author: DEININGER, EJ.

text:
    Local 2489, AFSCME, AFL-CIO, and John Does 1-13, Plaintiffs-Appellants, v. Rock County and Eric A. Runaas, Defendants-Respondents, Bliss Communications, Inc. d/b/a The Janesville Gazette, Intervenor-Respondent.
    Court of Appeals

      No. 03-3101.

      Submitted on briefs April 22, 2004.

    Decided October 7, 2004.

    2004 WI App 210
    (Also reported in 689 N.W.2d 644.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Bruce F. Ehlke and Danielle L. Carne of Shneidman, Hawks & Ehlke, S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas A. Schroeder, corporation counsel, Janesville.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of Thomas J. Basting, Sr. and Margery Mebane Tibbetts of Brennan, Steil, Basting, S.C., Janesville.
    Before Deininger, EJ., Dykman and Vergeront, JJ.
   DEININGER, EJ.

¶ 1. Local 2489 of AFSCME, AFL-CIO, and thirteen of its members appeal an order that dismissed their complaint seeking to enjoin the Rock County Sheriff from releasing certain records pursuant to an open records request from The Janes-ville Gazette. The union claims that the trial court should have enjoined the release of the records because they relate "to the current investigation of... possible misconduct connected with employment by an employee," Wis. Stat. § 19.36(10)(b), and thus the sheriff may not provide the public access to them. The union also claims that, even if the records do not fall within the statutory exception from disclosure, the trial court erred in concluding that the public interest in their disclosure outweighed the public interest in protecting the reputational and privacy interests of the employees in this case. We reject both arguments and affirm the appealed order.

BACKGROUND

¶ 2. In response to the supreme court's holdings in Milwaukee Teachers' Education Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), and Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the legislature last year enacted 2003 Wis. Act 47. See Joint Legislative Council Prefatory Note to 2003 Wis. Act 47. The act provides, among other things, that if a public authority decides to release certain employee-related records to someone who has requested access to them under Wis. Stat. § 19.35, before doing so, the authority must give notice to the "record subject," who may then commence an action in circuit court to prevent their release. See Wis. Stat. § 19.32(2g) (defining "record subject" as "an individual about whom personally identifiable information is contained in a record"); Wis. Stat. § 19.356 (prescribing procedures for a record subject to bring an action to enjoin release of the records).

¶ 3. The types of records which trigger the notice and right-of-action provisions of Wis. Stat. § 19.356 include the following:

A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.

Wis. Stat. § 19.356(2)(a)l. If a record subject commences an action under § 19.356(4) to restrain the intended release of records, the requester of the records may intervene in the action, as The Janesville Gazette has done here. When deciding whether to enjoin the release of records to a requester, the circuit court "shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision." Section 19.356(6). The statute prohibits release of the requested records during the pendency of the action, including any appeals of an adverse decision by the record subject. Section 19.356(5).

¶ 4. In addition to establishing notice and right-of-action provisions relating to certain employee-related records, 2003 Wis. Act 47 also created several new statutory exceptions to the general requirement for public access to public records. Pertinent here is a new exception for "[i]nformation relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation." Wis. Stat. § 19.36(10)(b). If a record falls within this exception from disclosure, "an authority shall not provide access" to the record, regardless of the public interests weighing in favor of disclosure. Section 19.36(10); see also Joint Legislative Council Prefatory Note to 2003 Wis. Act 47 (explaining that the act creates a category of "[ejmployee-related records that are absolutely closed to public access under the open records law").

¶ 5. The Rock County Sheriff notified thirteen employees of his department that, based on an investigation of their conduct, they would be disciplined for "using Department computers to view inappropriate internet images." Three were discharged and ten received written reprimands. At about this same time, The Janesville Gazette sent an open records request to the sheriff seeking "copies of reports generated by internal or criminal investigations resulting in disciplinary action" against department employees during the relevant time frame. The sheriff notified each of the employees of his intended action in response to the Gazette's request:

As the investigation is complete and disposed of with [the termination of employment/written reprimand], I believe the reports may be accessed by the media pursuant to § 19.36(10)(b), Wis. Stats. However, in performing the required balancing tests I have determined that the public interest in your privacy and reputational interests outweighs the public interest in the release of your identity. Therefore, I have decided that prior to the release of the reports your name and any other identifying information will be redacted.

¶ 6. The sheriffs notices to the affected employees also informed them of their right under Wis. Stat. § 19.356 to commence an action to prevent the release of the records in question. They did so, joined by their union, Local 2489, AFSCME, AFL-CIO, naming Rock County and the Rock County Sheriff as defendants. The Janesville Gazette intervened. The employees and the union argued that, because they had filed grievances pursuant to their collective bargaining agreement with the county regarding the discipline imposed by the sheriff, the "investigation" into their alleged misconduct had not been completed. They also argued that, even if the exception for records of "current investigation[s]" under Wis. Stat. § 19.36(10)(b) did not apply, public interest considerations weighed against releasing these records. The circuit court concluded that the relevant investigation was completed and that the public interest in disclosure outweighed any public interest in protecting the privacy of the affected employees. Accordingly, the court entered an order denying the requested injunction and dismissing the complaint.

ANALYSIS

¶ 7. The union's first argument requires us to interpret Wis. Stat. § 19.36(10)(b) and thus presents a question of law that we decide de novo. Hempel v. City of Baraboo, 2003 WI App 254, ¶ 10, 268 Wis. 2d 534, 674 N.W.2d 38, review granted, 2004 WI 20, 269 Wis. 2d 197, 675 N.W.2d 804 (WI Feb. 24, 2004) (No. 03-0500). Whether the public interest in disclosure of public records is outweighed by a competing public interest in keeping certain records confidential is also an issue we decide independently, owing no deference to the circuit court's conclusion. Kraemer Bros., Inc. v. Dane County, 229 Wis. 2d 86, 95, 599 N.W.2d 75 (Ct. App. 1999).

¶ 8. The union argues that the investigation into the employees' alleged misconduct had not been concluded when the sheriff decided that redacted copies of the records could be released to The Janesville Gazette. Thus, according to the union, the records are covered by the statutory exception for records of a "current investigation" of possible employee misconduct "prior to disposition of the investigation," as set forth in Wis. Stat. § 19.36(10)(b). Accordingly, the union contends that the sheriff had no authority to grant access to these records, rendering any balancing of public interests irrelevant.

¶ 9. The union acknowledges that the sheriffs own investigation of the employee's conduct had concluded, resulting in the employees receiving discipline. It argues, however, that the filing of grievances had the effect of prolonging the investigation of the employee's conduct, which it asserts is "an ongoing process that continues until there has been a final disposition at the conclusion of the grievance-arbitration process," pursuant to its collective bargaining agreement with the county. Specifically, the union argues:

A full and fair investigation, involving both the employer and the Union that represents the employees, is essential to the grievance-arbitration process. The resolution of a grievance entails conferring with individuals, gathering and reviewing documents and other information, performing research and weighing and evaluating evidence. All of this investigatory activity is important and necessary, if there is going to be an informed and fair disposition of the pending grievances. In order to maintain the integrity of this process, and as provided for at Sec. 19.36(10)(b), Wis. Stat., the confidentiality of the investigation should be protected until there has been a final disposition of the grievances.

¶ 10. The union's argument thus requires us to determine whether the terms "investigation" and "disposition of the investigation" as employed in Wis. Stat. § 19.36(10)(b) can be interpreted so broadly as to encompass the entire grievance resolution process through its completion. The trial court concluded that the terms could not be read so expansively and that the only "investigation" that triggers the exception is one "conducted by the public entity that's involved in the case, [here] the sheriffs department," not one conducted by the record subject or his or her representative, or by some third party as a follow-up to or result of the public authority's investigation. We agree.

¶ 11. The Wisconsin Supreme Court has recently instructed courts on how to proceed when interpreting a statute:

We assume that the legislature's intent is expressed in the statutory language .... Thus ... statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. 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....

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 44-46, 271 Wis. 2d 633, 681 N.W.2d 110 (citations, quotation marks and paragraph breaks omitted). To this general standard for interpreting statutes, we must add the specific guidance that has evolved in the common law regarding interpretation of the Wisconsin Open Records Law: given the legislative declaration of policy in Wis. Stat. § 19.31 that establishes "a presumption of complete public access," the language of a statutory exception to public access should always be construed as narrowly as possible. See Chvala v. Bubolz, 204 Wis. 2d 82, 88, 552 N.W.2d 892 (Ct. App. 1996).

