author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Scott Leason Badker, Defendant-Appellant.

    Court of Appeals

      No. 99-2943-CR.

      Submitted on briefs June 23, 2000.

    Decided December 7, 2000.

    2001 WI App 27
    (Also reported in 623 N.W.2d 142.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Roggensack and Deininger, JJ. and William Eich, Reserve Judge.

      Petition to review denied.

   ROGGENSACK, J.

¶ 1. Scott Leason Badker appeals his convictions for first-degree intentional homicide and hiding a corpse. He claims that the circuit court erred by refusing to suppress his confession because of violations of his Fifth and Sixth Amendment rights and by refusing to dismiss the charge of hiding a corpse due to insufficient evidence. Because investigators scrupulously honored Badker's right to remain silent and because the crimes of first-degree intentional homicide and bail jumping are not so closely related as to extend Badker's Sixth Amendment right to counsel from the bail jumping charge to the first-degree homicide charge, we conclude that his suppression motion was properly denied. In addition, we conclude there was sufficient evidence to prove that Badker hid his victim's corpse. Therefore, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. On September 17, 1997, Scott Badker sexually assaulted his girlfriend, Susan Myszka, tied her up, put a noose around her neck, and told her that he was taking her to Ohio with him. Myszka managed to escape when Badker stopped for gas. He was charged in Marathon County with kidnapping, three counts of sexual assault, false imprisonment, and battery. On October 10, he was released on bail on the condition that he have no contact, including telephone contact, with Myszka.

¶ 3. Myszka wrote a letter to Badker asking him to explain why he had assaulted her, but she did not mail it. On October 25, Badker telephoned Myszka at her home to arrange a meeting. Myszka consented and met him at a gas station in Spencer. She brought the letter with her. Badker read it, then put it in an envelope addressed to his attorney and left it at a Marshfield grocery store with the understanding that the clerk would mail it. Badker and Myszka drove around in Badker's pickup throughout the evening. Eventually, they parked the truck outside a locked gate leading into the Necedah Wildlife Refuge, where, according to his confession which is the major focus of this appeal, Badker strangled Myszka to death and used a blanket to drag her body into a ditch. A fur trapper found her body early on October 26th.

¶ 4. After killing Myszka, Badker went home and burned the blanket, Myszka's purse, and some of her clothing. He then telephoned his lawyer to tell him that Myszka had been bothering him, and he mentioned Myszka's letter. The lawyer told Badker to bring the letter to his office the following day, so Badker returned to the grocery store, got the letter, and brought it to the lawyer's office on October 27. He did not tell the lawyer that he had killed Myszka. On October 30, a complaint was filed in Marathon County Circuit Court charging Badker with bail jumping based on his telephone call to Myszka on October 25. An arrest warrant was issued for the bail jumping at the same time.

¶ 5. Badker was arrested on the bail jumping charge in Eagan, Minnesota, early in the morning on October 31 by Minnesota and Wisconsin police officers. Special Agent Elizabeth Feagles of the Wisconsin Department of Criminal Investigation and Detective Gary Jepsen of the Marshfield Police Department attempted to interview Badker when he arrived at the Eagan police station. Badker told them that he had an attorney representing him on the Marathon County charges, and Feagles and Jepsen told him that they did not intend to discuss those charges. Jepsen then began reading Badker his Miranda rights, but Badker interrupted and said that his attorney had told him not to talk with police officers. Feagles and Jepsen immediately terminated the interview and turned him over to Eagan Detective Douglas Mattison for booking. During booking, Mattison said to Badker, "So you don't want to talk, huh?" Badker replied, according to Mattison, "I am not sure what I want to do." Mattison completed the booking process, then informed Feagles and Jepsen of Badker's comment. Badker was taken to an interview room, where Feagles and Jepsen asked him whether he would like to talk to them. Badker declined; Feagles and Jepsen left Badker alone in the room.

¶ 6. A few minutes later, Badker began groaning and rubbing his eyes. Another Eagan detective, Kevin McGrath, went in to check on him and asked whether he was alright. McGrath said Badker replied, "No, I think I am sick" and began pushing his left index finger against his forehead. McGrath again asked if he was alright, and he relayed that Badker replied, still pointing at his head, "I think I am sick right here. I couldn't help it. I just snapped." McGrath asked whether he wanted medical assistance, and McGrath said Badker replied, "I think I need some help." McGrath asked what type of help he wanted, and Badker said that he wanted to talk with the Wisconsin investigators. Feagles and Jepsen re-entered the interview room and read Badker his Miranda warnings. Badker told the Wisconsin investigators that he wanted to talk with them; then he confessed to murdering Myszka and dragging her body into the ditch.

¶ 7. Subsequently, Badker was charged with first-degree intentional homicide and hiding a corpse. Before trial, he moved to suppress his confession, and the circuit court denied the motion. Badker was tried before a jury, convicted on both counts, and sentenced to life in prison. He appeals.

DISCUSSION

Standard of Review.

¶ 8. Issues concerning a criminal defendant's right to counsel involve questions of historic fact applied to a constitutional standard. State v. Dagnall, 2000 WI 82, ¶ 26, 236 Wis. 2d 339, 354-55, 612 N.W.2d 680, 687. We will uphold a circuit court's findings of historic fact unless they are clearly erroneous. WISCONSIN STAT. § 805.17 (1997-98). However, whether the circuit court's findings of fact satisfy a constitutional standard is a question of law that we review de novo. Dagnall, 2000 WI 82 at ¶ 27.

¶ 9. In reviewing the sufficiency of the evidence to support a criminal conviction, we do not substitute our judgment for that of the trier of fact unless the evidence, viewed in the light most favorable to the State and the conviction, is so lacking in probative value and force that no reasonable trier of fact could have found guilt beyond a reasonable doubt. State v. Steenberg Homes, Inc., 223 Wis. 2d 511, 517, 589 NW.2d 668, 671 (Ct. App. 1998), review denied, 225 Wis. 2d 489, 594 N.W.2d 384 (1999) (citation omitted).

Fifth Amendment Right to Remain Silent.

¶ 10. Badker first argues that the circuit court should have suppressed his statements to the police because they failed to scrupulously honor his invocation of his right to remain silent before he confessed to Myszka's murder. He also claims that physical evidence obtained from his truck and from a burn barrel located at his residence should have been suppressed as the fruit of a Fifth Amendment violation. We disagree.

¶ 11. The Fifth Amendment to the United States Constitution provides, "No person . . . shall be compelled in any criminal case to be a witness against himself." "The critical safeguard of the right to silence is the right to terminate questioning by invocation of the right to silence." State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866, 869 (1985); see also Michigan v. Mosley, 423 U.S. 96, 103 (1975); Miranda v. Arizona, 384 U.S. 436, 474 (1966). An accused person may waive the right to remain silent if he or she does so knowingly, intelligently, and voluntarily and does so in an express statement. Miranda, 384 U.S. at 475-76, citing Glasser v. United States, 315 U.S. 60, 62 (1942).

