packages were subject to price regulation because "no definition of 'new telecommunication service' is found in the definitions section of Chapter 196, or in Wis. Stat. § 196.196" and the definition of "new telecommunications service" in Wis. Stat. § 196.19(lm)(a) did not apply to § 196.196(3)(a). The Final Decision did not price regulate all the Packages but limited price regulation to the Local Saver Packs and the access line and local usage components of the Solutions Packages. As a result of its PCI calculations, the Final Decision ordered Ameritech to "file tariffs that decrease its rates by an average of 1.22 percent for price-regulated services." In order to implement the 1.22% decrease on the Packages' revenues, the PSC required Ameritech to "supplement its annual revenue report to include those offerings."

¶ 13. On November 27, 2002, Ameritech filed a petition for Wis. Stat. ch. 227 review of the PSC's Final Decision. On July 9, 2003, the circuit court issued a decision affirming the PSC's Final Decision, concluding that the Packages were subject to price regulation. Ameritech appeals.

DISCUSSION

Standard of Review

¶ 14. We review the PSC's decision, not that of the circuit court. Wisconsin Bell, Inc. v. PSC of Wisconsin, 2004 WI App 8, ¶ 16, 269 Wis. 2d 409, 675 N.W.2d 242, review granted, 2004 WI 50, 271 Wis. 2d 108, 679 N.W.2d 544 (No. 02-3163). Here, Ameritech and the PSC debate the degree of deference we owe the PSC's decision. Ameritech argues the PSC's decision is entitled to no deference because this case concerns whether the PSC exceeded its authority and jurisdiction by regulating rates for "new telecommunications services." The PSC argues we should accord its decision great weight because it was not determining the scope of its authority. According to the PSC, the issue before it was whether the basic service portions of the Packages are price regulated, which, according to the PSC, is not an issue addressing the scope of the PSC's authority but a question of statutory interpretation and application to an uncontested set of facts.

¶ 15. Where an agency's decision involves the nature and scope of its own authority and jurisdiction, a question of law, we review its decision de novo. See Wisconsin Power & Light Co. v. PSC, 181 Wis. 2d 385, 392, 511 N.W.2d 291 (1994). We agree with Ameritech that the issue presented is one determining the scope of the PSC's authority and jurisdiction and conclude the PSC's decision is entitled to de novo review. The question before us may involve the interpretation of the statutory price regulation scheme but the critical element of that question concerns only whether the PSC has the authority under Wis. Stat. § 196.196(3)(a) to price regulate the Packages. Thus, this is a jurisdictional question subject to de novo review. See Wisconsin Power, 181 Wis. 2d at 392.

¶ 16. Ameritech next argues that the PSC misinterpreted Wisconsin law and acted beyond its statutory authority by imposing price regulation on its Packages. Ameritech maintains that the plain language of the applicable statutes unambiguously support the conclusion that the Packages are exempt from price regulation. We agree.

¶ 17. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. The Kalal court noted that "^judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language." Id.

¶ 18. When interpreting a statute, we first look to the plain meaning of the statute. Keup v. DHFS, 2004 WI 16, ¶ 17, 269 Wis. 2d 59, 675 N.W.2d 755. When the statutory language is clear and unambiguous, we may not look beyond the plain words of the statute in question to ascertain its meaning. Id. To determine if a statute is ambiguous, we look to the statutory language itself. Id. Statutory language is given its usual and common meaning while technical or specialized terms are interpreted according to their unique meanings. Id. We are to interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Kalal, 271 Wis. 2d 633, ¶ 46 (citations omitted).

¶ 19. If the statute is unambiguous, we must give reasonable effect to the words within the statute according to their common meanings; we are to avoid surplusage. Id. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656.

¶ 20. The general rule has been that we do not review extrinsic sources, such as legislative history, its scope, history, context and purpose of the statute, unless there is ambiguity. Keup, 269 Wis. 2d 59, ¶ 17. However, the supreme court in Kalal instructs us that "scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history." Kalal, 271 Wis. 2d 633, ¶ 48. With these principles in mind we turn our attention to determine whether the PSC exceeded its authority by regulating the price of Ameritech's Packages.

Analysis

¶ 21. Wisconsin Stat. § 196.196 addresses telecommunications utility price regulation and "governs rates for basic local exchange service." Wis. Stat. § 196.196(l)(a)l. "Basic local exchange service" is defined as

the provision to residential customers of an access facility, whether by wire, cable, fiber optics or radio, and essential usage within a local calling area for the transmission of high-quality 2-way interactive switched voice or data communication. 'Basic local exchange service' includes extended community calling and extended area service. 'Basic local exchange service' does not include additional access facilities or any discretionary or optional services that may be provided to a residential customer. 'Basic local exchange service' does not include cable television service or services provided by a commercial mobile radio service provider.