¶ 12. No definition of "investigation" or "disposition of the investigation" is provided in either Wis. Stat. § 19.36 itself, or in Wis. Stat. § 19.32, which defines certain terms for purposes of Wis. Stat. §§ 19.33 through 19.39. The introductory language of § 19.36(10) sheds some light on the meaning of these terms, however, in that it allows the release of records excepted from public disclosure by the subsection to "an employee" or to a "recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain.. . pursuant to a collective bargaining agreement." Section 19.36(10). If "investigation" as used in § 19.36(10)(b) were meant to include investigations conducted by employees themselves, or by unions incident to grievance resolution processes under a collective bargaining agreement, this language would not seem necessary, or, at a minimum, would be worded differently. We conclude that this exception to the exception under § 19.36(10)(b) supports an interpretation that the "investigation" referred to is that conducted by the public employer.

¶ 13. We also note, as does The Janesville Gazette, that certain procedural requirements under Wis. Stat. § 19.356, enacted at the same time that the legislature created the exception under Wis. Stat. § 19.36(10)(b), indicate that the public's access to governmental records is not to be unduly delayed. If an employee exercises the right to challenge the release of a record proposed for reléase to a requester, the employee must do so within ten days of receiving notice of the authority's intention to release the records. Section 19.356(4). The circuit court must decide the issue within ten days of the employee's filing and service of the summons and complaint, but for cause may extend the time for no more than thirty days. Section 19.356(7). Any appeal of the circuit court ruling must be commenced within twenty days, and we are to "grant precedence to the appeal over all other matters not accorded similar precedence by law." Wis. Stat. §§ 19.356(8) and 808.04(lm).

¶ 14. We agree with the Gazette that the language of Wis. Stat. § 19.356 evinces a legislative intent that public records be promptly disclosed to a requester, even if their release is challenged by an employee. Reading Wis. Stat. § 19.36(10)(b) to preclude the release of records until any grievance arbitration or other review proceedings initiated by the employee have run their course would permit the employee to create prolonged delays in the release of the requested records. Thus, read in the context of a closely related statute, the "investigation" and "disposition of the investigation" cannot reasonably be read to extend to the progress and completion of grievance arbitration as the union contends. See State ex rel. Kalal, 271 Wis. 2d 633, ¶ 46 ("[Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.").

¶ 15. We conclude that, in keeping with the mandate for narrow construction of excepting language, the term "investigation" in § 19.36(10)(b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action. We also conclude that an authority's investigation achieves its "disposition" when the authority acts to impose discipline on an employee as a result of the investigation, regardless of whether an employee elects to pursue grievance arbitration or another review mechanism that may be available under applicable statutes, ordinances, regulations or a collective bargaining agreement.

¶ 16. We also reject the union's reliance on Wis. Stat. § 19.35(l)(am) to support its claim that the exception to disclosure under Wis. Stat. § 19.36(10)(b) applies throughout grievance arbitration proceedings. That paragraph grants an "individual," or someone "authorized by the individual," the right to inspect and copy "any record containing personally identifiable information pertaining to the individual that is maintained by an authority." This right is "[i]n addition to any right" of public access under the general open records requirement of § 19.35(1)(a), but this expanded right of access granted to certain individuals does not apply to, among other things:

Any record containing personally identifiable information that is collected or maintained in connection with a complaint, investigation or other circumstances that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding, or any such record that is collected or maintained in connection with such an action or proceeding.

Section 19.35(l)(am)l (emphasis added). The union relies on the emphasized language to argue that it demonstrates that a "current investigation" under Wis. Stat. § 19.36(10)(b) must be interpreted to continue throughout grievance arbitration. We disagree.

¶ 17. Wisconsin Stat. § 19.35(l)(am), as applied here, would grant additional access rights, over and above those of the public, to the employees to inspect and copy documents maintained by the sheriff that pertain to them. The exception in subsection 1 permits the sheriff, if he chooses, to refrain from disclosing to the employees any materials "collected or maintained" in an investigation "that may lead to" litigation, administrative proceedings or arbitration. Presumably, an employee's right, if any, to discover materials collected or prepared by the authority as a prelude to litigation, arbitration or administrative proceedings, would be governed by the rules pertaining to the review proceeding in question. Section 19.35(l)(am) thus simply permits a public employer to deny access to what is, in effect, a potential adversary in litigation or other review proceedings, unless or until required to do so under the rules governing parties to the proceeding.

¶ 18. Unlike Wis. Stat. § 19.36(10)(b), Wis. Stat. § 19.35(l)(am) does not mandate nondisclosure. The sheriff has decided that, except for the employees' names, the interests of the public in disclosure of these records outweigh any competing considerations, including perhaps placing himself or the county at some disadvantage in the ensuing grievance arbitrations. The sheriffs decision to forgo any opportunity that may exist to justify the denial of access to the investigation reports from the public or the employees because of impending litigation or arbitration renders the language of § 19.35(l)(am)l inapplicable to the present dispute. We conclude that § 19.35(l)(am)l, which involves an employee's right of access to an employer's records involving him or her, does not serve to inform us as to the meaning of "investigation" or "disposition of the investigation" as those terms are used in Wis. Stat. § 19.36(10)(b), an exception to the public's right of access to government records.

¶ 19. Finally, the union makes what appears to be a slightly different argument by distinguishing its own investigation into the alleged misconduct from what it claims is the sheriffs duty to continue his investigation during a grievance arbitration proceeding. The union argues that, even if the grievance-related investigations conducted by the employees or the union do not prevent the "investigation" from having reached its "disposition" under Wis. Stat. § 19.36(10)(b), the sheriff also has a duty under the grievance resolution provisions of the parties' collective bargaining agreement to pursue his own investigation until the grievances are finally disposed of. Put another way, the union again argues that the sheriffs "investigation" remains a "current" one until such time as the thirteen grievances reach their final disposition. Again, we disagree.

¶ 20. We have examined the grievance procedure contained in the union's collective bargaining agreement with the county, which the union attached to its complaint, and we find no express requirement that the sheriff must continue to "investigate" after a grievance is filed regarding discipline imposed. The sheriff undertook the investigation of possible employee misconduct within his department, completed it and imposed discipline on thirteen employees. The fact that the sheriff is now obliged to defend his action before an arbitrator does not render the records generated during the prior, completed investigation immune from disclosure to the public under Wis. Stat. § 19.36(10)(b). If, in preparing his defense of his disciplinary actions, the sheriff collects additional information or generates additional records, public access to these new items might arguably be prohibited under the exception in question or another one. That possibility, however, does not alter the status of the records currently at issue.

¶ 21. Having concluded that the sheriff was not precluded by Wis. Stat. § 19.36(10)(b) from releasing the records of his completed investigations into possible employee misconduct, we now consider whether the trial court correctly concluded that the public interest in disclosure was not outweighed by any public interest in their nondisclosure. Even when no statutory exception to the open records law precludes the release of a record, an overriding public interest in keeping certain records confidential may overcome the general presumption in favor of public access, thereby permitting an authority to deny access to a requester. See Hathaway v. Joint School Dist. 1, City of Green Bay, 116 Wis. 2d 388, 396-97, 342 N.W.2d 682 (1984). In order to determine whether such an interest exists on the present facts, we, like the trial court, must "apply substantive common law principles construing the right to inspect... records" in deciding whether the sheriff should be enjoined from releasing the investigative records in question. Wis. Stat. § 19.356(6).

¶ 22. The union argues that "reputation and privacy concerns . . . represent one of the primary reasons for withholding records from public inspection," and it relies heavily on the supreme court's decisions in Woznicki and Milwaukee Teachers' Education Association to support this argument. We acknowledge that a public interest may be found in protecting the reputations of citizens. See Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 475, 516 N.W.2d 357 (1994) (" 'Protection of a citizen's good name is a proper concern of the state.'"). We conclude, however, that the union misapplies the holding in these and similar cases.

¶ 23. The supreme court ruled in Armada that a teacher must be allowed to intervene as a matter of right in an action by a requester to compel disclosure of an investigative report concerning sexual harassment charges against the teacher. Id. at 467. The court was careful to explain, however, that its decision "does not influence whether the record should remain closed. Moreover, it does not grant [the teacher] the ability to close the record. We are simply determining whether [the teacher] may intervene for the purpose of being able to offer reasons to the court why the record should remain closed." Id. at 473.

¶ 24. Similarly, both Woznicki and Milwaukee Teachers' Education Association cite privacy and repu-tational interests as reasons to allow the subject of a record to have a court review an authority's decision to release certain records that might harm those interests. Woznicki, 202 Wis. 2d at 193 (involving district attorney's intended release of personnel and telephone records gathered in a criminal investigation); Milwaukee Teachers' Educ. Ass'n, 227 Wis. 2d at 798 (concluding that de novo judicial review must be available whenever an authority proposes to release a public employee's personnel records). In both, however, as in Armada, the court emphasized that the right to seek review did not equate to a right to prohibit disclosure based on privacy or reputational interests. Woznicki, 202 Wis. 2d at 195 (noting that there is no "blanket exception" for personnel records, and that the "records are open to the public unless there is an overriding public interest in keeping the records confidential"); Milwaukee Teachers' Educ. Ass'n, 227 Wis. 2d at 799 (remanding so that the circuit court could perform "the balancing test required by law" to determine whether the records should be released).