¶ 12. However, the state may not badger an accused into waiving that right. "The state may again interrogate the accused after the right to silence has been invoked provided that right to silence is 'scrupulously honored.'" Hartwig, 123 Wis. 2d at 284, 366 N.W.2d at 869, quoting Mosley, 423 U.S. at 104. This protection exists to shield the accused from "repeated efforts to wear down his resistance and make him change his mind." Mosley, 423 U.S. at 105-06. Mosley outlines a five-factor framework to analyze whether interrogation was resumed without violating the defendant's right to remain silent: (1) whether the original interrogation was promptly terminated; (2) whether interrogation was resumed after a significant period of time; (3) whether the accused received Miranda warnings at the beginning of the subsequent interrogation; (4) whether a different officer resumed the questioning; and (5) whether the subsequent interrogation was limited to a different crime than the previous interrogation. Mosley, 423 U.S. at 105-06; Hartwig, 123 Wis. 2d at 284, 366 N.W.2d at 869. "The absence or presence, however, of the Mosley factors is not exclusively controlling and these factors do not establish a test which can be 'woodenly' applied." Hartwig, 123 Wis. 2d at 284-85, 366 N.W.2d at 870 (citation omitted).

¶ 13. Therefore, "law enforcement officers conducting a custodial interrogation must employ procedural safeguards sufficient to protect a defendant's . . . privilege against compelled self-incrimination." State v. Armstrong, 223 Wis. 2d 331, 351, 588 N.W.2d 606, 615 (1999), modified 225 Wis. 2d 121, 591 N.W.2d 604 (1999) (citations omitted). Determining whether an "interrogation" has taken place focuses on the perception of the accused, not the intent of the police officer. Id. at 357, 588 N.W.2d at 617; Rhode Island v. Innis, 446 U.S. 291, 301 (1980). In Innis, the U.S. Supreme Court held:

[T]he term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to .arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

446 U.S. at 300-01 (footnotes omitted). The Wisconsin Supreme Court has phrased this test as "whether the police officer's conduct or speech could reasonably have had the force of a question on the suspect." State v. Cunningham, 144 Wis. 2d 272, 278, 423 N.W.2d 862, 864 (1988).

¶ 14. We first conclude that Mattison's statement during the booking did not constitute interrogation. This statement, Badker argues, constituted interrogation because it was "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 302. At the suppression hearing, Mattison testified that he made the statement as "just conversation," and the circuit court found it was "passing of the time of day." Mattison's intent, of course, does not determine whether his statement was interrogation, but Badker did not perceive it as interrogation either. According to Mattison, Badker responded, "I am not sure what I want to do," showing that he viewed the question as an inquiry into whether he intended to talk with the Wisconsin agents, not as an attempt to elicit an incriminating response.

¶ 15. We also conclude that the truncated interview by the Wisconsin investigators that followed Badker's remark to Mattison does not constitute interrogation. Badker's statement to Mattison indicated that he might be willing to waive his right to remain silent. The Wisconsin agents spoke with Badker in response to this statement. Badker was again read the Miranda warnings, and he again said that his attorney had told him not to talk with police officers. The Wisconsin agents immediately ended the interview and left the room without asking Badker any questions reasonably likely to provoke an incriminating response. Their conduct reflects no effort to wear down Badker and change his mind with respect to his decision to remain silent.

¶ 16. Furthermore, McGrath's questions to Badker were not interrogation. Badker argues that an interrogation began when McGrath determined that Badker did not require medical assistance but continued to ask him questions. Again, we disagree. McGrath testified that he entered the room after Badker began moaning and crying. His subjective intent in entering the room is irrelevant; instead, we focus on how Badker would have perceived McGrath's questions. McGrath asked no questions about Badker's guilt or innocence, and he never suggested that Badker should waive his right to remain silent. Instead, he repeatedly asked Badker whether he needed medical assistance, a question not reasonably likely to elicit an incriminating response. When Badker replied that he thought he needed some help, McGrath asked him what kind of help he wanted. Given the circumstances, this is not a question reasonably likely to provoke an incriminating response; instead, it seems much more likely that it would have provoked a response such as "I'd like an aspirin" or "I'd like to see a doctor." It does not constitute an interrogation.

¶ 17. Therefore, we conclude that Badker was interrogated twice — once when he was brought into the Eagan police station and once after he expressed a desire unprompted by police questioning to speak with the Wisconsin investigators. Before the second interrogation, he was given Miranda warnings and freely, knowingly, and voluntarily waived his right to remain silent. At no point did the police officers make repeated efforts to wear down his resistance or make him change his mind. Instead, they scrupulously observed his right to remain silent, withdrawing immediately whenever he invoked his right and refraining from approaching him again until he expressed a desire to waive that right.

Sixth Amendment Right to Counsel.

¶ 18. Next, Badker contends that the circuit court erred in refusing to suppress his confession because it was taken in violation of his Sixth Amendment right to counsel. Although he had not been charged with Myszka's murder when he confessed, he contends that his Sixth Amendment right to counsel, had attached to the murder offense because he had invoked his right to counsel on the bail jumping charge, a closely related offense. We disagree that the bail jumping charge was closely related to Myszka's murder.

¶ 19. Under the Sixth Amendment to the United States Constitution, an accused person has the right to assistance of counsel in all criminal prosecutions. A defendant who has been arrested but not charged, however, has no right to counsel under the Sixth Amendment. State v. Lale, 141 Wis. 2d 480, 485, 415 N.W.2d 847, 849-50 (Ct. App. 1987). Instead, the Sixth Amendment right to counsel attaches once the state has begun adversary proceedings by filing a criminal complaint or issuing an arrest warrant. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Dagnall, 2000 WI 82 at ¶ 30. If the state has begun adversary proceedings on one charge but not on a second unrelated charge, the Sixth Amendment right to counsel has not attached to the second charge. Dagnall, 2000 WI 82 at ¶ 32. Once the Sixth Amendment right to counsel has attached and the accused has either invoked it or obtained counsel, "any subsequent waiver during a police-initiated custodial interview is ineffective." McNeil, 501 U.S. at 175; see also Dagnall, 2000 WI 82 at ¶ 65.

¶ 20. However, a growing number of courts recognize an exception to the offense-specific rule when charges have been filed in a "closely related" case. United States V. Covarrubias, 179 F.3d 1219, 1224-25 (9th Cir. 1999); United States v. Melgar, 139 F.3d 1005, 1014-15 (4th Cir. 1998); United States v. Arnold, 106 F.3d 37,42 (3d Cir. 1997); United States v. Doherty, 126 F.3d 769, 776 (6th Cir. 1997); United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir. 1991); Taylor v. State, 726 So. 2d 841, 845 (Fla. Dist. Ct. App. 1999); People v. Wahl, 674 N.E.2d 454, 462 (Ill. App. Ct. 1996); Whittlesey v. State, 665 A.2d 223, 234-35 (Md. 1995); Commonwealth v. Rainwater, 681 N.E.2d 1218, 1223 n.5 (Mass. 1997); State v. Tucker, 645 A.2d 111, 121 (N.J. 1994); In re Pack, 616 A.2d 1006, 1010-11 (Pa. Super. Ct. 1992); Upton v. State, 853 S.W.2d 548, 555-56 (Tex. Crim. App. 1993).

¶ 21. The purpose of the exception "is to prevent the State from interrogating a defendant about a distinct course of criminal conduct — one capable of supporting a new charge — outside of the presence of the defendant's attorney, when the fruits of a successful interrogation will be admissible as substantive proof of the charges upon which adversarial judicial criminal proceedings have commenced." Wahl, 674 N.E.2d at 462. However, the "closely related" exception is interpreted narrowly because "[t]he Sixth Amendment does not create a sanctuary for the commission of additional crimes during the pendency of an indictment." United States v. Kidd, 12 F.3d 30, 33 (4th Cir. 1993). "To fall within this exception, the offense being investigated must derive from the same factual predicate as the charged offense." Id. No single factor determines whether the offenses are closely related, Covarrubias, 179 F.3d at 1225, but the analysis considers the persons involved, the types of offenses, the locations of the crimes, and the time each was committed. Kidd, 12 F.3d at 33.