Wis. Stat. § 196.01(lg).

¶ 22. Wisconsin Stat. § 196.196, entitled "Telecommunications utility price regulation," expressly exempts "new telecommunications services" from price regulation:

(3) PRICE Regulation of otheR SERVICES, (a) Except to the extent expressly permitted by this section and ss. 196.19(lm), 196.194, 196.195, 196.20(lm), 196.204, 196.209 and 196.219, the commission may not have jurisdiction over the prices or terms and conditions for the offering of any other services, including new telecommunications services, offered by a price-regulated telecommunications utility.

(Emphasis added.) "New telecommunications services" is not defined in § 196.196. However, it is defined in Wis. Stat. § 196.19(lm)(a) as

services that are not offered by the telecommunications utility before January 1, 1994, and alternative rate structures offered after December 31, 1993, for any telecommunications service that is offered before January 1, 1994, if the rate structure effective before January 1, 1994, continues to be available to new and existing customers. 'New telecommunications service includes additional functions and features on, and technological alternatives to, any telecommunications service offered before January 1, 1994.

(Emphasis added.)

¶ 23. The PSC asserts that the Packages do not qualify as "new telecommunication services" because the Wis. Stat. § 196.19(lm)(a) definition of "new telecommunication services" cannot apply to Wis. Stat. § 196.196(3)(a). The PSC argues that § 196.19(lm)(a) explicitly limits its definition of "new telecommunications services" to "this subsection," meaning the subsection of § 196.19(lm), and that by reading the definition of "new telecommunications service" as provided by § 196.19(lm)(a) into § 196.196(3)(a), a conflict is created within § 196.196(3)(a). The PSC contends § 196.196 cannot sensibly be read to confer regulatory authority by the PSC over basic local exchange services and then take that authority away by allowing basic local exchange services to be renamed "new" services. We disagree with each contention.

¶ 24. The entire section of a statute and related sections should be considered in its construction or interpretation; we do not read statutes out of context. Abbas v. Palmersheim, 2004 WI App 126, ¶ 18, 275 Wis. 2d 311, 685 N.W.2d 546, review dismissed, 2004 WI 138, 276 Wis. 2d 26, 689 N.W.2d 55 (Wis. Nov. 22, 2004) (Nos. 02-3390, 03-1267). In determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute and related sections. Id. Statutes relating to the same subject matter are to be construed together and harmonized. Id. We must interpret statutes to effectuate the purpose of the whole act; a construction that will defeat the manifest object of the act is disfavored. Id. These rules guide our consideration of the interplay of the statutes at issue here.

¶ 25. Wisconsin Stat. § 196.196(3)(a) expressly cross-references Wis. Stat. § 196.19(lm), which contains the only definition of "new telecommunications services" in Wis. Stat. ch. 196. Such cross-referencing therefore incorporates the terms of § 196.19(lm) into § 196.196(3)(a)'s provisions. See Layton Sch. of Art & Design v. Wisconsin Employment Relations Comm'n, 82 Wis. 2d 324, 337-38, 262 N.W.2d 218 (1978). By virtue of this reference, § 196.19(lm)'s definition of "new telecommunication services" has been expressly written into § 196.196(3)(a). Section 196.19(lm)(a)'s use of the phrase "in this subsection" merely specifies that the definition applies in this subsection; it does not in any way limit that definition to that subsection only. To conclude otherwise would essentially render § 196.196(3)(a)'s reference to § 196.19(lm) a nullity.

¶ 26. In addition, both Wis. Stat. § 196.196(3)(a) and Wis. Stat. § 196.19(lm) are unambiguous in the context of Wis. Stat. ch. 196 as a whole. Only three statutes use the phrase "new telecommunications services:" Wis. Stat. §§ 196.196(3)(a), 196.19(lm) and 196.209. All three sections were created at the same time. See 1993 Wis. Act 496. However, "new telecommunications services" is defined only in § 196.19(lm)(a). When the legislature uses the same term repeatedly in the same statute, it almost certainly intends the term should mean the same each time it is used. Coutts v. Wisconsin Ret. Bd., 209 Wis. 2d 655, 668-69, 562 N.W.2d 917 (1997). In other words, when we are required to construe a statute, "the entire section and related sections are to be considered in its construction or interpretation." State v. Clausen, 105 Wis. 2d 231, 244, 313 N.W.2d 819 (1982). Application of this rule leads us to conclude that the definition of "new telecommunications services" as stated in Wis. Stat. § 196.19(lm)(a) applies to Wis. Stat. § 196.196(3)(a).