¶ 25. As we have explained, the right of a public employee to obtain de novo judicial review of an authority's decision to allow public access to certain records is now granted by Wis. Stat. § 19.356. We conclude that the statutory right to judicial review provided in § 19.356 is no broader than the common law right recognized in Woznicki and Milwaukee Teachers' Education Association. That is, it is a right to obtain de novo judicial review, not a right to prevent disclosure solely on the basis of a public employee's privacy and reputational interests.

¶ 26. Thus, the public's interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. When individuals become public employees, they necessarily give up certain privacy rights and are subject to a degree of public scrutiny. See Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 786-87, 546 N.W.2d 143 (1996). This is especially true when they are employed in a law enforcement capacity. Hempel, 268 Wis. 2d 534, ¶ 18 ("Police officers must necessarily expect close public scrutiny."); State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 515, 558 N.W.2d 670 (Ct. App. 1996) ("As a result of their public employment, police officers have a lower expectation of privacy."). Although the employees in this case are apparently not "police officers," they are nonetheless public employees of a law enforcement agency whose expectations regarding privacy and public scrutiny we regard as similar.

¶ 27. We thus conclude that the public interest in protecting the privacy and reputations of the employees in this case is not a compelling one that would, by itself, override the strong public interest in obtaining information regarding their activities while on duty. As in Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811, the misconduct in this case "allegedly occurred in the location where the public has entrusted [the employees] to work and during the performance of [their] public duties, and therefore should be more subject to public scrutiny." Id., ¶ 28. We note as well that, although the union discounts the protection afforded, the sheriff proposes to release the reports of his completed investigation with the names of the disciplined employees redacted, a measure which in itself will afford some protection to the asserted interests.

¶ 28. The union has not asserted; nor do we find present in this case, any of the other privacy-related public interests that have, in other cases, been determined to weigh heavily against disclosure of investigative records such as these. For example, when the release of public records would jeopardize both the "personal privacy" and "safety" of an employee, nondisclosure is justified. State ex rel. Ledford v. Turcotte, 195 Wis. 2d 244, 250-51, 536 N.W.2d 130 (Ct. App. 1995). Similarly, records pertaining to internal investigations may properly be withheld from the public when they are the result of a confidential investigation and disclosure of the record would discourage future victims or witnesses from providing information of wrongdoing. Hempel, 268 Wis. 2d 534, ¶ 20. The union makes no similar claims regarding the internal investigation into the employees' misuse of department computers in this case.

¶ 29. Finally we address the union's argument that release of the records should, at a minimum, await the completion of the grievance arbitration process, lest public knowledge of the details of the internal investigation of computer misuse taint that process. The union essentially asserts that disclosure prior to the termination of grievance arbitration proceedings will contravene the public interest in the fair resolution of public employee grievances. Specifically, it posits that potentially favorable witnesses, county officials and even representatives of the union itself will be unable to fairly and fully participate in the grievance resolution process because of public disapproval of the disciplined employees' conduct. That is, in the union's view, those involved in processing or attempting to resolve the grievances will not want to be seen by the public as "soft on porn[ography]" by opposing the sheriffs disciplinary actions or by settling the grievances on a "reasonable" basis. It also asserts that release of these records before arbitration has run its course serves no public interest save The Janesville Gazette's desire to provide the public with accounts of "titillating material," which the union again asserts will only serve to interfere with the union's efforts to obtain a "fair and reasonable" resolution of the pending grievances.

¶ 30. We reject any notion that the reports of the sheriffs investigations of employee misconduct must remain secret during grievance arbitration in order to ensure that the employees are fairly treated by other participants in the grievance arbitration process. If that proposition were true, then all criminal complaints should be sealed and pretrial proceedings conducted outside of public view because the public also takes a dim view of criminal conduct. The fact that the public is often repulsed by the details of conduct described in criminal complaints does not inhibit defense attorneys from zealously defending their clients, judges from assembling impartial juries or prosecutors from negotiating "fair" plea bargains in appropriate cases. And, if an employee believes that an arbitrator's decision in his or her case was the product of the arbitrator's obeisance to public opinion, the employee is not without recourse. See Wis. Stat. § 788.10 (providing that a court "must make an order vacating the [arbitration] award" if it was "procured by ... undue means," "there was evident partiality... on the part of the arbitrators," or the arbitrators engaged in "any other misbehavior" prejudicing the rights of a party to the arbitration).

¶ 31. Thus, we conclude that the union has not established any genuine public interest in keeping the records in question away from public view, beyond the generalized interest in not injuring the reputation or privacy interests of any citizen. As in most other instances where that generalized interest is weighed against the overriding public interest in obtaining information regarding the activities of public servants, it quickly yields to the greater weight of the latter interest. The supreme court had little difficulty concluding in Linzmeyer that a public school teacher had not shown there to be a public interest in maintaining the confidentiality of a report regarding the investigation by police of his alleged "inappropriate statements to, and... inappropriate conduct with, a number of his female students" sufficient to "overcome the presumption of openness." Linzmeyer, 254 Wis. 2d 306, ¶¶ 4, 25. Similarly, we have previously determined that the public's interest in being apprised of misconduct on the part of correctional officers at a state prison outweighed their interest in not being subjected to possible "ridicule or harassment by inmates." State ex rel. Ledford, 195 Wis. 2d at 252 ("Public policy... dictates that public officers and employees who engage in potentially illegal conduct should have no expectation that public records relating to that conduct will be suppressed simply because news of the records' existence may make their jobs more difficult or dilute their effectiveness in some way.").

¶ 32. As was the case in Linzmeyer and Ledford, we conclude that the union has failed to tip the scales against public disclosure of the records at issue.

CONCLUSION

¶ 33. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       For convenience, we will refer to the appellants collectively as "the union."

       All references to the Wisconsin Statutes are to the 2001-02 version, as affected by 2003 Wis. Act 47, unless otherwise noted.

       Wisconsin Stat. § 19.31 declares that "it is .. . the publie policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." To that end, Wis. Stat. §§ 19.32 to 19.37 "shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 49 n.8, 271 Wis. 2d 633, 643 N.W.2d 466 ("A plain meaning, text-based approach to statutory interpretation certainly does not prohibit the interpretation of a statute in light of its textually manifest scope, context, or purpose.").

       Here, of course, it is relatively easy to conclude that the investigation reached its "disposition" because the sheriff concluded employee misconduct had occurred and imposed discipline accordingly. A similar discrete ending point, or "disposition," of an investigation into "a possible criminal offense or possible misconduct connected with employment" may not be as easy to discern when the investigation fails to substantiate a basis for the filing of criminal charges against an employee or the imposition of discipline by a public employer. We need not, and thus do not, decide when an investigation that does not result in such actions has reached its disposition.

       The Janesville Gazette asserts that the union argues "for the first time on appeal that the investigatory records should never be released." The Gazette maintains that, because the union sought in the trial court to enjoin the release of the records only during the pendency of grievance arbitration proceedings, it should not be allowed to advance arguments on appeal that the records should remain confidential on a permanent basis. We first note that the union's position in the circuit court is more accurately characterized as arguing for the imposition of immediate restraint on the release of any and all records relating to the employee misconduct investigations, and, upon completion of the grievance arbitration processes, a judicial determination of which records or parts of those records should be released. In any event, because we conclude that the exception under Wis. Stat. § 19.36(10)(b) for records of ongoing investigations does not apply, and further that no public policy interests cited by the union outweigh the public interest in access to these records regardless of the pending grievances, the records will be released to the requester. Our disposition obviates the need to draw any distinction between the present and future status of the records.

       The complaint does not disclose the positions held by the thirteen "John Doe" plaintiffs but simply identifies them as former or current employees of the Rock County Sheriffs Department. The collective bargaining agreement attached to the complaint specifies that Local 2489 includes "non-deputized employees of the Rock County Sheriffs Department."

       The Janesville Gazette has not argued here or in the circuit court that the sheriff has improperly chosen to redact the names. We question whether it could do so in the present proceeding brought by the employees and their union under Wis. Stat. § 19.356, in which the only issue is whether the sheriff may release what he proposes to release. Whether an intervening requester may request mandamus by way of a cross-claim in a § 19.356 action, or must instead commence a separate action under Wis. Stat. § 19.37(1) for the release of partially withheld information that the requester believes to have been wrongly withheld, is not before us in this appeal.