¶ 22. Assuming without deciding that Badker had invoked his right to counsel on the bail jumping charge, we nevertheless conclude that the bail jumping charge was not closely related to Myszka's murder. The factual predicate for the bail jumping charge was Badker's telephone call to Myszka at her Marshfield home at approximately 6:00 p.m. on October 25. This call violated the no-contact provision of Badker's bail agreement. By contrast, the factual predicate for the murder charge was Badker's strangling Myszka sometime before dawn on October 26 at the Necedah Wildlife Refuge. Both charges involved the same persons, but the similarity ends there. Each was a separate offense that would have to be proven separately. The offenses of first-degree intentional homicide and bail jumping contain no common elements. The offenses are distinct in time; more than six hours passed between Badker's telephone' call and Myszka's murder, during which time the two drove from Spencer to Rhinelander and back, making several stops along the way. Finally, the offenses are distinct in location. Badker called Myszka from Spencer, which is in Wood County. He killed her at the Necedah Wildlife Refuge, in Juneau County. More than thirty miles separate the two locations. Accordingly, we conclude that the two offenses are not closely related.

¶ 23. Because the two offenses are not closely related, we also conclude that Badker's Sixth Amendment right to counsel had not attached for the offense of first-degree intentional homicide when Badker confessed to Myszka's murder. Accordingly, the circuit court did not err in refusing to suppress Badker's confession.

Sufficiency of the Evidence.

¶ 24. Badker contends that the evidence was insufficient to convict him of violating WlS. STAT. § 940.11(2), which provides, "Whoever hides ... a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class D felony." Badker challenges the sufficiency of the evidence with respect to whether his actions constitute "hiding" a corpse.

¶ 25. Wisconsin Stat. § 940.11(2) does not define the word "hides," nor has any Wisconsin published appellate case; therefore, we look to the standard dictionary definition for guidance. Webster's II New College Dictionary 521 (1999) defines "hide" as "to put or keep out of sight."

¶ 26. In his statement to the Wisconsin investigators, Badker said he killed Myszka inside his truck and her body fell out when he opened the door and unbuckled her seatbelt. However, he did not leave her body where it landed. Instead, he rolled it onto a blanket, then pulled the blanket over to a ditch inside the Necedah Wildlife Refuge and dumped her corpse into the water. Photographs of the location entered into evidence at trial reveal that it is a wooded, secluded spot. A locked gate prevents cars from driving into it. Except for trappers, members of the public are not allowed past the gate until twenty-four hours before the opening of gun deer hunting season. Myszka's corpse was found inside the Necedah Wildlife Refuge in a ditch more than six feet deep. She was lying in ten inches of water and was located about thirteen feet beyond the gate and 1,100 feet from the centerline of a gravel road. The secluded nature of the spot where the corpse was discovered, as well as Badker's actions in dragging it to the ditch and rolling it down into the water, provided sufficient evidence from which the jury could have concluded beyond a reasonable doubt that he hid Myszka's corpse.

CONCLUSION

¶ 27. Because investigators scrupulously honored Badker's right to remain silent and because the crimes of first-degree intentional homicide and bail jumping are not so closely related as to extend Badker's Sixth Amendment right to counsel from the bail jumping to the first-degree homicide charge, we conclude that his suppression motion was properly denied. In addition, we conclude there was sufficient evidence to prove that Badker hid his victim's corpse. Therefore, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

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

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

       The Fifth Amendment privilege against self-incrimination is applied to the states by the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 3 (1964).

       It is not disputed that Badker was in custody during this period.

       Badker argues that State v. Price, 111 Wis. 2d 366, 330 N.W.2d 779 (Ct. App. 1983), requires us to conclude that McGrath's statements constituted an interrogation. Price had invoked his right to an attorney but continued to converse with police officers. During the conversation, he asked what was likely to happen to him and whether he could obtain medical treatment for headaches. One police officer told him that he had been identified in a line-up; another added, "Roger, if you want help, this is the place to start." Price then confessed. We concluded that the officer's statement was reasonably likely to elicit an incriminating response and therefore constituted interrogation. Unlike the police officer's statement in Price, McGrath's question was not coupled with a statement indicating Badker's guilt. Furthermore, it was not an invitation to seek help from the police; instead, it was a question asked to determine whether Badker wanted medical assistance.

       The Sixth Amendment right to counsel is applied to the states through the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

       The elements of first-degree intentional homicide are that the defendant (1) caused death (2) with intent to kill (3) in the absence of mitigating circumstances. WISCONSIN Stat. § 940.01. The elements of felony bail jumping are that the defendant (1) was charged with a felony, (2) was released from custody on bond, and (3) intentionally failed to comply with the terms of the bond. Wisconsin Stat. § 946.49(l)(b).

       When not specifically defined in the statutes, a non-technical term must be given its ordinary and accepted meaning, and that meaning may be ascertained from a recognized dictionary. State v. Steenberg Homes, Inc., 223 Wis. 2d 511, 519 n.3, 589 N.W.2d 668, 672 n.3 (Ct. App. 1998).


source: Caselaw Access Project

license: Public Domain

text:
    In the Interest of Joseph E. G., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. Joseph E. G., Respondent-Appellant.

    Court of Appeals

      No. 99-3248.

      Submitted on briefs June 23, 2000.

    Decided December 7, 2000.

    2001 WI App 29
    (Also reported in 623 N.W.2d 137.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Susan E. Alesia, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Tris M. Baker, assistant district attorney.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and William C. Wolford, assistant attorney general.
    Before Vergeront and Roggensack, JJ., and William Eich, Reserve Judge.

      Petition to review denied.

   ROGGENSACK, J.

¶1. Joseph E.G., a juvenile convicted of false imprisonment of another juvenile as a party to the crime, appeals an order denying his motion to be excused from the statutory requirement that he register as a sex offender. He contends that WlS. STAT. § 301.45(lm) (1997-98) violates his constitutional rights to equal protection and substantive due process. Because the legislature had a rational basis for not allowing juveniles convicted of false imprisonment to be excused from registration, we conclude that Joseph's constitutional rights have not been violated. Therefore, we affirm the order of the circuit court.

BACKGROUND

¶ 2. Fifteen-year-old Joseph E.G. and Eddie Johnson confronted a thirteen-year-old girl on the street in Waterloo. Joseph slapped her in the face, then forced her into the backseat of the car and held her inside while Johnson drove off. A short time later, Johnson stopped, and the pair forced her into the trunk, shut it, and again drove off. Joseph and Johnson later removed her from the trunk, ordered her to wade into a lake, threw gravel at her, slapped her, and forced her to kiss Johnson's clothed buttocks. Johnson also placed his finger in her mouth and told her to "suck it like a bottle." Both Joseph and Johnson repeatedly threatened to kill her if she reported the incident to the police.

¶ 3. Joseph was convicted of false imprisonment as a party to the crime and other crimes not relevant to this appeal. He was required to register as a sex offender pursuant to Wis. STAT. § 938.34(15m)(bm). He requested to be excused from the registration requirement, pursuant to WlS. STAT. § 301.45(lm). The circuit court denied his request because false imprisonment is not one of the crimes listed in the statute for which registration may be excused. Joseph appeals, claiming that not including conviction for false imprisonment within that group of crimes for which registration may be excused violates his constitutional rights to equal protection and substantive due process.