¶ 27. If we do not apply Wis. Stat. § 196.19(lm)(a)'s definition of "new telecommunications services" to Wis. Stat. § 196.196(3)(a), § 196.19(lm)(a) provides an incomplete regulatory treatment of "new telecommunications services." Alone, § 196.19(lm) only addresses the creation of "new telecommunications services" and does not address the regulation of "new telecommunications services." Section 196.196(3) accomplishes this mission by allowing a company to change rates for existing "new telecommunications services" with only limited tariff and customer notice requirements. See §§ 196.196(3)(b) and (c). By incorporating § 196.19(lm) into § 196.196(3)(a), a complete regulatory scheme is established.

¶ 28. The PSC next argues that if Ameritech is permitted to recraft its basic local exchange services into "new" services by simply adding other services and new rates while retaining basic local exchange services, that would be conferring price-regulated utilities the power to unilaterally abandon price regulation of basic local exchange services. The PSC appears to misunderstand its own regulation.

¶ 29. The legislature intended to create incentives to telecommunications providers such as Ameritech by directing the PSC to

regulate all telecommunications utilities with the goal of developing alternative forms of regulation that provide incentives to the utility to achieve specified goals, including the promotion of competition, infrastructure deployment, economic development and consumer choice.

John Stolzenberg, "Summary of LRB-6015/1, Relating to Regulations Affecting the Telecommunications Industry," Wisconsin Legislative Council Staff Memorandum to the Joint Committee On Information Policy, Introduction at 1, 2 (April 18, 1994). To that end, the legislature enacted 1993 Wis. Act 496. Act 496 created Wis. Stat. § 196.196, which established price regulation as an alternative to the rate-of-return system in place at that time. Section 196.196(1)(d) expressly permits a price-regulated telecommunications utility to alter the rate structure for a price-regulated service, so long as the pre-existing rate structure continues to be offered. The Packages were created as alternative services for residential customers; the pre-existing rate structure for basic local exchange services has not been affected by the introduction of these "new" service packages. The rate structure for basic local exchange services has been in effect since before December 31, 1993 and continues to be available to new and existing Ameritech Wisconsin customers. The PSC continues to regulate these prices.

¶ 30. The Packages fall squarely within the definition of "new telecommunications services" under Wis. Stat. § 196.19(lm)(a); they are alternative rate structures to basic local exchange services offered after 1993 and the rate structure effective before January 1,1994 for pre-existing telecommunications services continues to be available to customers. The new services provided in the Packages include "additional functions and features" on the basic local exchange services that were offered prior to January 1, 1994 by charging a flat monthly rate, rather than a per-call rate, for basic local exchange services (Local Saver Packs) and by charging a flat monthly rate for basic local exchange services combined with additional services (Solutions Packages). Therefore, because the definition of "new telecommunications services" as provided by § 196.19(lm)(a) encompasses the Packages by Ameritech, and because that definition is cross-referenced in Wis. Stat. § 196.196(3) (a) which limits the PSC's rate-regulation jurisdiction, we conclude the PSC exceeded its jurisdiction by regulating the rate structure of the Packages.

CONCLUSION

¶ 31. We conclude that the definition of "new telecommunications services" in Wis. Stat. § 196.19(lm) is unambiguously incorporated into Wis. Stat. § 196.196(3)(a). We also conclude the Packages fall within the definition of "new telecommunications services" because they offer alternative rate structures and expanded services beyond the basic local exchange service in existence since before December 31, 1993. Consequently, Ameritech's Packages are exempt from price regulation under § 196.196(3)(a). We therefore reverse the order of the circuit court.

By the Court. — Order reversed.

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

       Ameritech argues that the Packages are exempt from price regulation because they are "discretionary" or "optional" services. Because our conclusion that the Packages are "new telecommunications services" as defined by Wis. Stat. § 196.19(lm)(a) and therefore exempt from price regulation under Wis. Stat. § 196.196(3)(a) is dispositive, we will not address this issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938).