       The records proposed to be released are not in the record on appeal. A union officer avers in an affidavit that the employees were disciplined for using department "computer equipment searching for or viewing pornographic material." Counsel for the sheriff told the circuit court during argument that "[c]opies of the actual material that was looked at have been downloaded. There's color copies of all of it." The union does not argue that the trial court erred in conducting the public interest balancing test based on the parties' characterizations of what is contained in the records rather than by viewing the records themselves in camera. Neither does it argue that we are precluded from weighing the competing interests without having the records at issue before us. We note that an appellant has the duty to ensure that the record is sufficient to review the issues raised on appeal, and in the event that relevant materials are not included in the record, we will assume that they support the trial court's ruling. See State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986).


source: Caselaw Access Project

author: CURLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Franciollo L. Jones, Defendant-Appellant.

    Court of Appeals

      No. 03-3245-CR.

      Submitted on briefs August 3, 2004.

    Decided October 12, 2004.

    2004 WI App 212
    (Also reported in 689 N.W.2d 917.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Syovata K. Edari, assistant state public defender, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shannon Wittenberger, Assistant Attorney General, and Peggy A. Lautenschlager, Attorney General.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review denied 2-9-2005.

   CURLEY, J.

¶ 1. Franciollo L. Jones appeals a portion of the judgment convicting him of delivery of cocaine, as a party to the crime, contrary to Wis. Stat. § 961.41(l)(cm)l and 939.05 (2001-02). He also appeals from the order denying his postconviction motion. Jones contends that the trial court erred in granting only part of his postconviction motion. Although he asked that the postconviction court vacate the order requiring him to submit a DNA sample because he had already submitted one, the court did not rule on that request. All parties and the court appear to believe that part of the motion had been granted. Jones also claims that the court had no authority to require him to pay the DNA surcharge since no DNA sample was required. Because the trial court had the authority to order the DNA surcharge, and properly exercised its discretion in doing so, we affirm.

I. Background.

¶ 2. Jones was charged with delivery of cocaine, as a party to the crime. He pled guilty. The trial court sentenced him to twenty months' initial confinement, followed by eighteen months of extended supervision. At the sentencing hearing, the trial court ordered Jones to submit a DNA sample and to pay the DNA surcharge. Jones brought a postconviction motion requesting that the trial court delete the requirement for submission of a DNA sample and vacate the ordered surcharge, as he had already submitted a sample. Jones provided a letter from the State Crime Laboratory indicating it needed only one sample per subject. The trial court refused to rescind the order requiring Jones to pay the surcharge unless Jones could prove that he had paid the surcharge in an earlier case. Jones appeals.

II. Analysis.

¶ 3. Jones argues that the trial court erred when it refused to relieve Jones of the order to pay the DNA surcharge. He argues that, since he had already supplied a sample in another case, obviating the need for a sample in this case, the trial court did not have the authority to impose the DNA surcharge. He submits that Wis. Stat. § 973.046(lg) does not grant the court that authority. He contends that "affirming the trial court's decision would permit the trial court to repeatedly impose DNA surcharges on defendants when no sample is required."

¶ 4. Statutory interpretation is a question of law, and "[t]he purpose of statutory interpretation is to give effect to the plain meaning of the words in the statute." State v. Lombard, 2004 WI 95, ¶ 18, 273 Wis. 2d 538, 684 N.W.2d 103. "Extrinsic sources are not consulted unless the language of a statute is determined to be ambiguous." Id., ¶ 19. However, "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 histoiy." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 5. Wisconsin Stat. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen. Section 973.047 reads:

Deoxyribonucleic acid analysis requirements. (If) If a court imposes a sentence or places a person on probation for a felony conviction, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
(lm) The results from deoxyribonucleic acid analysis of a specimen provided under this section may be used only as authorized under s. 165.77 (3). The state crime laboratories shall destroy any such specimen in accordance with s. 165.77 (3).
(2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens when required to do so under this section and for the transportation of those specimens to the state crime laboratories for analysis under s. 165.77.

(Footnote added.) As the statute advises, the purpose behind this requirement is to create a DNA databank. The statute makes no exception for persons who have already submitted DNA samples, although the trial court in this case found that the State Crime Laboratory could not use more than one sample per person.

¶ 6. Wisconsin Stat. § 973.046 gives the trial court discretion to impose a DNA surcharge on persons convicted of most felonies, hut mandates the surcharge upon conviction for violation of Wis. Stat. §§ 940.225, 948.02(1) or (2), or 948.025. Section 973.046 provides:

Deoxyribonucleic acid analysis surcharge, (lg) Except as provided in sub. (lr), if a court imposes a sentence or places a person on probation for a felony conviction, the court may impose a deoxyribonucleic acid analysis surcharge of $250.
(lr) If a court imposes a sentence or places a person on probation for a violation of s. 940.225, 948.02 (1)or (2) or 948.025, the court shall impose a deoxyri-bonucleic acid analysis surcharge of $250.
(2) After the clerk of court determines the amount due, the clerk shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the state treasurer under s. 59.25 (3) (f) 2.
(3) All moneys collected from deoxyribonucleic acid analysis surcharges shall be deposited by the state treasurer as specified in s. 20.455 (2) (Lm) and utilized under s. 165.77.
(4) If an inmate in a state prison or a person sentenced to a state prison has not paid the deoxyribo-nucleic acid analysis surcharge under this section, the department shall assess and collect the amount owed from the inmate's wages or other moneys. Any amount collected shall be transmitted to the state treasurer.

¶ 7. Jones contends that the purpose of the surcharge is to fund the databank and the trial court cannot order the surcharge without ordering the DNA sample. The trial court disagreed, finding that it had the authority to impose a DNA surcharge without ordering a sample. The trial court wrote:

The court will not vacate a surcharge unless a showing is made that the defendant previously paid a surcharge in another case. The court has the statutory authority to order a defendant to pay for the testing performed by the State Crime Lab by assessing a $250 surcharge. Section 973.046(lg), Wis. Stats. If the defendant has already provided a sample and paid a surcharge in conjunction with another case, the court will vacate a second order for a DNA surcharge. If the defendant cannot show that he has paid a surcharge in connection with the first DNA sample ordered, the court will not vacate the $250 surcharge. The defendant, rather than the taxpayers, shall pay for the DNA testing.

The trial court was correct. The language of the statute plainly states that the trial court has the discretion to order a DNA surcharge upon the entry of a judgment in this felony case. Nothing in § 973.046(lg) requires a DNA sample to be collected before the court can order the payment of the surcharge.

¶ 8. In response, Jones argues that the two statutes, Wis. Stat. § 973.046 and Wis. Stat. § 973.047, must be read together, and, if read together, require the court to order a DNA sample before it can order the surcharge.

¶ 9. The cases that Jones cites to support this argument are State v. Ward, 228 Wis. 2d 301, 596 N.W.2d 887 (Ct. App. 1999), and State v. Trepanier, 204 Wis. 2d 505, 555 N.W.2d 394 (Ct. App. 1996). However, they are no longer controlling because they rely on prior versions of Wis. Stat. §§ 973.046 and 973.047. When these cases were decided, § 973.046 (1997-98) provided, as relevant:

Deoxyribonucleic acid analysis surcharge. (1) If a court imposes a sentence of places a person on probation under any of the following circumstances, the court shall impose a deoxyribonucleic acid analysis surcharge of $250:
(a) The person violated s. 940.225 or 948.02(1) or (2).
(b) The court required the person to provide a biological specimen under s. 973.047(1).

(Emphasis added.) Section 974.047 (1997-98) provided, as relevant:

Deoxyribonucleic acid analysis requirements. (1)(a) If a court imposes a sentence or places a person on probation for a violation of s. 940.225, 948.02(1) or (2) or 948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
(b) Except as provided in par. (a), if a court imposes a sentence or places a person on probation for any violation under ch. 940, 944, or 948 or ss. 943.01 to 943.15, the court may require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

¶ 10. Clearly, the earlier version of § 973.046 expressly referred to § 973.047(1). Indeed, this is the reason that Trepanier construed these statutes together. See Trepanier, 204 Wis. 2d at 508; see also Ward, 228 Wis. 2d at 311. These statutes were amended, however, before Jones was convicted. See 1999 Wis. Act 9, §§ 3202, 9458. As we have seen, the current version of § 973.046 no longer refers to § 973.047.

¶ 11. The trial court also noted that it would vacate the surcharge if the defendant could show that he previously paid a surcharge in another case. Jones argues that Wxs. Stat. § 973.046(lg) does not give the trial court authority to impose a surcharge for a sample collected in connection with an unrelated case. However, as indicated by the statute, the trial court was able to exercise its discretion and to impose a DNA surcharge regardless of whether Jones gave a sample in this case. Under the circumstances present here, therefore, we conclude that the trial court properly exercised its discretion in imposing a DNA surcharge in this case. Accordingly, we affirm.