DISCUSSION

Standard of Review.

¶ 4. We review challenges to the constitutionality of a statute without deference to the decision of the circuit court. State v. Ruesch, 214 Wis. 2d 548, 553, 571 N.W.2d 898, 900 (Ct. App. 1997).

Constitutional Challenges.

¶ 5. Statutes generally are presumed to be constitutional, and one challenging a statute on constitutional grounds bears the heavy burden of proving unconstitutionality beyond a reasonable doubt. Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis. 2d 1, 18, 558 N.W.2d 83, 90 (1997); Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 737, 469 N.W.2d 203, 205 (Ct. App. 1991). There are two major categories of constitutional challenges: "facial" challenges and "as-applied" challenges. Ruesch, 214 Wis. 2d at 556, 571 N.W.2d at 902 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)); State v. Weidner, 2000 WI52, ¶ 1, 235 Wis. 2d 306, 310, 611 N.W.2d 684, 686. Joseph makes as-applied challenges to WlS. Stat. § 301.45(1m). Therefore, he must prove, beyond a reasonable doubt, that as applied to him the statute is unconstitutional.

A. Equal Protection.

¶ 6. Joseph argues that WlS. STAT. § 301.45(lm) violates his constitutional right to equal protection because it allows juveniles adjudicated delinquent because of sexual contact with a child who is not more than four years younger than the offender to seek to be excused from registration, but it does not allow him to do so because he was convicted of false imprisonment, even though he is a juvenile and his victim was not more than four years younger than he.

¶ 7. The Equal Protection Clause prohibits discrimination based on certain invidious classifications, but it does not, in and of itself, create substantive rights. Ruesch, 214 Wis. 2d at 564, 571 N.W.2d at 905 (citation omitted). The classification of which Joseph complains, giving the opportunity not to register to those convicted of certain crimes while refusing it to others, is not a suspect classification, or even a quasi-suspect classification. Acknowledging this, Joseph concedes that WlS. Stat. § 301.45(lm) should be evaluated using the rational basis test. However, he contends that there is no rational basis for the legislature's omission of false imprisonment from the list of crimes for which the circuit court may excuse registration. We disagree.

¶ 8. When considering an equal protection challenge that does not involve a suspect or quasi-suspect classification, "the fundamental determination to be made ... is whether there is an arbitrary discrimination in the statute . . ., and thus whether there is a rational basis which justifies a difference in rights afforded." Ruesch, 214 Wis. 2d at 564, 571 N.W.2d at 905 (quoting State v. Akins, 198 Wis. 2d 495, 503, 544 N.W.2d 392, 395 (1996)). A statute violates equal protection if it creates an irrational or arbitrary classification. Id. However, a statute that creates a classification that is rationally related to a valid legislative objective does not violate equal protection guarantees. Id.

¶ 9. The purposes underlying the registration requirements of WlS. STAT. § 301.45 are to protect the public and to assist law enforcement officials. State v. Bollig, 2000 WI 6, ¶ 21, 232 Wis. 2d 561, 574, 605 N.W.2d 199, 205. WISCONSIN STAT. § 175.45 (1993-94), which originally established sex offender registration, required registration of all persons convicted of or adjudicated delinquent of first-degree or second-degree sexual assault, first-degree or second-degree sexual assault of a child, or repeated acts of sexual assault of the same child. Later, 1995 Wis. Act 440, which renumbered § 174.45 to § 301.45, required registration for eight additional sex-related crimes: sexual contact by a therapist, third-degree sexual assault, incest, causing a child to view or hear sexual activity, sexual exploitation of a child, incest with a child, soliciting a child for prostitution, and exposing a child to harmful materials. The same 1995 act also amended the statute to require registration of those convicted of child enticement, which is not necessarily a sex crime, and registration for false imprisonment. 1995 Wis. Act 440.

¶ 10. Enacted through 1997 Wis. Act 130, WlS. Stat. § 301.45(lm) permits the circuit court to excuse certain juvenile offenders from registration if all of the following requirements are met: (1) the offender is younger than nineteen; (2) the offender was convicted of first-degree sexual assault of a child, second-degree sexual assault of a child or repeated acts of sexual assault of the same child; (3) there is no more than a four-year age difference between the child and the offender; and (4) protection of the public does not require registration of the offender.

¶ 11. Interpreting Wis. Stat. § 301.45(lm) as a whole, we conclude that the legislature's purpose was to craft a narrow exception to mandatory registration for sex offenders in cases of factually consensual sexual contact between two minors who, but for the age of the younger child, would have broken no law. For example, sexual contact between an eighteen-year-old male and a fifteen-year-old female, even though factually consensual, could result in the male's conviction for second-degree sexual assault of a child because a person under the age of sixteen cannot legally consent to sexual relations. There, the offender and the fifteen-year-old child could have been equally consenting participants, where the offender was not a predatory seeker of sexual contacts. In such a case, the circuit court has the discretion to excuse the offender from registration if it determines that factually consensual contact has occurred, the offender presents no danger to the public, and the court is satisfied that the purposes of § 301.45 are not undermined by excusing registration. However, if the court is concerned about whether the sexual contact was truly consensual or if the offender appears to be predatory in seeking out younger partners for sexual contacts, the circuit court can deny the juvenile's request to be excused from the registration requirements of WlS. STAT. §§ 938.34(15)(bm) and 301.45.

¶ 12. In contrast to the facts that could relieve an offender from registration for those crimes enumerated in WlS. STAT. § 301.45(lm), the crime of false imprisonment is never consensual and never a crime solely because of the age of the victim. False imprisonment is proscribed in WlS. STAT. § 940.30, which states:

Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class E felony.

It has three elements: (1) intentional confinement or restraint; (2) done without the consent of the victim; and (3) with knowledge that the perpetrator has no lawful authority to confine or restrain the victim. Baldwin v. State, 62 Wis. 2d 521, 525, 215 N.W.2d 541, 543 (1974). Because the restraint or confinement prohibited by § 940.30 must be done without the victim's consent, willing participation can never occur. Additionally, the age of the victim has no effect on whether an offender's conduct has violated § 940.30. Accordingly, the legislature could have rationally concluded that a juvenile who would confine or restrain a child without the child's consent is a greater potential threat to public safety than a person involved in a factually consensual sexual relationship with a child. Therefore, we conclude the classification created by § 301.45(lm) is rationally related to protecting the public, meets one of the legislative objectives of registration, and does not violate constitutional guarantees of equal .protection as applied to Joseph.

B. Substantive Due Process.

¶ 13. Joseph also contends that Wis. Stat. § 301.45(lm) violates substantive due process because it is without a rational basis. Substantive due process protects one from state conduct that "shocks the conscience ... or interferes with rights implicit in the concept of ordered liberty." Salerno, 481 U.S. at 746 (additional citations omitted). Due process also requires that the means chosen by the legislature to effect a valid legislative objective bear a rational relationship to the purpose sought to be achieved. State v. Jackman, 60 Wis. 2d 700, 705, 211 N.W.2d 480, 484 (1973).

