author: CANE, C.J.

text:
    Patricia Lemke-Wojnicki, Plaintiff-Appellant, Midwest Security Insurance Company, Wisconsin Physicians Service Insurance Corporation, and WEA Insurance Corporation, Involuntary-Plaintiffs, v. Paul & Cindy Kolodziaj, d/b/a Dubay Sport & Marine and Transportation Insurance Company, Defendants-Third-Party Plaintiffs-Respondents, v. Henry G. Wojnicki, Jr., Third-Party Defendant.
    Court of Appeals

      No. 02-1136.

      Submitted on briefs October 21, 2002.

    Decided November 12, 2002.

    2002 WI App 316
    (Also reported in 655 N.W.2d 212.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gregory J. Strasser of Strasser & Yde, S.C. of Wausau.
    On behalf of the defendants-third-party plaintiffs-respondents, the cause was submitted on the brief of David J. Farley of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 1-17-03.

   CANE, C.J.

¶ 1. Patricia Lemke-Wojnicki appeals a summary judgment in favor of Paul and Cindy Kolodziaj, d/b/a DuBay Sport and Marine (DuBay). The trial court granted DuBay's summary judgment motion after determining DuBay did not breach its duty of care to Lemke after DuBay reattached a faulty steering mechanism to a new engine it installed on her husband Henry Wojnicki's boat. Specifically, the court determined DuBay was not negligent because it told Wojnicki of the faulty steering mechanism and Wojnicki said he would repair it himself. On appeal, Lemke argues DuBay did have a duty to her and its warning to her husband was inadequate to excuse its negligence. We determine DuBay did not breach any duty to Lemke under the facts presented and therefore affirm the summary judgment.

BACKGROUND

¶ 2. In spring 1996, Wojnicki bought a thirty-two-year-old boat. That autumn the boat's motor broke while in use. He initially took the boat to Ford Fremont Marine, who advised the motor was beyond repair. In April 1997, Wojnicki purchased a new motor from DuBay and had DuBay install the motor. While DuBay's mechanic was installing the motor, he discovered the boat's steering cable was worn. The mechanic attached the worn cable to the new engine.

¶ 3. Ron Walters, DuBay's salesman, told Wojnicki not to operate the boat because it was dangerous to operate with the defective steering cable. Walters told Wojnicki that DuBay could repair the steering cable for an additional $500. Wojnicki declined, believing Walters was trying to sell him something he did not need, and said he would take care of it himself. Walters added the following to Wojnicki's invoice: "I told customer about steering cable that is on the boat. It is not safe to run the boat with it. He said he would purchase a new system himself and install it."

¶ 4. Wojnicki next used his boat on June 22,1997. He, Lemke, and a friend went boating on the Wisconsin River near Stevens Point. The steering cable broke shortly after Wojnicki put the boat in the water. The boat went into a hard turn, throwing Lemke from the boat. The motor's propeller hit her, injuring her arm and shoulder.

¶ 5. Lemke brought suit against DuBay alleging it was negligent in allowing Wojnicki to take possession of the boat with this defect. Lemke argued DuBay could have refused to install the motor when Wojnicki declined to authorize the steering cable's repair, not attached the cable to the new motor, or performed the repair and either billed Wojnicki or paid for the repair itself. DuBay joined Wojnicki as a third-party defendant and moved for summary judgment arguing it was not negligent because it had no duty to repair the steering cable without authorization, it warned Wojnicki of the defect, told him it was unsafe to operate the boat with the defect and did not perform any work on the cable. The trial court granted DuBay's motion and Lemke appeals.

DISCUSSION

¶ 6. We review a decision granting summary judgment de novo, applying the same methodology as the trial court. Brownelli v. McCaughtry, 182 Wis. 2d 367, 372, 514 N.W.2d 48 (Ct. App. 1994). Summary judgment is appropriate if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. See id. at 372-73. The existence of a duty presents an issue of law. Lisa's Style Shop v. Hagen Ins. Agency, 181 Wis. 2d 565, 572, 511 N.W.2d 849 (1994).

¶ 7. Wisconsin cases define common law negligence as being comprised of the following four elements: (1) a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 259-60, 580 N.W.2d 233 (1998). The question of the defendant's duty of care is analyzed under substantive law as well as within a public policy framework. See Alvarado v. Sersch, 2002 WI App 227, ¶ 25, 652 N.W.2d 109. In Alvarado, we clarified the approach courts should take in determining a defendant's duty of care. Id. Traditionally, courts approached the question of duty in terms of foreseeability. Id. at ¶ 15. In Alvarado, we determined, based on our supreme court's recent pronouncements, that the defendant's duty of care is best resolved in the context of a public policy analysis. Id. at ¶ 14.