By the Court. — Judgment and order affirmed.

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

       It appears that the trial court did not intend to require submission of the redundant DNA sample, but the order inadvertently omitted action on that portion of the motion.

       Wisconsin Stat. § 165.771(3) provides:
      (3) If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (lm) (a), 973.047 or 980.063, the laboratories shall analyze the deoxyribo-nucleic acid in the specimen. The laboratories shall maintain a data bank based on data obtained from deoxyribonucleic acid analysis of those specimens. The laboratories may compare the data obtained from one specimen with the data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney or subject of the data. The data may be used in criminal and delinquency actions and proceedings. The laboratories shall destroy specimens obtained under this subsection after analysis has been completed and the applicable court proceedings have concluded.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Eugene M. Perkins, Defendant-Appellant.

    Court of Appeals

      No. 03-3296-CR.

      Submitted on briefs September 7, 2004.

      Decided October 12, 2004.

    2004 WI App 213
    (Also reported in 689 N.W.2d 684.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey W. Jensen, of Law Offices of Jeffrey W Jensen, of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 12-15-2005.

   CURLEY, J.

¶ 1. Eugene M. Perkins appeals from a judgment, entered after a jury trial, convicting him of one count of second-degree sexual assault of a mentally ill individual, in violation of Wis. Stat. § 940.225(2)(c) (2001-02). Perkins contends that there is insufficient evidence to support the conviction because: (1) the State "failed to present expert testimony to establish whether the victim, H.V[,] suffered from any mental illness or... deficiency to the extent that it would render her incapable [of] appraising her own behavior"; and (2) the State did not present any evidence that would "permit an inference that Perkins knew that H.V suffered from any mental condition [that] would bring her within the protection of the statute." Because there was sufficient credible lay opinion testimony establishing that H.V suffered from either a mental illness or incapacity under § 940.225(2)(c), thereby obviating the need for expert testimony, and because the jury could reasonably conclude from the circumstantial evidence presented that Perkins was aware of H.V's mental illness, we affirm.

I. Background.

¶ 2. In August 2001, Perkins and H.V, a seventy-eight-year-old woman, lived in the same small community-based residential facility for the elderly. At the time, there were seven patients residing in the facility; H.V had been living there for over a year, and Perkins for about two or three months. The residents shared all of their meals at a large table, and mingled with each other all day, as the building is very small.

¶ 3. According to a witness who is a caregiver at the facility, H.V suffers from "severe Alzheimer's," is unable to converse coherently, and does not remember things that have happened in the past or even earlier in the day. She generally responds to questions or attempts to communicate by laughing, or saying "yes ma'am" or "no ma'am." According to the witness, H.V is not physically impaired, but does require twenty-four hour supervision because of her mental deficits.

¶ 4. Testimony established that Perkins, who was approximately sixty years old at the time, was residing in the facility after suffering three strokes. Perkins had no cognitive or mental limitations. While he was allegedly wheelchair-bound, the caregiver testified that she observed Perkins sometimes walking without the aid of his wheelchair. He also used oxygen while he slept, and occasionally during the day.

¶ 5. On August 22, 2001, H.V and Perkins were the last two residents awake in the facility. The caregiver, who works the 5:00 p.m. to 7:00 a.m. shift, testified that Perkins was talking to H.V in a very soft tone, referring to himself as "daddy," on and off for between two to three hours. In response, H.V would just laugh and say "ha, ha, ha, no, no, no." At around 10:30 p.m., the caregiver put H.V to bed and closed her bedroom door. Perkins remained in the dining room area, watching television and talking to the caretaker, for around another hour and five minutes. At 11:35 p.m., Perkins went to bed. The caregiver ensured that he had gotten into bed and his oxygen was turned on, and then returned to the dining room.

¶ 6. According to the caregiver's testimony, at around 11:55 p.m., as she was about to start her rounds checking on the residents, she heard some noise, and went to investigate its source. From about thirty feet away, she saw H.V "sitting in a chair in the hallway and ... Perkins standing in front of her with his penis in his right hand and his left hand behind [H Vs] head forcing his penis into her mouth and H[V] saying 'no, no,' and she was pushing away from him." The caregiver testified that as H V was pushing Perkins away, he was saying "oh, come on, oh, come on." At that point, the caregiver thought she should call for a second witness, so she stopped, turned around, and went to call for assistance over the intercom. When she walked back, she heard Perkins moving at a very fast pace back to his bed. The caregiver testified that by the time she returned, she heard Perkins get into his bed, and observed HV still sitting in the hallway.

¶ 7. The caregiver called her supervisor and the owner of the facility, and made a bed for H.V on the sofa so that she would be nearby. She testified that she tried to talk to H.V about the incident, but H.V could not remember what happened. The police were called the next day; however, H.V was not able to respond to any questions from the officer. The caregiver gave the police an account of what happened when she returned to work the next day.

¶ 8. Perkins was charged with second-degree sexual assault of a mentally ill individual, and pled not guilty. A jury trial was held in November 2001. At the close of the State's case, after the caregiver, the owner of the facility, and a police officer testified, Perkins moved to dismiss on the basis that there was "no evidence that [H.V] suffers from [a] mental illness or deficiency which rendered her temporarily or permanently incapable of appraising her conduct." Perkins argued that without expert testimony regarding her condition, that element could not be satisfied. The State asserted that the law does not require a medical opinion or diagnosis and that the jury instruction specifically does not define mental illness or deficiency, for it is within the "common understanding of the jury and is not for the court to specifically define." The trial court concluded:

It would be cleaner for me to decide if there was a doctor on the stand who had examined [H.V] and was able to ask the direct question could [HV] appraise the consequences of her conduct and the import of somebody requesting to have a sexual act performed on her or by her, but the law doesn't require that evidence in order for the State to meet its burden. The State simply need prove that there was a mental deficiency and that [HV] was temporarily or permanently incapable of appraising her conduct.
I believe that if the jury finds this evidence credible the jury can easily infer that a person who can't remember from one moment to the next what they're doing, has to be reminded to stay at the table to finish dinner and can't remember the people in her life who she deals with every day is a person who cannot appraise her conduct and does have a mental deficiency, no matter whether you put the label of Alzheimer's or dementia or anything else on it. I think this jury could easily infer from the facts that have been presented to them if the jury finds them credible that [H V] qualifies as a mentally ill victim under the statute.
Accordingly, I'll deny the motion to dismiss at the close of the State's evidence.

¶ 9. Thereafter, Perkins testified on his own behalf. He denied the entire incident. He claimed that he had never spoken to H.V, did not know her name, did not know why she was residing in the home, and was unable to walk in August 2001. After Perkins testified, the State recalled the owner of the facility, who testified that she had observed Perkins walking without the aid of his wheelchair prior to the day of the incident, saw Perkins talking to H.V at least once a day during his stay, and heard Perkins call H.V by her name.

¶ 10. At the close of evidence, Perkins again moved to dismiss, insisting that the .State had failed to establish "a prima facie case with regard to the elements." The trial court denied the motion: "I still have the belief that if the jury finds the evidence credible, if they find credible what [the caregiver] said, what [the owner] said, then I think there is sufficient evidence to support a guilty verdict." The jury found Perkins guilty. He now appeals.

II. Analysis.

¶ 11. Perkins contends that "[i]n the absence of expert testimonyt,] the evidence was insufficient, as a matter of law, to establish that H.V was mentally ill or deficient to the extent that it rendered her unable to appraise her conduct." He argues that although there is no case law in Wisconsin that requires expert testimony to establish the existence of a "mental illness," as that term is used in Wis. Stat. § 940.225, "the appellate courts have consistently held that proof of 'mental illness or deficiency' as used in virtually every other section of the statutes requires proof by way of expert testimony."

¶ 12. Furthermore, he argues that "[e]qually absent from the record during the course of the State's case was any evidence that [he] knew whether H.V suffered from [a] mental illness much less whether he knew that any such mental illness was sufficient to render H.V incapable of appraising her conduct." He insists that the only evidence presented was that H.V and Perkins resided in the same facility, and that it does not follow that he necessarily would be aware of her condition. He also asserts that "there is no reason to believe that one could discover the extent of H.V's impairment by a brief conversation with her[,]" which he claims is the only evidence the State presented — that he had a conversation with H.V earlier on the day of the incident.

¶ 13. Although Perkins did move to dismiss at the close of the State's case, he also proceeded to present a defense. As such, our review concerns only whether there is sufficient evidence to sustain the conviction. See State v. Kelley, 107 Wis. 2d 540, 544, 319 N.W.2d 869 (1982) ("In the present case, after the defendant's motion to dismiss was denied, he proceeded to put in his defense. Therefore, on review, the appellate court must examine all the evidence in determining whether it is sufficient to sustain the conviction.").