¶ 14. Joseph's substantive due process contention points out nothing that could shock the conscience or interfere with rights that are implicit in the concept of ordered liberty. Rather, it is simply a restatement of his equal protection claim. However, we have already identified a rational relationship between protection of the public and the omission of false imprisonment from those crimes listed in Wis. Stat. § 301.45(lm). Therefore, that same reasoning applies equally to defeat Joseph's due process challenge. Accordingly, we need not provide a separate substantive due process analysis. Jones v. United States, 463 U.S. 354, 362 n.10 (1983); see also State v. McManus, 152 Wis. 2d 113, 130-32, 447 N.W.2d 654, 660-61 (1989).

CONCLUSION

¶ 15. Because we have concluded that the legislature had a rational basis for not allowing juveniles convicted of false imprisonment to be excused from registration, we conclude Joseph has not proven that Wis. Stat. § 301.45(lm) is unconstitutional beyond a reasonable doubt as applied to him. Accordingly, we affirm the order of the circuit court.

By the Court. — Order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wisconsin Stat. § 938.34(15m)(bm) states:
      If the juvenile is adjudicated delinquent on the basis of a violation ... of s. 940.30 ... if the victim was a minor and the juvenile was not the victim's parent, the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45(lm).

       Wisconsin Stat. § 301.45(lm) provides:
      Exception to registration requirement, (a) A person is not required to comply with the reporting requirements under this section if all of the following apply:

        1. The person meets the criteria under sub. (l)(a) to (dh) based on any violation, or on the solicitation, conspiracy or attempt to commit any violation, of s. 948.02(1) or (2) or 948.025 or of a law of another state that is comparable to s. 948.02(1) or (2) or 948.025.
      2. At the time of the violation, or of the solicitation, conspiracy or attempt to commit the violation, of s. 948.02(1) or (2) or 948.025 ... the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child.
      3. It is not necessary, in the interest of public protection, to require the person to comply with the reporting requirements under this section.

       The due process and equal protection clauses of the Wisconsin Constitution are the substantial equivalents of their respective clauses in the federal constitution. State ex rel. Cresci v. Schmidt, 62 Wis. 2d 400, 414, 215 N.W.2d 361, 367 (1974).

       Joseph bases his challenge on the Fourteenth Amendment of the United States Constitution and art. I, § 1 of the Wisconsin Constitution.

       The crime of child enticement includes enticing a child for the purpose of committing sexual crimes, but it also includes enticement of a child for the purpose of causing harm to the child or giving or selling the child controlled substances. WISCONSIN Stat. § 948.07.


author: VERGERONT, J.

text:
    Woodward Communications, Inc., and Great Northern Insurance Company, Plaintiffs-Respondents, v. Shockley Communications Corporation, and Transportation Insurance Company, Defendants-Appellants.
    Court of Appeals

      No. 99-3268.

      Submitted on briefs June 23, 2000.

    Decided December 7, 2000.

    2001 WI App 30
    (Also reported in 622 N.W.2d 756.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Edward A. Hannan and David J. Hanus of Hannan, Siesennop & Sullivan of Milwaukee.
    On behalf of the plaintiffs'-respondents, the cause was submitted on the brief of Steven B. Fisher of Daar, Fisher, Kanaris & Vanek, P.C. of Chicago, Illinois, and David Pliner, Esq. of Corneille Law Group, L.L.C. of Madison.
    Before Dykman, P.J., Vergeront and Deininger, JJ.
   VERGERONT, J.

¶ 1. The contract language at the center of this dispute provides that Shockley Communications Corporation, the seller of the assets of a radio station, "represents and warrants ... [it shall] at its expense . . . keep in good repair and operating efficiency, all tangible personal property to be transferred to the Buyer," Woodward Communications, Inc. Shockley appeals a summary judgment determining that it breached this contractual provision because the communications tower subsequently collapsed as the result of a latent defect, and awarding Woodward $267,500 in damages. We agree with Shockley that the circuit court erred in interpreting this language as an express warranty that the tangible personal property had no latent defects. Because there are no disputed facts and because Shockley is entitled to judgment that it did not breach this contractual provision as a matter of law, we reverse and remand to the trial court with instructions to dismiss the complaint.

BACKGROUND

¶ 2. On May 3, 1996, Shockley entered into an agreement with Woodward whereby Shockley agreed to sell and Woodward agreed to purchase the assets of WOLX-FM, a radio station in Baraboo, Wisconsin, for the- sum of $10,500,000. One of the assets was a 640-foot communications tower, which the agreement designated as "tangible personal property." Section 13 of the agreement provided:

Representations and Warranties by Seller. The Seller represents and warrants as follows:
(h) Seller, at its expense, shall keep in good repair and operating efficiency, all tangible personal property to be transferred to the Buyer.

The closing took place on July 29, 1996. At the time of closing, the radio station was operating and continued to do so until the tower collapsed during a wind and ice storm on December 31,1996.

¶ 3. The following facts concerning the cause of the collapse were stipulated by the parties. During the storm, a metal U-bolt, which was a component of one of the eight U-bolt anchor assemblies used to secure the tower to its base, broke without warning, causing the tower to collapse. The o'ne-and-one-eighth inch diameter U-bolt contained a hidden, internal defect in the nature of a microscopic, internal brittle crack, and this defect was a cause of the U-bolt breaking on December 31,1996. The defect was created when the bolt was cast or forged, on or before 1948. The defective bolt was a component of one of the assembly anchors when the tower was erected in 1948, and the tower remained in place from the date it was erected until it collapsed. Between the time of the manufacture of the bolt and the tower's collapse, the defect "was a completely latent condition that was not detectable except by [certain] destructive, metallurgical tests. . . ." Between the date Shockley acquired the radio station and tower in 1985 and the date of the closing of the sale to Woodward, Shockley had the tower inspected by an outside firm on May 8, 1985, August 30, 1987, August 31, 1988, May 30, 1990, May 15, 1995, and May 13,1996; and reports were prepared as a result of each inspection.

¶ 4. Woodward filed this action on January 5, 1998. The complaint contained a number of claims, but the only ones that concern this appeal are the breach of contract claim and the breach of express warranty. On Woodward's first motion for partial summary judgment the circuit court concluded subsection 13(h) of the agreement was unambiguous and was an express warranty. However, at that time the court did not address the issue of whether the obligation to "keep in good repair and operating efficiency" was an express warranty against latent defects, as Woodward argued.

¶ 5. On Woodward's subsequent motion for partial summary judgment, the trial court determined the only remaining issues were whether the latent structural defect was the cause of the tower's collapse and what, if any, damages should be awarded. After discovery, the parties submitted a stipulation of facts on causation, which we have already referenced, and stipulated that the damage resulting from the tower's collapse was $267,500. Although we are unable to find in the circuit court's decision on Woodward's second motion for partial summary judgment, or elsewhere in the record, that the court explicitly ruled subsection 13(h) was an express warranty against latent defects, it appears the parties and the court understood the court had so ruled. After the stipulation on cause and damages, Woodward moved for entry of judgment in its favor. Without objection from Shockley, the court entered a judgment for the stipulated damages, determining in the judgment that Shockley had breached its express warranty to keep the tower in good repair and operating efficiency.