¶ 8. The factors we consider in a policy analysis are the same used to excuse defendants from liability despite their negligence. Id. at ¶ 19. These factors include whether: (1) the injury is too remote from the negligence; (2) the injury is wholly out of proportion to the tortfeasor's culpability; (3) in retrospect, it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; and (6) allowing recovery would enter a field that has no sensible or just stopping point. Id. at ¶ 26. The first and third public policy considerations reflect the traditional foreseeability analysis. Id. at ¶ 20. Foreseeability is part of the equation used to determine a defendant's duty, along with the other public policy considerations and substantive arguments. Id. at ¶¶ 20, 25.

¶ 9. Lemke argues DuBay should have anticipated some harm coming about as a result of reattaching the steering cable and therefore owed a duty to her. If reattaching the cable would have been the extent of DuBay's action, or if DuBay would have told Wojnicki the boat was safe to operate, we would agree with Lemke. DuBay, however, warned Wojnicki about the defect and offered to repair it. Wojnicki refused and told DuBay he would fix it himself. This undisputed fact, analyzed within the public policy analysis, leads us to conclude DuBay did not owe Lemke the duty she claims.

¶ 10. Our primary reason for concluding this duty did not exist is the unreasonable burden it would place on DuBay. If we reverse the summary judgment, we would be determining DuBay could be liable for injuries resulting from the steering cable's defects despite (1) unambiguously informing Wojnicki of the defect and its seriousness, (2) offering to repair the defect, and (3) Wojnicki's representation that he would take care of the problem himself. This holding would greatly expand a mechanic's traditional duties. A mechanic has a duty to perform the authorized repairs with care, skill, reasonable expedience and faithfulness. See Colton v. Foulkes, 259 Wis. 142, 146, 47 N.W.2d 901 (1951). Further, a mechanic has the duty to exercise ordinary care and skill in detecting problems and making repairs. See Annotation, Liability of garageman to one ordering repair of motor vehicle, for defective work, 92 A.L.R.2d 1408, 1413-14 (1963). However, the mechanic may not make repairs beyond those ordered by the customer. See id. Implied in these duties is the duty to adequately apprise the customer of discerned problems so that he or she may make an informed decision about use and repairs. DuBay satisfied this duty to Wojnicki by alerting him to the problem. This, along with Wojnicki's assurance he would fix the cable himself, fulfilled any duty DuBay had to anyone else who could be injured by the defect. Allowing DuBay to be held liable for injuries resulting from something it was not authorized to repair and had warned the customer about would create an unreasonable burden.

¶ 11. We also determine imposing liability on DuBay would open the door to much greater liability for mechanics, entering a field with no just stopping point. Mechanics could become liable for failing to make repairs even though their customers insisted the repairs not be performed. It is perhaps common for a mechanic's customers not to have all the recommended repairs made to whatever product he or she is having fixed. Imposing liability for injuries suffered as a result of these unfixed problems would create a burden on mechanics to make the repairs, regardless of the customer's authorization. Mechanics would most likely be barred from performing or charging for these repairs. See Wis. Admin. Code § ATCP 132.02 (motor vehicle mechanics may not make unauthorized repairs), § ATCP 132.09(4)(e) (motor vehicle mechanics may not demand or receive payment for unauthorized repairs). By the same token, this increased liability might encourage mechanics to limit their inspections to avoid detecting repairs. Imposing liability in this situation would place mechanics in a no-win situation and it would be unjust to hold mechanics liable for injuries resulting from defects they were not allowed to repair.

¶ 12. Finally, we conclude DuBay should not be exposed to liability because in retrospect it seems extraordinary DuBay's actions would have resulted in Lemke's injuries. While we do not doubt DuBay knew an injury could easily occur as a result of the defective cable, the subsequent warning to Wojnicki and his assurance of repair made it seem unlikely to DuBay that an injury would occur. After speaking with Wojnicki, it would be unfair to expect DuBay to foresee some injury resulting from allowing him to take the boat home with a defective steering cable.

¶ 13. The rationale in Jewell v. Dell, 284 S.W.2d 92 (Ky. Ct. App. 1955), supports our conclusion. There, Hubbard, a truck driver, stopped at Stitch's garage to have his brakes inspected after he noticed they were not functioning properly. Id. at 94. After inspecting the truck, Stitch informed Hubbard there were several problems with the brakes. Id. Although he performed some minor work on the brakes, Stitch said the truck would have to "have a major job done" in order to make the brakes fully functional. Id. Hubbard informed Stitch, "I will make it O.K.," continued driving, and was in an accident four miles from the garage. Id. The Kentucky Court of Appeals upheld the trial court's directed verdict finding Stitch not liable. Id. at 96. It reasoned that an action for negligence against a mechanic rests in part on his or her assurance, express or implied, that the machine repaired was safe for operation when in fact it was not. Id. The court noted the opposite was true in this case; the mechanic had made no such assurance to Hubbard and could not be held liable for the accident. Id. Similarly, DuBay never made any express or implied statement the boat was safe to operate. To the contrary, it told Wojnicki not to operate the boat because the steering cable was defective. Under these facts, DuBay cannot be held liable.