       Then-Wisconsin Governor Tommy Thompson convened a Blue Ribhon Telecommunications Infrastructure Task Force, which issued a number of recommendations. Recommendation 1.1 states
      The PSC of Wisconsin should take a proactive role in developing a competitive telecommunications marketplace, and facilitating the introduction of innovative new services in this competitive marketplace.
      John Stolzenberg, "Summary of LRB-6015/1, Relating to Regulations Affecting the Telecommunications Industry," Wisconsin Legislative Council Staff Memorandum to the Joint Committee On Information Policy, Introduction at 1,2 (April 18,1994). The Bill, LRB-6015/1, was designed to implement the recommendations of the task force.


author: LUNDSTEN, J. DYKMAN, J. (concurring).

text:
    State of Wisconsin ex rel. David C. Myers, Petitioner-Appellant,  v. Daren Swenson, Respondent-Respondent.
    Court of Appeals

      No. 03-2406.

      Submitted on briefs March 18, 2004.

    Decided November 18, 2004.

    2004 WI App 224
    (Also reported in 691 N.W.2d 357.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of David C. Myers, pro se.

    On behalf of the respondent-respondent, the cause was submitted on the brief of Bruce D. Huibregtse and Christopher T Sundberg of Stafford Rosenbaum LLP, Madison.
    A nonparty brief was filed by Charles D. Hoornstra, assistant attorney general, and Peggy A. Lauten-schlager, attorney general, for The Wisconsin Department of Corrections.
    Before Deininger, PJ., Dykman and Lundsten, JJ.

      Petition to review denied.

       Wisconsin Stat. § 302.18(5) provides: "Any person who is legally transferred by the department to a penal institution shall be subject to the same statutes, regulations and discipline as if the person had been originally sentenced to that institution, but the transfer shall not change the term of sentence."

   LUNDSTEN, J.

¶ 1. David Myers, a Wisconsin inmate, appeals an order dismissing his action for certiorari review of an out-of-state prison disciplinary decision and quashing the trial court's previously issued writ. Myers was disciplined while in a Minnesota prison. He challenges the trial court's ruling that it lacked competency to review the out-of-state disciplinary proceeding. Myers also raises an equal protection challenge to statutes that authorize review of out-of-state disciplinary actions by the courts of the state in which discipline is imposed. We agree with the trial court that it lacked competency to review the matter, and we also reject Myers' equal protection challenge. Accordingly, we affirm.

Background

¶ 2. In his certiorari petition, Myers alleges that he is a Wisconsin inmate confined at the Prairie Correctional Facility in Minnesota. Myers claims that prison officials in Minnesota, without affording procedural protections Myers believes are required under the Wisconsin Administrative Code, issued him a disciplinary report and subsequently found him guilty of conspiracy and threatening the safety of others. Myers' certiorari petition also alleges that he exhausted his administrative remedies in Minnesota because he filed two appeals with Minnesota prison officials and that any further action in Minnesota would be futile.

¶ 3. Myers subsequently filed a "motion to expand coverage," apparently seeking to amend his petition to add a civil rights claim under 42 U.S.C. § 1983. In this filing, Myers alleges that Minnesota officials were deliberately indifferent to his medical needs in that they denied him medications. The filing further asserts that Myers has an equal protection right to enjoy the same procedural safeguards as Wisconsin inmates housed in-state subject to the Wisconsin Administrative Code. There is nothing in the docket entries or record before us indicating that the trial court ever explicitly ruled on this "motion to expand coverage."

¶ 4. Before submitting a return, the warden moved to quash the writ and dismiss the action. After briefing by the parties, the trial court granted the motion to quash, concluding that the court lacked competency to review the disciplinary decision and lacked personal jurisdiction over the warden.

¶ 5. Myers appeals and argues before this court that Wisconsin must retain competency and personal jurisdiction to review matters affecting Wisconsin inmates incarcerated in Minnesota because it would be futile for such inmates to seek relief in Minnesota and because the equal protection clause requires that all Wisconsin inmates be subject to the same rules.

Standard of Review

¶ 6. A motion to quash a writ of certiorari is akin to a motion to dismiss. Fee v. Board of Review, 2003 WI App 17, ¶ 7, 259 Wis. 2d 868, 657 N.W.2d 112. Both a motion to quash and a motion to dismiss test the legal sufficiency of the facts alleged in the complaint. We review such motions de novo. We also independently determine whether a court has competency to proceed and whether a statute is constitutional. State v. Pharm, 2000 WI App 167, ¶ 11, 238 Wis. 2d 97, 617 N.W.2d 163 (standard of review for competency); Maurin v. Hall, 2004 WI 100, ¶ 93, 274 Wis. 2d 28, 682 N.W.2d 866 (standard of review for constitutionality), reconsideration denied, 2004 WI 129 (No. 00-0072). We will uphold the constitutionality of a statute unless the party challenging it demonstrates its unconstitutionality beyond a reasonable doubt. Maurin, 274 Wis. 2d 28, ¶ 93.