DISCUSSION

¶ 6. We treat the trial court's judgment as a summary judgment, since the court's decision was based on submissions of the parties rather than live testimony. See WlS. STAT. § 802.08(2) (1998-98). We review summary judgments de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Generally, summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

¶ 7. On appeal Shockley argues that the language of subsection 13(h) is not an express warranty that there is no latent defect in the tower. Shockley contends, since it was unaware of the defect because it was not discoverable by ordinary means, and since the defect did not affect the operating efficiency of the tower at the time of the closing, Shockley did not breach its obligation to keep the tower in good repair and operating efficiency solely because there was an existing latent defect. Woodward, on the other hand, contends the tower was not "in good repair and operating efficiency" solely because there was a latent defect at the time of the closing.

¶ 8. Although the clause in dispute appears to be a standard one in contracts for the sale of the assets of radio and television stations and other businesses, we have discovered no Wisconsin case that addresses the same or similar contract language. We therefore begin with the general principles of contract construction.

¶ 9. The interpretation of a contract is a question of law, which we review de novo. Edwards v. Petrone, 160 Wis. 2d 255, 258, 465 N.W.2d 847 (Ct. App. 1990). The objective in construing a contract is to ascertain the intent of the parties from the contractual language. Waukesha Concrete Prods. Co. v. Capitol Indem. Corp., 127 Wis. 2d 332, 339, 379 N.W.2d 333 (Ct. App. 1985). If the terms of the contract are plain and unambiguous, it is the court's duty to construe the contract according to its plain meaning even though a party may have construed it differently. Id.

¶ 10. To place the disputed clause in context, we summarize other relevant portions of the agreement. The sale was not to be consummated until the Federal Communications Commission (FCC) had consented to the transfer of the license to Woodward, and the closing date was not to take place until after final FCC approval. The parties contemplated the FCC approval might take some time, as indicated by the provision terminating the agreement if final FCC approval was not granted within 240 days, with certain exceptions. Accordingly, the agreement addressed the conduct of the business from the date of the execution of the agreement to the closing date, providing that Shockley would operate the station during this time period and specifying Shockley's obligations in doing so.

¶ 11. Subsection 13(h) imposes on Shockley the obligation to "keep in good repair and operating efficiency" all tangible personal property to be transferred at closing. The subsection also imposes the additional obligation that Shockley bear the expense for doing so. Because the tangible personal property was to be used in the operation of the business by Shockley from the date of the execution of the agreement to the date of closing, which could be several months or more, the parties provided for the care of the tangible personal property, including the tower, during that time period. The phrase "keep in good repair and operating efficiency" uses commonly understood terms. "Keep" in this context conveys that, on the date of execution of the agreement, the tower was in good repair and operating efficiently. The entire phrase plainly requires that Shockley make any repairs and perform any maintenance necessary to keep the tower in a condition that permits it to operate efficiently.

¶ 12. There is no suggestion in this phrase that Shockley is representing or warranting that there are no latent or hidden defects in the tangible personal property. It is true that, if a defect latent on the date of execution of the agreement were to cause the tower to need repairs or not to operate efficiently from that date to the date of closing, Shockley would have the obligation to make the needed repairs at its expense. However, if the latent defect does not affect the operating efficiency of the tangible personal property up until the date of the closing, and remains undiscovered by routine maintenance inspections, the language does not suggest Shockley has any obligation, or assumes any responsibility, with respect to that latent defect.

¶ 13. We do not agree with Woodward that casting subsection 13(h) as an "express warranty" affects the interpretation of the language used in the subsection. The distinction between an express warranty and an implied warranty exists under the Uniform Commercial Code (U.C.C.), compare WlS. STAT. § 402.313 with WlS. Stat. §§ 402.314 and 402.315, and is significant, among other reasons, in resolving conflicts between warranties under the U.C.C. See Wis. Stat. § 402.317. In the context of deciding Woodward's claim of implied warranty, the court determined this transaction was not governed by the U.C.C. See footnote 2. Woodward does not argue that determination was incorrect nor does it direct us to any law apart from the U.C.C. that distinguishes between express and implied warranties or that creates implied warranties.

¶ 14. In any case, outside of the U.C.C., a warranty is simply "... an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended to relieve the promisee of any duty to ascertain the fact for himself, and amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue." Dittman v. Nagel, 43 Wis. 2d 155, 160, 168 N.W.2d 190 (1969). Since Shockley "represents and warrants" it will perform the obligations expressed in subsection 13(h), we agree with Woodward that it is entitled to rely on Shockley's assurance that it will do this, and is relieved of the duty of ascertaining whether Shockley has kept the tangible personal property in good repair and operating efficiency from the date of execution of the agreement to the date of closing. However, the use of the phrase "represents and warrants" does not transform subsection 13(h) into a warranty of a specific type — that is, a warranty that there are no latent defects.

¶ 15. The same is true with respect to two other contract provisions on which Woodward relies. Subsection 13(n) provides: "All of the representations and warranties by Seller contained in this agreement shall be true on and as of the Closing Date. All such representations, warranties and information shall be deemed to be made on and as of the Closing Date." Subsection 8(a)(vii) provides that on the closing date Shockley shall deliver to Woodward, among other items, "[a] certificate confirming the accuracy of Seller's representations and warranties as of the Closing." Because of these provisions, Shockley has not only warranted on the date of execution that it will keep the tangible personal property in good repair and operating, efficiency until that property is transferred to Woodward on the date of closing, but Shockley is also warranting that, as of the date of closing, the tangible personal property will have been kept in good repair and operating efficiency, and it is warranting it will so certify at closing. This certification, in turn, is a condition, among many others, of Woodward's obligation to fulfill its obligations under the agreement. However, the substance of the warranty concerning the tangible personal property that Shockley makes as of the date of closing depends upon the language of subsection 13(h). Calling Shockley's obligations a "warranty" or an "express warranty" does not alter that language.

¶ 16. Woodward refers us to a number of cases from other jurisdictions in support of its argument that the language of subsection 13(h) plainly means Shockley warranted there were no latent defects in the tower. However, we do not consider any of these cases persuasive, because the language of the contracts, the nature of the transactions and the facts of the alleged breach are not sufficiently similar to those in this case. See, e.g., Wolfe v. White, 225 P.2d 729 (Utah 1950) (landlord's promise to "keep [the premises] in good condition and repair" during lease term included fixing roof that was dilapidated at time tenant moved in); Turner v. Central Hardware Co., 186 S.W.2d 603 (Mo. 1945) (representation by retail merchant that new ladder is "safe and sound" is express warranty that covers latent defect in wood); J.A. Tobin Const. Co. v. Davis, 81 S.W.2d 474 (Mo. Ct. App. 1935) (seller of used paving equipment breached contract provision that equipment "is to be in serviceable condition" when, upon delivery, buyer found equipment in unserviceable condition, even though buyer had previously inspected and approved equipment). •

¶ 17. The term "latent defect" is a commonly used and understood term. Had the parties intended Shockley to warrant there were no latent defects in the tangible personal property, it would have been a simple matter for them to so state. We are satisfied that the terms the parties chose to employ in subsection 13(h), even when combined with the warranty-on-the-date-of-closing language in subsection 13(n) and the certification obligation in subsection 8(a)(vii), do not encompass a warranty that there were no latent defects in the tower on the date of closing, as long as that defect neither necessitated repair nor interfered with the operating efficiency of the tower up to the date of the closing.