¶ 14. Lemke also challenges the sufficiency of the warning given, arguing DuBay should have informed Wojnicki what could happen if the steering failed. However, we conclude the undisputed evidence submitted in support of summary judgment shows that DuBay gave Wojnicki an adequate warning. The invoice stated the boat was not safe to operate. At his deposition, Walters testified he told Wojnicki not to operate his boat, that it was dangerous, and that he could lose his steering. Wojnicki admitted at his deposition that Walters said not repairing the cable would be "potentially dangerous." Because we are reviewing a summary judgment motion, we consider this deposition testimony undisputed. See Spring Green Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). In Jewell, Hubbard also argued Stitch's warning was inadequate, contending Stitch had to say the brakes were completely broken in order to avoid liability. See Jewell, 284 S.W.2d at 96. The court rejected this argument, saying the truck driver admitted he knew the brakes were not in perfect shape and further repairs were necessary. Id. While DuBay did not tell Wojnicki exactly what could happen as a result of the defective cable, by Wojnicki's own admission it did warn the defect was "potentially dangerous." This warning was sufficient to advise Wojnicki of the danger of operating his boat with the defective cable. It satisfied DuBay's duty to warn Wojnicki of the danger and fulfilled any duty DuBay had to any person who could be injured by the defect.

¶ 15. Nor are we persuaded by Lemke's argument the warning must be the equivalent of a valid liability release in order for DuBay to avoid liability. She points to Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 557 N.W.2d 60 (1996), where the supreme court invalidated a liability release because it did not "clearly, unambiguously, and unmistakenly" express the intention to waive liability. Id. at 88. Lemke argues DuBay's warning must meet this standard. We disagree. The issue before us is the existence and scope of DuBay's duty to Lemke. We have concluded DuBay did not owe Lemke the duty she claims. Therefore, whether there was a waiver of that liability for a breach of that duty, either by Wojnicki or Lemke, is irrelevant.

¶ 16. The duty of any defendant is often described as the duty to act with reasonable care under the circumstances. McNeese v. Pier, 174 Wis. 2d 624, 631, 497 N.W.2d 124 (1993). We conclude DuBay did that by clearly informing Wojnicki of his boat's defective steering cable. To hold DuBay liable for injuries resulting from that defect after Wojnicki said he would repair it himself would violate the public policy principles that serve as our negligence law's foundation.

By the Court. — Judgment affirmed.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    Erik Jensen, a minor, by his Guardian ad Litem, Charles E Stierman and the State of Wisconsin, Department of Health and Family Services, Plaintiffs-Respondents, v. David D. McPherson, M.D., OHIO Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants.
    Court of Appeals

      No. 01-2912.

      Submitted on briefs September 12, 2002.

    Decided November 13, 2002.

    2002 WI App 298
    (Also reported in 655 N.W.2d 487.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Curtis C. Swanson and David A. Westrup of von Briesen & Roper, S.C., Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Charles F Stierman of Stierman, Steffens & Kuphall, S.C., Waukesha, and Jay A. Urban of Urban Taylor & Stawski Ltd., Milwaukee.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. This case comes to us by a grant of a leave to appeal. David D. McPherson, M.D., OHIO Insurance Company and Wisconsin Patients Compensation Fund (collectively "McPherson") appeal a circuit court order denying a motion to dismiss the 2001 medical malpractice claim of Erik Jensen, a minor, by his guardian ad litem, Charles F. Stierman and the State of Wisconsin Department of Health and Family Services (collectively "Erik"). McPherson also appeals the circuit court order granting Erik's motion for consolidation of a 1997 action and the 2001 action. McPherson argues that under Wis. Stat. § 802.06(2)(a)10 (1999-2000) Erik's 2001 action should have been dismissed on the grounds that the 1997 action was pending in Walworth county (No. 97-CV-00704) between the same parties for the same cause. We disagree. Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01(3)(a), until after the 1997 action was declared a mistrial. We affirm the circuit court's decision to deny McPherson's motion to dismiss; we affirm the circuit court's granting of Erik's motion to consolidate the 1997 and 2001 actions and uphold the circuit court's discretionary decision to set a new scheduling order.

¶ 2. In 1997, a complaint was filed against McPherson and other defendants asserting claims of medical malpractice and failure to obtain informed consent in connection with the delivery of Erik. The caption to the final amended complaint identifies the plaintiffs as follows:

KATHLEEN JENSEN and BRADLEY JENSEN individually and as mother and father and next friend of ERIK JENSEN a minor, and the State Of Wisconsin, Department of Health and Family Services

¶ 3. Illinois Attorney Lee Phillip Forman, who had obtained pro hac vice status, represented the plaintiffs in the 1997 action. Immediately prior to trial, one of the defendants settled. Trial commenced on October 4,1999. At the outset of trial, Forman informed the court that a settlement had been reached between his clients and defense attorney Corneille's client. At this time Corneille stated:

There is no guardian ad litem for, ah, Erik Jensen at this point in time. There will be an appointment of a guardian for Erik Jensen.