¶ 14. Our review of the sufficiency of the evidence is limited. As the supreme court reiterated in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), the test is whether sufficient evidence was presented to the jury to support the finding:

The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true... . The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted.

Id. at 503-04 (citations omitted) (alterations and omissions in original). Moreover, "[o]nly when the evidence is inherently or patently incredible will [the court] substitute [its] judgment for that of the factfinder." State v. Saunders, 196 Wis. 2d 45, 54, 538 N.W.2d 546 (Ct. App. 1995) (citation omitted).

¶ 15. An appellate court gives deference to a trial court's findings because of "the superior opportunity of the trial court to observe the demeanor of witnesses and to gauge the persuasiveness of their testimony." Kleinstick v. Daleiden, 71 Wis. 2d 432, 442, 238 N.W.2d 714 (1976). It is the jury's job to resolve any conflicts or inconsistencies in the evidence and to judge the credibility of the evidence, State v. Pankow, 144 Wis. 2d 23, 30-31, 422 N.W.2d 913 (Ct. App. 1988) ("The function of the jury is to decide which evidence is credible and which is not, and how conflicts in the evidence are to be resolved.”), and "[i]t is certainly allowable for the jury to believe some of the testimony of one witness and some of the testimony of another witness even though their testimony, read as a whole, may be inconsistent," State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985).

¶ 16. Furthermore, "expert testimony is required only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror." State v. Whitaker, 167 Wis. 2d 247, 255, 481 N.W.2d 649 (Ct. App. 1992). "When the matters to be proven are within the area of common knowledge and lay comprehension, a lay opinion may suffice." Vultaggio v. General Motors Corp., 145 Wis. 2d 874, 882, 429 N.W.2d 93 (Ct. App. 1988). "Generally, expert testimony will assist the jury when the issue to be decided requires an analysis that would be difficult for the ordinary person in the community." State v. Blair, 164 Wis. 2d 64, 75, 473 N.W.2d 566 (Ct. App. 1991). Indeed, "requiring expert testimony ... represents an extraordinary step, one to be taken only when 'unusually complex or esoteric issues are before the jury[,]'" Weiss v. United Fire and Casualty Co., 197 Wis. 2d 365, 379, 541 N.W.2d 753 (1995) (citation omitted), and "[djetermining whether expert testimony assists the fact finder is a discretionary decision of the trial court[,]" State v. Richardson, 189 Wis. 2d 418, 424, 525 N.W.2d 378 (Ct. App. 1994).

¶ 17. Here, the State had to prove four things: (1) that Perkins had sexual contact or intercourse with H.V; (2) that H.V suffered from a mental illness or deficiency at the time of the sexual contact or intercourse; (3) that the mental illness or deficiency rendered H.V temporarily or permanently incapable of appraising her conduct, or in other words, H.V must have lacked the ability to evaluate the significance of her conduct because of her mental illness or deficiency; and (4) Perkins knew that H.V was suffering from a mental illness or deficiency and knew that the mental condition rendered H.V temporarily or permanently incapable of appraising her conduct. See Wis JI— Criminal 1211. Perkins insists that the State failed in two regards — there was insufficient evidence to establish that H.V suffered from a mental illness and that Perkins knew of her illness. We disagree.

¶ 18. Perkins asserts that without expert testimony, there was insufficient evidence to establish that H.V suffered from a mental illness. He argues that although there is no case law requiring expert testimony to prove the existence of a mental illness or deficiency under Wis. Stat. § 940.225, in general, courts have held that whether an individual is mentally ill is a medical question "that turns on the meaning of facts as interpreted by expert psychiatrists and psychologists." He contends that the issue is beyond the average layman's understanding, and points to other circumstances in which expert testimony is required, such as in determining whether a defendant is competent to stand trial, proving that the defendant is not responsible for a crime due to mental disease or defect, or establishing that an individual is subject to involuntary commitment.

¶ 19. He does not, however, point to a single statute requiring expert testimony to prove a victim's mental condition. Furthermore, he ignores the comment following the jury instruction for Wis. Stat. § 940.225, which states:

The Committee has decided not to define "mental illness or deficiency" in the uniform instruction. Existing statutory definitions did not seem suitable because they are written in the context of determining when treatment is required or when involuntary commitment of the mentally ill person is appropriate. For the purposes of the Sexual Assault Law, the Committee concluded that the term "mental illness or deficiency" has a meaning within the common understanding of the jury. Additional guidance as to the type of illness or deficiency required is offered by the qualifying phrase in the statute: ".. .which renders that person temporarily or permanently incapable of appraising the person's conduct."

Wis JI — Criminal 1211 n.l (emphasis added). The jury is not asked to diagnose the victim's mental illness or deficiency — the State only has to prove that the victim suffered from a mental illness or deficiency that rendered the victim incapable of appraising his or her conduct.

¶ 20. Indeed, courts in other jurisdictions addressing this issue have held that expert testimony is not necessary to establish that the victim suffered from a mental illness or deficiency. For example, in State v. Summers, 853 P.2d 953 (Wash. Ct. App. 1993), the Washington Court of Appeals explained:

Evidence which establishes a rape victim's inability to understand the nature and consequences of sexual intercourse is not the kind of technical evidence which requires medical testimony to decipher. Unlike evidence of command delusions, or medical malpractice, or the functions of computers, a witness' comprehension of the basic consequences of his or her actions can be proved or disproved from his or her testimony and testimony as to behavior.

Id. at 956. The court concluded that "[w]hile expert testimony as to a rape victim's mental incapacity may be probative, and might be required in some factual situations, there is no basis for requiring the State to establish mental incapacity by expert testimony in every case." Id. at 957. In that case, the victim testified. The court concluded that the victim's testimony was direct evidence of her lack of capacity, and that the jury was able to make a rational decision regarding her mental capacity without the aid of expert testimony. See id.

¶ 21. Moreover, when the matter to be determined is within the common understanding of the jury, lay opinion testimony may be sufficient. In light of the lack of Wisconsin precedent requiring expert testimony in cases such as this, and the lack of any statutory language defining the requisite mental illness or deficiency or requiring such testimony, we cannot conclude that expert testimony should be required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under Wis. Stat. § 940.225(2)(c).

¶ 22. Here, the jury heard testimony from the caregiver, the owner of the facility, and a police officer as to H.Vs behavior. The caregiver testified that she thought H.V suffered from severe Alzheimer's. She explained that H.V is unable to carry on coherent conversations, answers questions by laughing, or saying "no ma'am" or "yes ma'am," has to be reminded to remain at the table for meals, does not remember things that happened in the past or earlier in the day, and needs twenty-four hour supervision because of her mental deficits. The owner of the facility testified that she believes H.V is an Alzheimer's patient and has dementia. She also testified that H.V is unable to carry on a coherent conversation, cannot often remember things shortly after they happen, and would not remember what she had for breakfast if asked in the middle of the morning. Furthermore, a police officer testified that H.V could not respond to any of her questions when the officer attempted to speak with her for ten minutes. .

¶ 23. This testimony as to H.V's behavior provided a more than adequate basis upon which the trial court could conclude that whether H.V suffered from a mental illness or deficiency, under Wis. Stat. § 940.225(2)(c), was within the common understanding of the jury, and could be reasonably inferred from the testimony presented. The testimony established, among other things, that H.V is unable to have coherent conversations, cannot remember events shortly after they happen, and needs assistance maintaining her daily life. A jury could reasonably conclude, based on the evidence presented, that H.V suffered from a mental illness that rendered her incapable of appraising her conduct. Thus, we similarly conclude that there is no basis to require the State to introduce expert testimony to establish mental illness or incapacity under § 940.225(2)(c) in every case. When, as here, there is lay opinion testimony supported by ample testimony as to the victim's behavior, the existence of a mental illness or deficiency that rendered the victim temporarily or permanently incapable of appraising his or her conduct can be established without the presentation of expert testimony. As such, there was sufficient evidence presented to establish that H.V suffered from a mental illness or deficiency.

¶ 24. Finally, Perkins contends that the only evidence presented to establish that he was aware of H.V's illness was that they resided in the same facility and had a brief conversation earlier in the day in question. He insists that there is no reason to believe that he would necessarily be aware of her condition as a result. Contrary to Perkins' assertions, however, that was not the only evidence presented. The jury also heard that only seven patients resided in the facility, that they ate their meals together, that Perkins interacted with H.V on a daily basis, and that Perkins had been talking to H.V on and off for several hours on the day of the incident. Although Perkins testified that he had never spoken to H.V and did not know why she was residing in the facility, there was ample circumstantial evidence presented to allow the jury to reasonably draw the opposite conclusion. Indeed, "[c]ircumstantial evidence may be and often is stronger and as convincing as direct evidence." State v. Johnson, 11 Wis. 2d 130, 134, 104 N.W.2d 379 (1960).