¶ 18. In summary, we conclude that under subsection 13(h) Shockley was obligated to make all repairs and perform all maintenance between the date of the execution of the agreement and the date of closing that were necessary to keep the tower operating efficiently. Under subsection 13(n), Shockley was obligated to warrant on the closing date that it had kept the tower in good repair and operating efficiency up to the date of the closing. The tower had been inspected by an outside firm periodically after Shockley acquired the station in 1985, with the last inspection occurring on May 13, 1996, shortly after execution of the agreement. The report of the last inspection shows the condition of the various components of the tower that were inspected were "good" or "o.k." There is no evidence any repairs were necessary to keep the tower operating efficiently, from that inspection to the date of closing that were not done, nor is there any evidence the tower was not operating efficiently on the date of closing.

¶ 19. Finally, we conclude Shockley is entitled to a summary judgment that it did not breach its contract with Woodward and did not breach an express warranty. We therefore reverse the judgment entered in Woodward's favor and remand to the trial court with directions to dismiss the complaint.

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

       Shockley's insurer, Transportation Insurance Company, is a defendant along with Shockley and also appeals. We refer to both appellants as "Shockley." Woodward's insurer, Great Northern Insurance Company, is a plaintiff along with Woodward. We refer to both appellees as "Woodward."

       Among the other claims contained in the complaint was a claim for breach of implied warranty. The court dismissed this claim after concluding Shockley was not a merchant under WlS. STAT. § 402.314 (1997 — 98) since the transaction was an occasional sale.

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

         See Nichols, Cyclopedia of Legal Forms §§ 7.4121,7.4131 (Rev. 1997); 16 Am. Jur. 2d Legal Forms § 226.161 (Rev. 1994).

       Woodward cites to Ewers v. Eisenzopf, 88 Wis. 2d 482, 487, 276 N.W.2d 802 (1979) (quoting U.C.C. WlS. STAT. § 402.313(1)(a)), for this definition of express warranty: "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a [bjasis of the bargain."

       Subsection 19(c) provides that "the representations and warranties of Seller made in this Agreement will survive the Closing for a period of two (2) years, except that the warranties of title to the real estate described in Appendix 1(a) shall survive the Closing for a period of three (3) years." The parties agree subsection 19(c) is a statute of limitations clause, meaning a suit for a breach of subsection 13(h) must -be brought within two years of the closing.

       Section 15 provides: "All obligations of Buyer under this Agreement are subject to the fulfillment, prior to or at the Closing Date, of the following conditions, any of which may be waived by the Buyer:.... (b) The representations and warranties of Seller contained in Section 13 of this agreement shall be true in all material respects at and as of the Closing Date. The Seller shall provide a certificate with respect to the accuracy of the representations and warranties in Section 13 on the Closing Date."

       We agree with Woodward that the clauses obligating Shockley to maintain insurance on the real and personal property (subsection 13(d)) and placing on Shockley the responsibility for casualty loss of the listed assets until the closing date, with the provision Shockley either promptly repair, replace, or restore the property to its condition prior to the loss or pay the insurance proceeds to Woodward in an adequate amount (subsection 15(a)) do not, in themselves, remove any obligations Shockley has under subsection 13(h). However, if Woodward intends to suggest, in addition, that the insurance and risk of loss clauses support its interpretation of subsection 13(h), we do not see how that is the case, and Woodward does not develop this argument.

       Woodward asserts in its statement of facts that Professor German Gurfinkel concluded to a reasonable degree of engineering certainty that "As of May 3, 1991, the tower was defective and was not in a state of 'good repair and operating efficiency.'" (Because of the context, we assume Woodward means May 3,1996.) Professor Gurfinkel does express this opinion, as of the date of the closing, in the last paragraph of an affidavit Woodward submitted in support of its motion for partial summary judgment. The rest of the affidavit addresses the cause of the collapse of the tower and is consistent with the facts concerning the defective bolt and the cause of the collapse of the tower to which the parties later stipulated. Professor Gurfinkel's opinion in the last paragraph was not stipulated to by the parties. In essence, Professor Gurfinkel's opinion in the last paragraph of the affidavit is an opinion on the application of the disputed contract language to the undisputed facts concerning the cause of the collapse. This is the very issue the parties are disputing on this appeal, and it is a question of law for this court. We therefore do not consider Professor Gurfinkel's opinion.


author: ANDERSON, J.

text:
    In re the Marriage of: James W. Jeffords, Petitioner-Respondent, v. Pamela Scott (Jeffords), Respondent-Appellant.
    Court of Appeals

      No. 00-0525.

      Submitted on briefs October 23, 2000.

    Decided December 13, 2000.

    2001 WI App 6
    (Also reported in 624 N.W.2d 384.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Daniel J. Weiss, of Daniel J. Weiss, S.C., Mequon.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Richard E. Reilly and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown, Milwaukee.
    Before Brown, P.J., Nettesheim and Anderson, JJ.
   ANDERSON, J.

¶ 1. Pamela Scott (Jeffords) insists that the family court erroneously exercised its discretion in modifying the property division after a loan she received from James W. Jeffords, in anticipation of the property division, was discharged in bankruptcy. We reject her argument because the court properly exercised its discretion in clarifying James's obligations to provide Pamela with a Qualified Domestic Relations Order (QDRO) representing an interest in his 401k plan. We also reject her request for interest on the QDRO. Therefore, we affirm.

¶ 2. James and Pamela were divorced on January 28,1997. As part of the divorce, they entered into a marital settlement agreement (MSA) to resolve all of the issues relating to the property division. The portions of the agreement pertinent to this appeal provided that (1) James was to keep the "Jeffords Motor Car Co. 401k plan subject to the amount awarded to Pamela below"; (2) Pamela was to receive "$100,000 from the Jeffords Motor Car 401k plan via Qualified Domestic Relations Order"; and (3) the transfer of the QDRO from James to Pamela was conditioned upon Pamela's repayment of a loan:

James has provided an interest free loan of $50,000.00 to Pamela in anticipation of this agreement. The loan shall be repaid to James upon Pamela's receipt of the $100,000.00 payment from the 401k plan as set forth above.

¶ 3. In August 1998, Pamela filed for voluntary bankruptcy and listed James as an unsecured creditor. Her discharge in bankruptcy included the $50,000 loan referenced in the MSA. In May 1999, James sought clarification of the divorce judgment in the circuit court:

[A]s to the $50,000 owed to James by... Pamela ... and the $100,000.00 owed to Pamela by James from the Jeffords Motor Car retirement plan in view of the fact that Pamela has been adjudged bankrupt as to the $50,000 debt to James and the clear intention of the parties at the time of divorce was that James would off-set the $50,000 owed to him by Pamela against the obligátion to pay Pamela a portion of his retirement plan.

¶ 4. After an evidentiary hearing, the family court began with the proposition that it is a court of equity and can grant relief under WlS. STAT. § 806.07(l)(g) (1997-98). The court concluded that under a literal reading of the MSA, James's obligation to provide a QDRO to Pamela was preconditioned upon her repayment of the $50,000 loan, but because she failed to repay the loan, James could be excused from providing the QDRO. However, the court determined that it would do equity for the reason that the MSA manifested the parties' intent that there was to be an equitable property division. The court reasoned that the MSA provided a quid pro quo approach to the QDRO and repayment of the loan and ordered James to provide a $50,000 QDRO.

¶ 5. Pamela filed a motion for reconsideration asserting that the court erred because the decision did not (1) follow U.S. bankruptcy law and (2) did not follow Wisconsin case law dealing with the U.S. Bankruptcy Code. The family court denied her motion and she appeals.