Forman confirmed that Erik did not have a guardian ad litem:

Unfortunately, again, I wish — I will have a motion on behalf of Mr. Blackbourn to be appointed as the guardian ad litem for the child. We will do that formally. We have some time — space is now created by the dismissal [of the defendant who settled],

¶ 4. Three days into the proceedings, due to incidents unrelated to this appeal, the circuit court declared a mistrial citing "misconduct by plaintiffs' counsel [Attorney Forman]." Five days after declaring a mistrial, the circuit court revoked Forman's pro hac vice status. Jensen v. Wis. Patients Comp. Fund, 2001 WI 9, ¶ 22, 241 Wis. 2d 142, 621 N.W.2d 902. The plaintiffs then decided to seek replacement counsel.

¶ 5. On February 14, 2001, Attorney Jay A. Urban was substituted as counsel for the plaintiffs. Thereafter, apparently due to concerns regarding whether Erik's interests were compromised in the above-mentioned pretrial settlement, Urban petitioned the court and was appointed temporary guardian ad litem for Erik. Urban proceeded to find and contact an experienced medical malpractice lawyer, Attorney Charles Stierman, and asked him to review the settlement and to determine whether it was in the best interests of Erik. Urban also asked Stierman to agree to become Erik's guardian ad litem. Stierman agreed. Consequently, on May 3, 2001, the court appointed Stierman as Erik's guardian ad litem.

¶ 6. In May 2001, Stierman initiated a medical malpractice action on behalf of Erik (Jensen v. McPherson, No. 01-CV-00411). In July 2001, McPherson filed a motion to dismiss the action on grounds that another action was pending in Walworth county (No. 97-CV-00704) between the same parties for the same cause pursuant to Wis. Stat. § 802.06(2)(a)10. In August 2001, Stierman filed a motion to consolidate the 1997 action with the 2001 action. On October 16, 2001, the circuit court denied McPherson's motion to dismiss Erik's 2001 action and granted Erik's motion to consolidate the 2001 action with the 1997 action. The court then determined that a new scheduling order would be set in due course. McPherson appeals.

[F]or reasons of judicial policy, attorneys admitted pro hac vice must be provided some form of notice and an opportunity to respond before pro hac vice status may be withdrawn under SCR Rule 10.03(4). The form of the notice and opportunity to respond is left to the sound discretion of the circuit court, provided, however, that the attorney is notified of the conduct which is alleged to violate SCR 10.03(4) and the specific reason this conduct may justify revocation under the rule.

¶ 7. There are four issues in this leave to appeal: (1) should Erik be considered a party-plaintiff of the 1997 action; (2) was it necessary for Erik — if a party — to be represented by a guardian and was Erik in fact represented by a guardian; (3) did the circuit court err in reopening the scheduling order for the guardian ad litem after the mistrial was declared; and (4) should the order be reversed for public policy reasons.

¶ 8. This case involves the interpretation of a statute, a question of law which we review de novo. See Agnes T v. Milwaukee County, 189 Wis. 2d 520, 525, 525 N.W.2d 268 (1995). In interpreting a statute, we must seek to effectuate the intent of the legislature. State v. Olson, 175 Wis. 2d 628, 633, 498 N.W.2d 661 (1993). If the language of the statute is unambiguous, however, "we will not look beyond the language of the statute in applying it." State v. Swatek, 178 Wis. 2d 1, 5, 502 N.W.2d 909 (Ct. App. 1993).

¶ 9. Additionally, we are charged with reviewing a decision of the circuit court to send out a new scheduling order. The decision of whether a scheduling order will be modified is within the circuit court's discretion, and its decision will only be reversed for an erroneous exercise of discretion. Alexander v. Riegert, 141 Wis. 2d 294, 298, 414 N.W.2d 636 (1987).

¶ 10. We begin by identifying two basic principles, which we bear in mind as we proceed with our analysis. First, it is well settled that there are two separate causes of action when a minor is injured — the minor's and the minor's parents. Korth v. Am. Family Ins. Co., 115 Wis. 2d 326, 330, 340 N.W.2d 494 (1983). The minor's cause of action for physical injury and the parents' causes of action for the invasion of the parents' interests are separate in the sense that each is predicated upon the invasion of different interests of different persons. Id. at 331.