¶ 25. Essentially, this boiled down to a credibility determination, and the jury chose not to believe Perkins. It is the jury's job to judge the credibility of the evidence and resolve any conflicts or inconsistencies therein. The jury could easily and reasonably conclude from the evidence presented that Perkins was aware of H.V's mental illness.

¶ 26. For these reasons, there was sufficient evidence to support Perkins' conviction. We affirm.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      Wisconsin Stat. § 940.225(2)(c) proscribes "sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition."

       In support of this contention, Perkins cites Parham v. J.R., 442 U.S. 584 (1979), and Addington v. Texas, 441 U.S. 418 (1979). However, the former concerned a due process question arising from a statute that permitted the voluntary admission of children to mental hospitals by their parents, and the latter concerned the indefinite commitment of adults; both are thus quite distinguishable from the instant case.


author: BROWN, J.

text:
    In re the Estate of Lucille E Jensen: Jennifer L. Sheppard, Appellant, v. William P. Jensen and Richard K. Hammill, Respondents.
    Court of Appeals

      No. 03-3431.

      Oral argument August 25, 2004.

    Decided October 13, 2004.

    2004 WI App 216
    (Also reported in 689 N.W.2d 667.)

      On behalf of the appellant, the cause was submitted on the briefs of and oral argument by Mark R. Hinkston of Knuteson, Powers & Wheeler, S.C. of Racine.
    On behalf of the respondents, the cause was submitted on the brief of and oral argument by Thomas W. Koss of Union Grove.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   BROWN, J.

¶ 1. This case arises out of a conflict between a warranty deed and a will, both executed by the late Lucille F. Jensen. The deed conveyed certain property to Jennifer L. Sheppard and William E Jensen as tenants in common. The will purported to leave the same land, as well as the mobile home park business located on that land, to William and his brother Richard K. Hammill. The circuit court recognized Jennifer and William as co-owners of the real property but ruled that the business belonged to the brothers. Jennifer contends that, as half-owner of the real estate, she has a right to share in the income generated from the site rentals. We conclude that this position oversimplifies the realities of the situation. The income a mobile home park generates comes not merely from ownership of the land but from extensive personal efforts, oftentimes required by law, that the park operator takes to maintain and operate the park. This enterprise has the character of a business, and we decline to make Jennifer a de facto partner. We affirm the circuit court's ruling that she is entitled to collect from the business only her share of the property's fair rental value.

¶ 2. During her lifetime, Lucille owned two adjacent parcels of land on the south side of Highway 20, also known as Washington Avenue, in Racine county, located between West Road and Highway H. The smaller parcel, containing Lucille's personal residence, comprises 2.81 acres, on which she also ran a mobile home park. She called this enterprise Jensen's Mobile Home Village and operated it as a sole proprietor. The mobile home park houses twenty-seven mobile homes, some of which extend onto the larger, mostly unimproved parcel. Lucille owned two of these mobile homes, and the rest belonged to the park's tenants.

¶ 3. On June 18, 1998, Lucille conveyed, via a warranty deed, a remainder interest in fee simple in her real estate to her son William and her granddaughter Jennifer as tenants in common. She reserved to herself a life estate and a special power of appointment, by which she could reconvey the property. Two and a half years later, on December 19, 2000, Lucille executed a will. The will attested that Lucille owned and operated as a sole proprietor a business known as Jensen's Mobile Home Village and owned the real property on which the business operated. It then gifted to her sons William and Richard both the business and the real property it occupied, 75% to William and 25% to Richard. The will also named William as personal representative of Lucille's estate.

¶ 4. Lucille died on June 22, 2002, and on December 31, William, in his capacity as personal representative, petitioned the court for a construction of the will to resolve the inconsistency between the will and the 1998 warranty deed. The court held a hearing on the issue on February 7, 2003. It determined on the basis of Lucareli v. Lucareli, 2000 WI App 133, 237 Wis. 2d 487, 614 N.W.2d 60, that because the special power of appointment was repugnant to the deed, the deed controlled with respect to the transfer of real estate, and the attempt to reconvey it by will was invalid.

¶ 5. The circuit court did not, however, see any inconsistency in treating the business itself separately from the real estate. With respect to the mobile home park, it gave effect to the will, upholding a 75% share to William and a 25% share to Richard. Accordingly, it divided the business checking account and Lucille's two mobile homes in similar proportion. It reserved the issue of postdeath income for another hearing.

¶ 6. The continued hearing took place on November 14. William maintained that the income the park generated was business income attributable to the efforts involved in operating the enterprise. He contended that to give Jennifer, in her capacity as a landowner, a share in that income would effectively make her a half partner in the business enterprise, frustrating Lucille's clear intention to leave the business only to her two sons. William agreed that Jennifer was entitled to income from the property but only to the extent of her share of the fair market rental value of the property. Similarly, Richard agreed that fair rental value was the proper amount due to Jennifer, on the theory that the estate's operation of the business on the land and Jennifer's acquiescence thereto created a tenancy at will.

¶ 7. Jennifer responded that she did have a right to the income and expenses generated by the mobile home park because the mobile home park "business" was nothing more than the collection of rents for the use of property, property in which, based on the warranty deed, she had one-half ownership in fee simple following Lucille's life estate. Her argument was as follows: The business' income came entirely from rents generated from the land the mobile homes occupied. Income from real property runs with the land and the right thereto is part of the bundle of rights, known as seizin, accompanying land ownership. Because the warranty deed had conveyed her the property as a tenant in common without expressly removing this particular stick from the bundle, Lucille did not reserve it to herself and could convey it to no one else via the will. The fact that Lucille ran the "business" during her lifetime was immaterial because she had the right to do so by virtue of her life tenancy. Thus, Jennifer was entitled to participate in the rental of her property and to take her proportionate share of the income reused from the enterprise of doing so.

¶ 8. The circuit court reiterated that the will left a business to the brothers and accepted that the mobile home park income was a business asset severable from ownership of the real estate. It analogized the mobile home park operation to the growing of crops:

I think the analogy made by Mr. Koss is a good one. This isn't a case where we have an apartment building on a piece of land. If there's a deed to that land, obviously the building transfers with the property. Here we have a trailer park. Lucille Jensen doesn't own the trailers — well, with the exception of the one, but the 27 or so trailers on the property were not owned by Lucille Jensen; they are owned individually by separate individuals, and can in fact he moved from the premises. So the analogy where a person owns land and a farmer is using that land to grow crops, the person growing the crops would certainly pay rent to the owner of the land, but the owner of the land would not be entitled to 50 percent of the value of the crops and the income generated from the crops.

The circuit court also accepted the respondents' tenancy at will argument and ruled that the estate owed Jennifer half of the fair rental value of the land. It signed an order consistent with its ruling on December 12, following a hearing in which it denied Jennifer's motion to reconsider.

¶ 9. The facts in this case are undisputed. All parties agree that Jennifer has a 50% interest in the real estate on which the park is located. The record further reflects that before Lucille's death, she owned and operated Jensen's Mobile Home Village as a sole proprietor and invested various capital and personal efforts in operating and managing the park. The park not only had a bank account, it had an office and office equipment. Lucille kept records, and her personal residence was readily accessible to the park, located as it was on the same parcel of land.

¶ 10. Following Lucille's death and into the first months of 2003, William devoted roughly fifty hours each month to various problems involved in maintaining and operating the park. He represented to the circuit court that he had to spend time executing new annual leases with all the tenants, collecting back rent, replacing delinquent tenants, and cleaning up the property. He also represented that he now spends roughly thirty hours per month on maintenance, including snow removal and lawn mowing chores.

¶ 11. The parties dispute not the facts but what meaning we ought to ascribe to them — namely, whether the rental income generated by Jensen's Mobile Home Village runs with the land, as in ordinary land rental situations or whether its source is rather the active management and operation of a business, such that it qualifies as business income. When a case presents but one account of the facts and the parties merely dispute the applicable rules of law to that factual account, we have a question of law. Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2003 WI App 230, ¶ 12, 267 Wis. 2d 800, 672 N.W.2d 105, aff'd in part and rev'd in part by 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857; Clarence Morris, Law and Fact, 55 Harv. L. Rev. 1303, 1314-15 (1942) (citing Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443 (1899)). We review such questions de novo. Park Bank-West v. Mueller, 151 Wis. 2d 476, 482, 444 N.W.2d 754 (Ct. App. 1989).

¶ 12. The respondents urge upon us the example of a widget factory operating on the premises. Certainly, that scenario is more clear-cut than the situation presented here, where the issue becomes clouded by the fact that the profits of the business are also rental income. Jennifer points out that what is being rented are her plots of land. She asserts that a mobile home park is simply a parcel of land with two or more of these rented plots, often called "pads." Thus, she asserts we should consider the park and the income therefrom as part of the real estate.