Discussion

Availability of Certiorari Review

¶ 7. The respondent in this case is Daren Swen-son, warden of the Prairie Correctional Facility in Minnesota. The Wisconsin Department of Corrections is not a party to this action, but has submitted an amicus brief taking essentially the same positions as Warden Swenson. Neither Warden Swenson nor the Department disputes that Wisconsin courts have general subject matter jurisdiction that ordinarily permits them to review, by certiorari, disciplinary decisions regarding Wisconsin inmates. Both Warden Swenson and the Department contend, however, that the legislature has enacted a statutory scheme which limits the ability of Wisconsin courts to exercise that subject matter jurisdiction in certiorari cases — that is, deprives Wisconsin courts of competency to proceed — when the disciplinary action occurs outside of the state. See generally Fabyan v. Achtenhagen, 2002 WI App 214, ¶ 7, 257 Wis. 2d 310, 652 N.W.2d 649 (" 'Although a court is vested with subject matter jurisdiction by the constitution, the legislature may enact statutes which limit a court's power to exercise subject matter jurisdiction. Such legislative measures affect a court's competency rather than its jurisdiction.'" (quoting State v. Bollig, 222 Wis. 2d 558, 566, 587 N.W.2d 908 (Ct. App. 1998) (interned citations omitted))).

¶ 8. Myers appears to argue that the Wisconsin courts retain the ability to conduct certiorari review of a Wisconsin inmate's due process or equal protection challenge to a disciplinary action, even if the challenge involves conduct and a disciplinary proceeding that took place while the inmate was housed out of state. However, certiorari review of administrative proceedings is available only "when no legislative provision establishes how review may be had." State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶ 12, 256 Wis. 2d 787, 650 N.W.2d 43. Thus, if our legislature has provided a means of judicial review, Myers may not bypass that means and seek relief through certiorari review.

¶ 9. In general, a means of reviewing an out-of-state disciplinary proceeding is provided by Wis. Stat. § 302.02(3t) (2001-02). That section provides:

Institutions located in otheR states. For all purposes of discipline and for judicial proceedings, each institution that is located in another state and authorized for use under s. 301.21 and its precincts are considered to be in the county in which the institution is physically located, and the courts of that county have jurisdiction of any activity, wherever located, conducted by the institution.

Thus, the legislature has provided that when a Wisconsin inmate is disciplined while at an out-of-state prison, judicial review of that disciplinary action may proceed in the state where the prison is located. Curtis, 256 Wis. 2d 787, ¶ 12. It follows that Wisconsin courts generally lack competency to conduct certiorari review of out-of-state disciplinary proceedings.

¶ 10. Although this is the general rulé, we recognized in Curtis that exceptions may be made in "unique circumstances." Id., ¶¶ 12-13. We concluded in Curtis that the "unique circumstances in [the] case precluded [Wis. Stat. § 302.02(3t)] from affording the inmates judicial review in Tennessee" because the Wisconsin inmates lacked "access to the Tennessee courts." Id., ¶¶ 7,12. We said: "Because no statutory provision for judicial review of a prison disciplinary decision applied to the inmates in this case, we conclude that Wisconsin courts may review the Whiteville disciplinary decision by certiorari." Id., ¶ 13.

¶ 11. We take this opportunity to elaborate on Curtis. First, the burden is on the certiorari petitioner to show facts sufficient to establish that the Wisconsin court is competent to proceed.

¶, 12. Second, the certiorari petitioner must present evidence showing that an out-of-state court dismissed a disciplinary review action on grounds that the court lacked jurisdiction or competency to review the matter; it is not sufficient to merely allege that out-of-state judicial review was unavailable. A petitioner may make a prima facie showing by providing, along with the initial filing of the certiorari petition, a copy of a decision from a court of the state in which he or she was incarcerated which shows or plainly implies that that court has concluded it lacks jurisdiction or competency to proceed. The fact that an out-of-state court may have dismissed an action as time-barred or for some other procedural defect does not show that judicial review is unavailable in that state. Once an out-of-state court has dismissed a Wisconsin inmate's action for lack of jurisdiction or competency to proceed, however, the inmate need not attempt further judicial review in that state.