¶ 11. The second basic principle we underscore is that a minor's cause of action is a property right protected by the Due Process Clause of the Fourteenth Amendment. See Brandt v. Brandt, 161 Wis. 2d 784, 789, 468 N.W.2d 769 (Ct. App. 1991). Before a minor's property right is destroyed or adversely affected, he or she is entitled to notice and an opportunity to be heard. Id. In addition, Wis, Stat. § 803.01(3)(a) reflects the general policy that "minors are the special objects of the solicitude of the courts and of government generally." Brandt, 161 Wis. 2d at 788 (citation omitted). The minor "is always the ward of every court wherein his [or her] rights or property are brought in jeopardy, and is entitled to most jealous care that no injustice be done him [or her]." Id. at 788-89 (citation omitted). Due process is satisfied only if notice is given to the person who has the duty of "jealous care" of the minor's rights. See id. at 789. Moreover, § 803.01(3)(c)2 emphasizes the legislative intent that minors are to be considered the special objects of the solicitude of the courts even after entry of judgment or final order. That statute states in pertinent part:

2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or mentally incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:
a. The minor or mentally incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
b. The personal representative of such minor or mentally incompetent at any time prior to the expiration of one year after the death of the minor or mentally incompetent.

Id. That is, in a case where the court finds after the entry of judgment or final order that a minor was not properly represented in the action or proceeding, the judgment or order shall be vacated on motion of the minor or the personal representative of the minor.

¶ 12. McPherson makes three main arguments: (1) that Erik was a represented and participating party-plaintiff throughout the 1997 action and that "prior to the appointment of the guardian ad litem, Erik was represented by his general guardians (his parents) and the attorney who filed the 1997 action"; (2) that it was not necessary to have a guardian ad litem appointed to represent Erik during all stages of the litigation of the 1997 action in order for Erik to be deemed a party to the 1997 action; and (3) that the denial of the motion to dismiss Erik's 2001 action and the grant of Erik's motion to consolidate the 2001 action with the 1997 action should be reversed for the public policy reasons of preventing Erik and all minor parties from being allowed to circumvent the rulings of the circuit court by simply refiling their action through a guardian ad litem.

¶ 13. Erik responds by arguing that (1) based on the pleadings, he was not properly named or pled as a plaintiff to the 1997 action; (2) the 1997 action failed to comply with Wis. Stat. § 803.01(3) because all of the decisions and orders in that action "were made without a guardian ad litem or general guardian and thus without Erik's interests being represented as is [mandatory under the statute]"; and (3) that the finding that Erik was not a party to the 1997 action does not offend public policy.

¶ 14. First, we conclude that Erik was not properly named as a plaintiff in the complaint filed by his parents. The caption to the complaint identifies the plaintiffs as follows:

KATHLEEN JENSEN and BRADLEY JENSEN individually and as mother and father and next friend of ERIK JENSEN a minor, and the State Of Wisconsin Department of Health and Family Services (Emphasis added.)

It is not enough to list a person in the caption. Nowhere in the caption is Erik himself named as a plaintiff; rather, Erik's name appears only to explain why his parents were entitled to bring this suit.

¶ 15. Furthermore, the allegations in the complaint itself reinforce our conclusion. The first numbered paragraph describes the "plaintiffs" in these terms:

1. That the Plaintiffs, Kathleen Jensen and Bradley Jensen are adult residents of the State of Wisconsin, who reside at 930 Ann Street, Genoa City WI53128 and that Erik Jensen is their minor son born 5/18/96.

There is no separate paragraph that describes Erik or his interests in the 1997 litigation. Additionally, the complaint refers to Erik in perplexingly different ways. Occasionally he is referred to as "the fetus, now known as Eri[k] Jensen, a minor." Later he is referred to as "the infant," "such infant," "said child," "such child" and "said minor." Finally, the complaint contains scattered references to Erik as "said minor Plaintiff," even though he was never named as such in the caption or in the general allegations identifying the parties. Even with notice pleading, the complaint itself must properly identify the party as a plaintiff, must identify the party's claims and must identify the party's specific request for relief. Upon our review of the 1997 Summons and Complaint, Erik was never a party-plaintiff in the action; thus, the 2001 action — where Erik was properly pled as a party — is not duplicative.

¶ 16. Second, assuming Erik was a party — and we hold that he was not — we conclude that Wis. Stat. § 803.01(3)(a) requires that a minor who is a party must appear by a guardian of the minor's property or guardian ad litem. Both sides acknowledge the import of § 803.01. It is, in fact, the controlling statute for the determination of whether Erik — assuming arguendo that he was a party in the 1997 action — appeared with proper representation. Section 803.01(3)(a) provides in relevant part:

If a party to an action or proceeding is a minor, or if the court has reason to believe that a party is mentally incompetent to have charge of the party's affairs, the party shall appear by an attorney, by the general guardian of the party's property who may appear by attorney or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of property, or where the general guardian fails to appear and act on behalf of the ward or incompetent, or where the interest of the minor or incompetent is adverse to that of the general guardian. Except as provided in s. 807.10, if the general guardian does appear and act and the interests of the general guardian are not adverse to the minor or incompetent, a guardian ad litem shall not be appointed. Except as provided in s. 879.23(4), where the interests of the minor or mentally incompetent person are represented by an attorney of record the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem. (Emphasis added.)