¶ 13. Jennifer's argument is neither far-fetched nor without intuitive appeal; it is simply too facile, however. It utterly discounts all of the facts in the record relating to Lucille's and William's extensive personal efforts to operate and manage the land. She concludes that they mean nothing. We disagree. We hold that the circuit did not err in treating Jensen's Mobile Home Village more like the hypothetical widget factory than like the mere renting out of a room, in which the landlord periodically collects rent and otherwise is largely absent from affairs on the premises. The court's crop-raising analogy properly recognized that like the growing of crops, the operation of a mobile home park demands the investment of time, money and labor. It is a business.

¶ 14. Several legal sources have acknowledged or described various personal efforts a mobile home park operator might encounter in the operation of his or her park. In Yee v. City of Escondido, 503 U.S. 519, 523 (1992), the United States Supreme Court described some of the conveniences and amenities that the owner of a mobile home park provides for tenants: "The park owner provides private roads within the park, common facilities such as washing machines or a swimming pool, and often utilities. The mobile home owner often invests in site-specific improvements such as a driveway, steps, walkways, porches, or landscaping."

¶ 15. Our administrative code confirms that mobile home parks in Wisconsin often conform to Yee's description. Wisconsin Admin. Code § Comm 95.09(1)(c)l (2004) refers to such structures as pump houses, recreational and laundry facilities, and office buildings for the park and provides that no unit shall be located within ten feet of such a structure. Section Comm 95.09(l)(c)3 extends its prohibition to the right of way line of any street within the park. Moreover, § Comm 95.09(3) provides detailed specifications for roadways within a park. They must conform to width requirements, have adequate lighting at night, and be graveled or paved. Also, Wis. Admin Code § ATCP 125.04(l)(c) allows a park operator to charge tenants for material and labor costs associated with moving mobile homes into or out of the park. According to Yee, these moving expenses represent a large fraction of a mobile home's value. See Yee, 503 U.S. at 523.

¶ 16. In addition to the expenditures that park owners might incur in providing the above amenities, they must comply with state licensing requirements and pay various fees. They cannot lawfully maintain or operate their parks until they obtain a license from their city, town or village, Wis. Stat. § 66.0435(2)(a), which they must renew annually, § 66.0435(3)(a), (6). Fees that the licensing authority alone might charge include a fee for the annual license, § 66.0435(3)(a); a fee for any transfer of license, subsec. (3)(b); and a monthly parking fee for each mobile home unit, subsec. (3)(c). With respect to the last, the park owner essentially remains a surety for the mobile home owner, and the licensing authority may even require the park owner to collect the fee. See{§ 66.0435(3)(c)6. State law provides no reimbursement to park owners for 98% of any collection costs they might incur in collecting parking fees. See § 66.0435(3m).

¶ 17. Wisconsin statutes and regulations also amply demonstrate that state law requires mobile home park operators to operate and maintain their parks in various ways. For example, state law requires all rental agreements to be by lease, Wis. Stat. § 710.15(lm), and in writing, Wis. Admin. Code § ATCP 125.03(1). Further, two chapters of the Wisconsin Administrative Code apply exclusively to mobile home parks. Chapter 95 of the Department of Commerce regulations includes re-

¶ 18. Wisconsin Admin. Code ch. 186 of the Public Service Commission regulations, entitled Water or Sewer Service in Mobile Home Parks, is the other chapter of code regulations exclusively devoted to regulating mobile home parks. Wisconsin Admin. Code § PSC 186.21 imposes record-keeping requirements on park operators. It requires them to keep records for three years of any water or sewer outage lasting more than one hour or affecting 25% or more of the park's occupants. Wisconsin Admin. Code §§ PSC 186.71 and 186.72 regulate water quality and supply. The former governs the quality of the water, while the latter directs the park owner to furnish park occupants with a continuous and adequate water supply. Wisconsin Admin. Code § PSC 186.76(2) obligates park owners to maintain water and sewer laterals at their own expense.

¶ 19. Obviously, these myriad sources reveal that park owners may, and often must, incur expenses from buying or leasing equipment (e.g., moving trucks, outdoor lighting fixtures), materials (e.g., gravel, cement), and human capital (e.g., movers, construction crews, office staff). They also must pay licensing fees, incur other financial risks and liabilities, and assume other personal obligations. Expenses of this nature are common in the operation of a business. Jensen's Mobile Home Village incurred such obligations simply by virtue of being a mobile home park. The circuit court's determination that the rental income from the mobile home park was business income had clear support.

¶ 20. The undisputed facts of this case are consistent with the picture one can draw from the various statutes and regulations of mobile home park operation as a business. Lucille had both an office and a personal residence on the property. In- either place, she would have fulfilled her legal responsibility to be available in or in close proximity to the park. She also kept records, so the circuit court could have concluded that she actually used the office for business purposes. Further, William was clearly performing the maintenance functions required of him by law when he engaged in lawn mowing and shoveling snow.

¶ 21. Having determined that the income from the mobile home park business was business income and not income attributable to ownership of land, we conclude that Jennifer has no interest in the business. Lucille's will bequeathed her none. Moreover, Jennifer does not contend that she meets the legal criteria necessary to claim partnership in the business. See Skaar v. DOR, 61 Wis. 2d 93, 98-99, 211 N.W.2d 642 (1973) (four criteria necessary to form a partnership; First Nat'l Bank of Kenosha v. Schaefer, 91 Wis. 2d 360, 373, 283 N.W.2d 410 (Ct. App. 1979) (burden on party asserting a partnership exists to make prima facie case). The only basis on which she purports to have a right to the business income is in her capacity as landowner, and the Wisconsin Legislature has unequivocally rejected the notion that mere co-ownership of land creates an implied partnership. See Wis. Stat. § 178.04(2); Skaar, 61 Wis. 2d at 100.

¶ 22. Finally, we agree with the circuit court's determination that the continued operation of Jensen's Mobile Home Village on the real property created a tenancy at will, entitling Jennifer to her proportionate share of the property's fair rental value. In determining the type of tenancy involved in the present case, we must apply the facts to the applicable landlord/tenant statutes. This is a question of law which we review de novo. See Park Bank-West, 151 Wis. 2d at 482. Wisconsin Stat. § 704.01(5) defines a tenant at will as a tenant without a valid lease who occupies land with the landowner's permission and under circumstances not involving the periodic payment of rent. That definition clearly fits the facts of this case. Jennifer has never objected to the business carrying on operations on her property, has never entered a lease with the business, and does not receive periodic rental payments. Jennifer has not argued that her proportionate share of the property's fair rental value is inadequate compensation for a tenancy at will, so we affirm that measure of remuneration.

¶ 23. We hold that the circuit court had ample reason to conclude that Jensen's Mobile Home Village was a business, the income from which resulted from extensive personal efforts by Lucille and later William to operate and maintain the premises, oftentimes pursuant to legal mandates. Thus, it was proper to treat the circumstances of this case like the respondents' widget factory scenario. Jennifer's position, while certainly not unreasonable, simply ignores the reality of the additional personal exertions, financial risks, and capital required to successfully manage and operate a mobile home park. We further hold that because Jennifer has consented to the business' presence on her property, the business is a tenant at will and owes her half of the premises' fair rental value.

By the Court. — Order affirmed..

       Following this ruling, Jennifer elected, pursuant to Wis. Stat. § 853.15 (2001-02), to forego a specific bequest of $20,000 in favor of the real estate the deed conveyed to her.
      All subsequent references to the Wisconsin Statutes are to the 2001-02 version, unless otherwise indicated.

       The court set a specific amount for fair rental value only for the period from Lucille's death until June 30, 2003. Because the court made clear that this amount would not be binding on any further proceedings and never addressed fair rental value subsequent to that date, such an amount has yet to be determined.

       All references to the Wisconsin Administrative Code are to the 2004 version unless otherwise indicated.

       Perhaps because of extensive state regulation, one commentator has characterized mobile home park operation as a regulated industry. See LaVonda N. Reed-Huff, Are You Still Settling For Cable? A Case for Broader Application of the FCC's Over-The-Air Reception Devices Rule, 26 Hastings Comm. & Ent. L.J. 179, 228-29 (2004) (arguing the regulated nature of the mobile home park industry explained lee's rejection of petitioners' takings clause challenge to a rent control ordinance). quirements for electricity, Wis. Admin. Code § Comm 95.13, specifications for acceptable garbage receptacles, § Comm 95.14, and management requirements, § Comm 95.15. The last, in particular, directs park operators to exert extensive personal efforts. It not only holds them responsible for maintenance of the park, it requires them to be available in the park or in close proximity to the park during reasonable hours. Sec. Comm 95.15(1).