¶ 13. Third, whether another state has determined that it lacks jurisdiction or competency to review a disciplinary, action involving a Wisconsin inmate presents a factual issue. A respondent might choose to contest the inmate's prima facie showing, in which case the trial court must resolve, as a factual matter, whether a court in the other state determined that it lacked jurisdiction or competency to review the inmate's challenge.

¶ 14. Applying these requirements to this case, we conclude that Myers has failed to make a prima facie showing that he is entitled to certiorari review in Wisconsin. Myers did not seek judicial review in Minnesota. Instead, while still in Minnesota, he filed his certiorari action in Wisconsin. Because Myers never sought judicial review in Minnesota, he never obtained a court decision asserting a lack of jurisdiction or competency to review the matter in that state. Since Myers did not show that judicial review in Minnesota was unavailable because a court there concluded that it lacked jurisdiction or competency, Myers has failed to show that judicial review was unavailable under Wis. Stat. § 302.02(3t). Consequently, Myers has failed to show that Wisconsin courts have competency to entertain his certiorari action.

Equal Protection

¶ 15. Myers argues that Wis. Stat. §§ 301.21(2m)(b) and 302.18(5), provisions which establish that inmates housed out of state are subject to the laws and regulations of the host state with regard to conditions of confinement, violate the equal protection clause. To the extent that Myers is arguing his disciplinary action should have been subject to the procedures of the Wisconsin Administrative Code (a choice of law issue), his claim goes to the merits of his certiorari action, which we have already determined we lack competency to review. However, because Myers' discussion of the equal protection clause is replete with references to the availability of judicial review in Wisconsin, we will liberally construe his argument as also challenging the constitutionality of Wis. Stat. § 302.02(3t), the statute that is most relevant to the ability of a Wisconsin court to review out-of-state disciplinary decisions.

¶ 16. " 'The equal protection clause of the fourteenth amendment is designed to assure that those who are similarly situated will be treated similarly.' Where the State is not discriminating based upon a suspect classification, the classification need only bear a rational relationship to a legitimate government interest." State ex rel. Saffold v. Schwarz, 2001 WI App 56, ¶ 8, 241 Wis. 2d 253, 625 N.W.2d 333 (citation omitted).

¶ 17. The two classes at issue here are Wisconsin prisoners housed within this state, and Wisconsin prisoners housed out of state pursuant to contracts with the Department of Corrections. We see nothing in these classifications that would trigger the need for heightened constitutional scrutiny. Cf. Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990) (noting that prisoners are not themselves a suspect class). We therefore apply the rational relationship test.

¶ 18. The government has a legitimate interest in allocating judicial resources in an efficient manner. Given that Wis. Stat. §§ 301.21(2m)(b) and 302.18(5) subject prisoners who are transferred out of state to the laws of the host state, it would not be efficient to require Wisconsin courts to familiarize themselves with the laws of multiple jurisdictions when the courts of those jurisdictions would presumably already be well-versed in their own laws. It would also not be efficient for Wisconsin courts to attempt to review disciplinary actions which occurred out of state when the pertinent records and decision makers are located in that other state. In sum, we are satisfied that allowing the courts of other states to resolve disputes over prison disciplinary actions which occurred within their borders is entirely rational. Myers has failed to establish that Wis. Stat. § 302.02(3t) is unconstitutional.

Conclusion

¶ 19. Wisconsin Stat. § 302.02(3t) deprives Wisconsin courts of competency to entertain certiorari actions seeking review of out-of-state prison disciplinary decisions unless a petitioner can show that he was denied judicial review on jurisdictional or competency grounds in the state where the disciplinary action occurred. Because Myers did not attempt to obtain judicial review in Minnesota, and has failed to show that § 302.02(3t) is unconstitutional, we conclude that the trial court correctly determined that it lacked competency to review Myers' disciplinary action. In light of that determination, we do not address whether the trial court may also have lacked personal jurisdiction over the warden.

By the Court. — Order affirmed.

DYKMAN, J. (concurring).

¶ 20. I believe that the rule regarding prison litigation arising out of foreign imprisonment is this: If a Wisconsin prisoner in a foreign jurisdiction can obtain foreign judicial review of an administrative decision of prison officials, this deprives Wisconsin courts of the authority to review the administrative decision. State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶¶ 12-14, 256 Wis. 2d 787, 796, 650 N.W.2d 43. But when the prisoner is unable to obtain judicial review through foreign courts, he or she may do so in Wisconsin courts. Id.