¶ 17. In short, Wis. Stat. § 803.01(3)(a) requires that, in all cases, a minor who is a party to an action must have a "guardian" — be it a "general guardian" of the property or "guardian ad litem." We note that in both situations the court can carefully control the representations of the minor. The mandate that a minor must have either a guardian ad litem or a general guardian of the property is clear because the statute states: "A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of property . . . ." Id.

¶ 18. This established, it is undisputed that Erik did not have the services of a guardian ad litem until 2001, at which time Urban was temporarily appointed until the May 2001 appointment of Stierman. Thus, the only remaining question is whether Erik had a "general guardian of the party's property" as contemplated by Wis. Stat. § 803.01(3)(a).

¶ 19. We must determine what our legislature meant by "guardian" under this statute and then apply that to the case at bar. This term is not defined in the chapter. When a term is not defined in the chapter, we may look for guidance in other chapters. See Town of Lafayette v. City of Chippewa Falls, 70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975). "The guardian is the creature of the state." See State Dep't of Public Welfare v. DeBaker, 3 Wis. 2d 133, 142, 88 N.W.2d 22 (1958). In Wisconsin, guardians are extensively regulated by Wis. Stat. ch. 880. As such, we consider it an accurate expression of our state legislature's intent to examine the guardianship provisions of ch. 880 in order to understand the requirements of Wis. Stat. § 803.01. In Wis. Stat. § 880.01(3) a "guardian" is defined as "one appointed by a court to have care, custody and control of the person of a minor or an incompetent or the management of the estate of a minor, an incompetent or a spendthrift." (Emphasis added.)

¶ 20. This definition makes clear that a "guardian" must be "appointed by a court" whether general guardian of the property or guardian ad litem. Wis. Stat. § 880.01(3). Thus, this definition also demonstrates that our legislature did not intend "general guardian" of the property to be equated with a minor's "natural guardian" who needs no court appointment. Additionally, Wis. Stat. § 803.01(3)(a) is silent as to appearance by a natural guardian or biological parent and we think that silence speaks volumes.

¶ 21. Nonetheless, McPherson argues, without support, that Erik's parents were Erik's "general guardians." By implication, McPherson equates "general" with "natural." However, our analysis demonstrates that in order to be Erik's general guardians, Erik's parents need to be appointed by the court. Nothing in the record indicates that Erik's parents were ever appointed as general guardians of his property. Moreover, Wis. Stat. ch. 880 does not equate "parents" with "guardians." In fact, when addressing the selection of guardians, the legislature provided a preference for the minor's parents — thus indicating that parents are not automatically deemed "general guardians." Furthermore, the legislature reiterated the necessity that a guardian be court appointed. Specifically, Wis. Stat. § 880.09 provides:

Nomination; selection of guardians.
(2) PREFERENCE. If one or both of the parents of a minor.. . are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects ....

Finally, it cannot be assumed that the attorney who represents the parents also represents the minor— unless this attorney has also been court appointed as the minor's guardian ad litem or guardian of the minor's property.

¶ 22. In addition, we do not believe the circuit court erred in reopening the scheduling order for the guardian ad litem after the mistrial was declared. The circuit court aptly supported its reasoning on the record:

I think the best thing to.do under these circumstances, difficult as it is for all parties and as financially expensive as it is — the child was denied representation, the child should be in this case — I'm not going to dismiss the newer case, but I'm going to consolidate it, because there should be only one file. I am going to send out a new scheduling order, and I'm going to do that.
I have to do it reluctantly, but it is the only way to make sure that that child gets fairly treated, otherwise, this child is without any rights in this particular case and is being treated°unfairly by the courts ....

¶ 23. Furthermore, Wis. Stat. § 803.01(3)(c)2 supports the circuit court's decision:

If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or mentally incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:
a. The minor or mentally incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
b. The personal representative of such minor or mentally incompetent at any time prior to the expiration of one year after the death of the minor or mentally incompetent.

¶ 24. Lastly, we are not moved by McPherson's public policy argument. We agree with Erik that Judge Kennedy's careful reasoning supports this holding as sound.