¶ 6. Although Pamela does not question the authority of the family court to grant relief to James, we note that the Wisconsin Supreme Court recently-acknowledged that:

[T]he legislature and the courts recognize that a final division of property in a divorce judgment does not always resolve all matters between the parties and that remedial action by the circuit court may be needed to effectuate the objectives of the final division without disrupting the finality of the judgment. While the final division of property in a divorce judgment is indeed final, the jurisdiction of the court "eontinue[s] until the property [is] disposed of pursuant to the provisions of the division contained in the judgment of divorce." Section 767.01(1) vests in the circuit courts the authority to do all things "necessary and proper" in actions affecting the family and "to carry [the courts'] orders and judgments into execution."

Washington v. Washington, 2000 WI 47, ¶ 14, 234 Wis. 2d 689, 611 N.W.2d 261 (citations and footnote omitted).

¶ 7. In this appeal, Pamela contends that the family court mistakenly used its discretion to reopen the property division and fashion an equitable remedy. The test on review of the family court's order is: Was the order a proper exercise of discretion? See Conrad v. Conrad, 92 Wis. 2d 407, 414, 284 N.W.2d 674 (1979).

¶ 8. Pamela builds her argument upon our decision in Spankowski v. Spankowski, 172 Wis. 2d 285, 493 N.W.2d 737 (Ct. App. 1992). She insists that Spankowski stands for the proposition that the interest-free $50,000 loan was discharged in bankruptcy and any attempt to revive or recreate the debt in family court would violate the Supremacy Clause and frustrate the "fresh start" objectives of the bankruptcy clause. See id. at 292-93. She sees the family court's order modifying the property division to require James to provide her with a $50,000 QDRO, rather than a $100,000 QDRO, as a blatant attempt to recreate the $50,000 debt discharged by the bankruptcy court.

¶ 9. The facts in Spankowski are straightforward. Susan and David Spankowski were divorced based on a stipulated MSA that provided David was to pay Susan one-half of his pension, the couple's only significant asset. See id. at 288. Several years after the divorce, David filed for bankruptcy and listed Susan as a creditor for the portion of his pension that he owed her. See id. David was granted a full discharge, including his debt to Susan. See id. Susan filed a postjudgment motion requesting the family court to modify the judgment. See id. at 289. The court granted her motion by modifying the judgment to give effect to the parties' intent that there was to be an equitable division of the property. See id. The family court reasoned "that justice required that the property division be changed because 'the bankruptcy resulted in total perversion of the intent of the parties and gave a "windfall" to [David]. Further, the result after bankruptcy is totally inequitable.'" Id.

¶ 10. We reversed the family court. We balanced the state's interest in equitable property divisions with the objectives of the federal statutes. See id. at 293. Consequently, we held that under the Supremacy Clause the purpose of the bankruptcy code, to provide a "fresh start" to debtors, trumps the state's interest in equitable divorce settlements. See id. at 292-93. We concluded that the family court erred in reopening the entire property division to adjust for the windfall David received in the form of the discharge of his obligation to pay Susan one-half of his pension. See id.

¶ 11. Spankowski does not provide support for Pamela's argument. Spankowski does prohibit a family court from recreating a debt discharged in bankruptcy by modifying a final property division to consider the discharge. However, that is not what the family court did here. First, rather than attempting to avoid the bankruptcy, the court dealt directly with the bankruptcy when it held that Pamela's discharge from responsibility for the loan operated to discharge James's responsibility for the QDRO. Second, in ordering James to provide a $50,000 QDRO, the court was not recreating the loan by reducing the QDRO; it was fashioning a remedy that would not leave Pamela without anything while giving James a windfall.

¶ 12. The family court recognized that it could not revive the loan Pamela had discharged in bankruptcy. It recognized that the loan was not part of the property division. The court also recognized that Pamela's repayment of the loan was a precondition to James providing the QDRO, and because Famela had not repaid the loan, a strict application of the MSA would excuse James from providing the QDRO.

¶ 13. We agree with the family court that it could not recreate the loan discharged in bankruptcy. See id., 172 Wis. 2d at 298. We also agree with the family court that a strict application of the MSA would relieve James of his obligation to provide a QDRO. The loan was not part of the property division in the MSA. The loan James made to Pamela was in anticipation of the MSA and was not considered in the portion of the MSA that distributed marital assets. Pamela fails to confront the language of Paragraph 4B of the MSA establishing a quid pro quo bargain. The MSA requires reciprocal actions by the parties — James was to provide a QDRO but only when Pamela repaid the loan. Because the loan was discharged in bankruptcy, Pamela was under no obligation to repay the loan; consequently, James was under no obligation to provide the QDRO.

¶ 14. After holding that Pamela's discharge of the loan relieved James of his obligation to provide a QDRO, the family court invoked its equity powers to effectuate the final objectives of the agreed-upon property division. See Washington, 2000 WI 47 at ¶ 16. It concluded that if James did not provide a QDRO to Pamela, the property division would be disjointed; the parties' intent on the distribution of marital assets would be frustrated. In an attempt to do equity between the parties and to give meaning to the MSA, the family court ordered that James provide a $50,000 QDRO.

¶ 15. We conclude that the family court appropriately exercised its equitable powers to fashion a remedy to implement the intent of the parties. As a court of equity, the family court is able "to make a flexible and tailored response to the needs of a particular" couple. Lutzke v. Lutzke, 122 Wis. 2d 24, 36, 361 N.W.2d 640 (1985). The court has not reopened the divorce judgment; it has done nothing more than construe the judgment to clarify the parties' intention that Pamela was entitled to a portion of James's 401k plan. See Washington, 2000 WI 47 at ¶ 20 (problems may arise after the distribution of property that require the family court to interpret the divorce judgment in order to accomplish the goals of the judgment).

¶ 16. The family court did not ignore Spankowski and reinstitute James's loan that Pamela discharged in bankruptcy. The court gave full force and credit to the bankruptcy discharge. And to insure that Pámela did get her equitable share of the marital estate as contemplated by the MSA, the court clarified James's obligation to provide a QDRO to Pamela.

¶ 17. During the hearing on James's motion to clarify the final judgment, Pamela sought interest on the QDRO because James had not provided the QDRO in more than three years since being ordered to do so. Pamela asserts that the family court failed to exercise its discretion in denying her request.

¶ 18. Pamela did not raise her request for interest in her motion for reconsideration. Thus, we are faced with a situation where Pamela failed to bring the error alleged on appeal to the attention of the family court. She never gave the court an opportunity to address the claimed error and to correct it if necessary. This procedure frustrates one of the fundamental principles underlying the waiver rule. See Air Wis., Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 311, 296 N.W.2d 749 (1980). Although waiver is a rule of judicial administration that does not absolutely prohibit us from reviewing an issue, the general rule is that matters not brought to the attention of the trial court will not be reviewed on appeal. See Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). On balance, we choose not to invoke waiver against Pamela because there is no question that the court did not misuse its discretion.

¶ 19. In response to Pamela's request for interest, the court explained that because she had not cooperated in 1997 when James offered to provide the QDRO required by the MSA, she was not entitled to interest. While interest may be required where there has been á delay in fulfilling obligations in a property division, see Corliss v. Corliss, 107 Wis. 2d 338, 346, 320 N.W.2d 219 (Ct. App. 1982), a family court can deny interest if it offers a reasonable explanation. See id. at 347. The explanation of the court is reasonable; Pamela cannot expect to profit from her refusal to complete the transactions required in the final property division.

By the Court. — Order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.