¶ 21. I do not read Curtis as discussing jurisdiction, power, standing or competency. Its rationale is that because no statutory provision for judicial review existed, the inmates were entitled to a Wisconsin cer-tiorari review of the disciplinary decision of a private foreign prison. It is undisputed that the prisoners in Curtis were wholly prohibited from litigating in the courts of the jurisdiction where they were incarcerated. This analysis merely restates the well-known concept that where there is no legislatively provided review of an administrative agency's acts, review is by certiorari. Curtis, 256 Wis. 2d 787, ¶ 12.

¶ 22. This case is the next step, and the question is how a Wisconsin court determines that a prisoner lacks access to a foreign court. That issue was not present in Curtis because it was undisputed that the prisoners lacked access to a foreign court.

¶ 23. The majority first asserts that the burden of showing inaccessibility is on the prisoner. I agree. And I agree that a prisoner's failure to timely take an appeal to a foreign court usually does not entitle the prisoner to a Wisconsin review. But the majority takes an unprecedented step to prevent Wisconsin judicial review of foreign prison conditions of confinement decisions by "elaborating" on Curtis. Curtis does not support the majority's conclusion that

the certiorari petitioner must present evidence showing that an out-of-state court dismissed a disciplinary review action on grounds that the court lacked jurisdiction or competency to review the matter; it is not sufficient to merely allege that out-of-state judicial review was unavailable.

Majority, ¶ 12.

¶ 24. The majority provides no citation for this conclusion. In Curtis, the inmates alleged that judicial review of a disciplinary decision by officials of a Tennessee private prison was unavailable, and the State did not challenge that allegation. Curtis, 256 Wis. 2d 787, ¶ 14 n.7. The majority is half correct. Allegations alone are not enough to obtain Wisconsin judicial review. But the reasons supporting the allegations may or may not show that foreign judicial review is unavailable. In Curtis, the allegations were sufficient because the prisoners' filings were dismissed with the explanation: "Please be advised that since you are now a resident of the State of Wisconsin you will need to make your filings in the State of Wisconsin." Id., ¶ 6. But in each case it will be necessary to examine why the prisoner believes foreign judicial review is unavailable. Only then can a court determine whether a prisoner's assertions are correct, as they were in Curtis.

¶ 25. Next, the majority concludes: "Third, whether another state has determined that it lacks jurisdiction or competency to review a disciplinary action involving a Wisconsin inmate presents a factual issue." Majority, ¶ 13. Again, this is half correct. It is a question of fact whether a court has addressed a jurisdictional question. But that ignores a second question: Whether a court in another state has jurisdiction or competence to address conditions of confinement cases arising out of a private prison. This second question is the important one.

¶ 26. It is beyond question that jurisdiction, competence and related issues are questions of law. In Matlin v. City of Sheboygan, 2001 WI App 179, ¶ 4, 247 Wis. 2d 270, 634 N.W.2d 115, we put it plainly: "Whether a court has jurisdiction is a question of law that we determine independently." In Precision Erecting v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 295, 592 N.W.2d 5 (Ct. App. 1998), we noted: "Whether a Wisconsin court has personal jurisdiction over a nonresident defendant is a question of law we review de novo." In Town of Delafield v. Winkelman, 2004 WI 17, ¶ 14, 269 Wis. 2d 109, 675 N.W.2d 470, the court said: "As a threshold matter, we must examine the issue of subject matter jurisdiction. Whether a court has subject matter jurisdiction of a particular action is a question of law, subject to independent appellate review." Reilly v. Waukesha County, 193 Wis. 2d 527, 534, 535 N.W.2d 51 (Ct. App. 1995), reads: "Whether the trial court had competency to decide Winkelman's impact on Reilly's wrongful-discharge claim after remand from the federal district court is a question of law that we review de novo."

¶ 27. Power and standing are no different. In Olson v. Kaprelian, 202 Wis. 2d 377, 381, 550 N.W.2d 712 (Ct. App. 1996), we noted: "An issue involving the scope of the trial court's power is a question of law which we review independently." As to standing, "[wjhether a person has standing to participate in an action or proceeding is a question of law that we review de novo." Carla S. v. Frank B., 2001 WI App 97, ¶ 5, 242 Wis. 2d 605, 609, 626 N.W.2d 330.