The problem the court has is — and I don't think I'd fault anybody on it the way this case went, except perhaps, and I say this with caution, a certain prior attorney who was on the plaintiffs side. He never did get a guardian ad litem appointed for the child or participating.
Of course the defense counsels never noted that either, and the question is did they have to. And my opinion is, yeah. I don't blame them for doing what they did, but they really didn't — they did sort of have to, because that child was a necessary party, and the child really wasn't participating.
If Judge Gibbs had known that there was a party out there who was a necessary party who was not being allowed to participate, in effect something had been done wrong, there is no way he could have entered his initial ruling that limited what was supposed to happen in the older file.
I know what Judge Gibbs didn't know, and that is that we didn't have the child having a guardian ad litem participating effectively in his own right.

¶ 25. In conclusion, we affirm the circuit court's decision to deny McPherson's motion to dismiss; we affirm the circuit court's granting of Erik's motion to consolidate the 1997 and 2001 actions and. uphold the circuit court's discretionary decision to set a new scheduling order. Erik was not a party in the 1997 action and even if he were, he was not properly represented as is mandated under Wis. Stat. § 803.01(3)(a). We believe that the legislature has wisely directed that a guardian ad litem be appointed for a minor who does not have a general guardian of the property. This is a desirable way of assuring that in every case the minor's rights will be fully protected. This is true even though there is an attorney who has been chosen by the parents to assist in the processing of the child's claim. While in the great bulk of cases the minor's interests and the parents' interests fully coincide, there will be some cases where the minor's rights can better be protected by an officer whose interests do not extend beyond the minor and the court. See Andresen, By Guardian Ad Litem v. Mut. Serv. Cas. Ins. Co., 17 Wis. 2d 380, 383, 117 N.W.2d 360 (1962).

By the Court. — Order affirmed.

       We note that the final amended complaint of the 1997 action was filed in 1998.

       Wisconsin Stat. § 802.06(2)(a)10 (1999-2000) provides:
      Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader he made by motion:
      10. Another action pending between the same parties for the . same cause.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We choose not to name the defendants who are not a part of this appeal.

       Pro hac vice status is defined as: "For this occasion or particular purpose. • The phrase usu. refers to a lawyer who has not been admitted to practice in a particular jurisdiction but who is admitted there temporarily for the purpose of conducting a particular case." Black's Law DictionaRY 1227 (7th ed. 1999).

       Forman's revocation of his pro hac vice status was appealed and eventually overturned in Jensen v. Wisconsin Patients Compensation Fund, 2001 WI 9, ¶ 20, 241 Wis. 2d 142, 621 N.W.2d 902, where our supreme court held that:

       We note that McPherson, in his reply brief, contends that the 1997 action's "Pre-Trial List of Special Damages" listing Erik's damages proves that Erik was a party to the 1997 action. McPherson is wrong. A pretrial list is not a pleading or an amendment to a pleading; it does not make Erik a party bound by a judgment.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Dan A. Riegleman, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Dan A. Riegleman, Respondent.
    Supreme Court

      No. 02-0406-D.

      Decided February 25, 2003.

    2003 WI 3
    (Also reported in 657 N.W.2d 339.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Dan A. Riegleman and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 setting forth findings of fact and conclusions of law regarding Attorney Riegleman's professional misconduct in connection with his handling of a financial settlement obtained in connection with his representation of a client involved in a motor vehicle accident. The parties stipulated to a 60-day suspension of Attorney Riegleman's license to practice law.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that Attorney Riegleman's misconduct warrants the suspension of his license to practice law. We accept the parties' stipulation that a 60-day suspension is appropriate discipline for this offense.

¶ 3. Attorney Riegleman was admitted to practice in Wisconsin in 1985. He resides in Sussex, Wisconsin. In 1995 he received a private reprimand. He has no other disciplinary history.

¶ 4. According to the OLR complaint filed in this matter, as well as the terms of the stipulation, Attorney Riegleman agreed to represent Scott Tennessen, who had been injured in a motor vehicle accident arising out of his employment. Attorney Riegleman filed a Worker's Compensation claim against Tennessen's employer and the employer's insurer, Continental Western Insurance Corporation (Continental).

¶ 5. Attorney Riegleman also filed a third party action on Tennessen's behalf against the driver of the other vehicle and against the driver's insurer, Allstate, in Butler County, Missouri.

¶ 6. In April 1997 Continental paid a total of $26,659.64 in benefits related to Tennessen's claim. By letter dated February 26, 1998, Continental's counsel sent a letter to Riegleman, advising him that Continental retained a lien in the amount of $26,650.64 on any and all proceeds recovered in the Missouri personal injury action. Subsequently, Allstate agreed to settle the Missouri personal injury action for $12,000, plus court costs.

¶ 7. On November 10, 1998, Allstate sent Attorney Riegleman a check for $12,000, along with a release and stipulation for dismissal of the Missouri action. That same day Attorney Riegleman wrote to Continental's counsel, stating that a settlement had been reached in the personal injury action. He set forth proposed calculations for distribution of the $12,000 settlement. According to Attorney Riegleman's calculations, Continental was entitled to only $429.25. Attorney Riegleman did not, however, advise Continental that he was already in receipt of a settlement check from Allstate.