¶ 28. The result the majority and I reach is the same, though our analyses are very different. The majority concludes that because Myers did not seek judicial review in Minnesota, he has failed to show that a Wisconsin court has competency to decide the issue he raises. I conclude as a matter of law that a Minnesota District Court has competency to review a private prison administrator's decision arising out of a conditions of confinement case. The issue has not been answered in a published Minnesota case. But in both Spikula v. Brill, 1998 WL 268094 (Minn. App.), and Reyes v. Galland, 2000 WL 310413 (Minn. App.), the Minnesota Court of Appeals addressed cases arising in private prisons. While this is not dispositive, I conclude that it is likely that had Myers petitioned the applicable Minnesota District Court to review his underlying complaint that he was improperly transferred to segregation, the Minnesota District Court would have reviewed his complaint.

¶ 29. Accordingly, I, like the majority, would conclude that the trial court correctly concluded that it lacked competency to address Myers's petition for a writ of certiorari. While the difference between my analysis and the majority's analysis may seem inconsequential here, the difference becomes significant in another case decided today, State ex rel. Tommy Ponchik v. Bradley, 2004 WI App 226, 277 Wis. 2d 768, 690 N.W.2d 860. I respectfully concur in the majority's mandate here.

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

       We note that because Wis. Stat. § 302.18(5) specifies that the transfer of a Wisconsin prisoner to an out-of-state facility "shall not change the term of sentence" of the prisoner, Wisconsin law still controls the sentence and sentence credit issues and Wisconsin courts retain competency to hear such issues, even while an inmate is housed out of state. State ex rel. Griffin v. Litscher, 2003 WI App 60, ¶¶ 12-13, 261 Wis. 2d 694, 659 N.W.2d 455. Under Wisconsin's statutory scheme, disciplinary segregation at an out-of-state facility cannot affect a prisoner's sentence by extending the mandatory release date. See Wis. Stat. § 302.11(2) (extending the mandatory release date for violating "any regulation of the prison") and § 302.01 (defining "prison" to include only institutions located in Wisconsin); see also Wis. Admin. Code § DOC 303.01(1) (noting: "The department may not discipline an inmate for an incident for which the inmate was disciplined in another jurisdiction.").

       Because the issue is not before us, we do not decide at this time whether it would be sufficient for the petitioner to provide alternative evidence, such as a sworn affidavit averring that a court of the state in which he or she is housed has denied review of a disciplinary proceeding on jurisdictional or competency grounds. In the event that a respondent chooses to challenge such an affidavit, it could become necessary for the trial court to resolve the factual dispute by an evidentiary hearing.

       We have previously concluded, as well, that if an out-of-state judicial review proceeding results in a dismissal on the merits, the doctrine of claim preclusion bars a subsequent certiorari action in Wisconsin. State ex rel. Barksdale v. Litscher, 2004 WI App 130, ¶ 12, 275 Wis. 2d 493, 685 N.W.2d 801.

       We expand upon this topic in a closely related decision which we issue on this same day. State ex rel. Ponchik v. Bradley, 2004 WI App 226, 277 Wis.2d 768, 690 N.W.2d 860. In Ponchik, we reject an inmate's allegation that out-of-state judicial review would be unavailable as a matter of law in the state where a disciplinary action occurred. Id., ¶ 8.

       Wisconsin Stat. § 301.21(2m)(b) provides: 'While in an institution in another state covered by a contract under this subsection, Wisconsin prisoners are subject to all provisions of law and regulation concerning the confinement of persons in that institution under the laws of that state."

       I use the term "foreign imprisonment" to refer to an inmate who has been convicted of a Wisconsin crime in Wisconsin but who has been sent by the Wisconsin Department of Corrections to a private prison in a state other than Wisconsin.

       Minnesota has different rules than Wisconsin as to citing unpublished court of appeals decisions. Minnesota Stat. § 480A.08 Subd. 3(c)(note) provides:
      Unpublished opinions of the court of appeals are not prece-dential. Unpublished opinions must not be cited unless the party citing the unpublished opinion provides a full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing or trial. If cited in a brief or memorandum of law, a copy of the unpublished opinion must be provided to all other counsel at the time the brief or memorandum is served, and other counsel may respond.
      This statute appears to be applicable to litigants, not courts. Minnesota unpublished opinions are not precedential but may be of persuasive value. Becker v. State Farm Mutual Automobile

        Ins. Co., 596 N.W.2d 697, 700 (Minn.Ct.App. 1999), rev'd on other grounds, 611 N.W.2d 7 (Minn. 2000). I conclude that I may properly cite Spikula and Reyes as persuasive of Minnesota courts' willingness to review Minnesota private prison matters.