¶ 8. After Attorney Riegleman filed the statement of costs in the Missouri personal injury action, Allstate paid the costs and Tennessen dismissed the action. In total Allstate paid $12,922.50 to settle the Missouri action.

¶ 9. On January 15, 1999, Attorney Riegleman endorsed the name "Continental" on the Allstate settlement check, followed by his own initials. He then deposited the settlement check into his trust account. He did not have Continental's permission to endorse the check with Continental's name.

¶ 10. That same day Attorney Riegleman issued a check to his client in the amount of $5000.35. He also issued a check to his law firm in the amount of $4790.35, leaving a balance of $2209.30 from the Allstate settlement in the trust account. He issued these checks without first notifying Continental or securing its consent to accept the figures he had calculated.

¶ 11. In April 1999, after making no further effort to contact Continental, Attorney Riegleman issued a check for the remainder of the settlement proceeds to his client. As of that date he still had not advised Continental that he had received the settlement funds from Allstate or otherwise provided Continental with an accounting of the funds.

¶ 12. Eventually Continental learned of the settlement. The ensuing negotiations to resolve the dispute concerning the proper amount of Continental's lien claim took over nine months. In September 2000 Attorney Riegleman voluntarily agreed to pay, and did pay Continental $2500.

¶ 13. On February 14, 2002, the OLR filed a complaint against Attorney Riegleman. The complaint charged that by endorsing Continental's name on the settlement check from Allstate without Continental's consent, Attorney Riegleman engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c). In addition, by failing to promptly notify Continental, in writing, of funds in which Continental had an interest, Attorney Riegleman violated SCR 20:1.15(b). Finally, by failing to treat disputed property of which he was in possession and in which he and Continental both claimed interest, as trust property until there was an accounting and severance of the interests and the dispute was resolved, Attorney Riegleman violated SCR 20:1.15(d).

¶ 14. On or about August 26, 2002, the OLR and Attorney Riegleman executed a stipulation pursuant to SCR 22.12. In addition to stipulating to the facts as set forth above, the parties stipulated to discipline in the form of a 60-day suspension of Attorney Riegleman's license to practice law in Wisconsin, and agreed that Attorney Riegleman should pay the costs of the OLR proceeding.

¶ 15. On October 14, 2002, the referee issued a report and recommendation on this matter. The report and recommendation reflects the facts set forth herein and comments that endorsing a check payable to another is a serious violation of ethical requirements. The referee notes that this ethical violation was compounded by the failure to notify Continental of the handling of the settlement proceeds.

¶ 16. The referee acknowledged certain mitigating factors involved in this matter, including the fact that Attorney Riegleman eventually did reimburse Continental. In addition, the referee noted that there is no evidence that Attorney Riegleman personally benefited from his actions, or that his client was harmed by them. The referee agreed that a 60-day suspension is appro: priate discipline for Attorney Riegleman's misconduct.

¶ 17. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation. Attorney Riegleman's misconduct constitutes a serious breach of professional conduct and warrants suspension of his license to practice law. We accept the parties' conclusion that a 60-day suspension of his license is appropriate discipline for his professional misconduct and we direct Attorney Riegleman to pay the costs of the OLR proceeding. Therefore,

¶ 18. IT IS ORDERED that the license of Dan A. Riegleman to practice law in Wisconsin is suspended for a period of 60 days, commencing April 1, 2003.

¶ 19. IT IS FURTHER ORDERED that Attorney Dan A. Riegleman comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 20. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Dan A. Riegle-man shall pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $1305.09. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Dan A. Riegleman to practice law in Wisconsin shall be suspended until further order of the court.

¶ 21. JON E WILCOX, J., did not participate.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 20:1.15(b) provides that:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       SCR 20:1.15(d) provides that:
      (d) When, in the representation, a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be treated by the lawyer as trust property until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall continue to be treated as trust property until the dispute is resolved.


text:
    In the Matter of Disciplinary Proceedings Against William F. Mross, Attorney at Law: Office of Lawyer Regulation, Complainant, v. William F. Mross, Respondent.
    Supreme Court

      No. 02-3030-D.

      Decided February 25, 2003.

    2003 WI 4
    (Also reported in 657 N.W.2d 342.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney William E Mross and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12, which sets forth findings of fact and conclusions of law " regarding Attorney Mross's professional misconduct in connection with his unlawful sale of cigarettes to jail inmates. The parties stipulated to a 90-day suspension of Attorney Mross's license to practice law. We accept the parties' stipulation and recommendation that 90 days is appropriate discipline for this offense, subject to the understanding that Attorney Mross comply with the terms of the deferred prosecution agreement wherein he agreed to refrain from the practice of criminal law for a period of four years, and surrendered his certification with the State Public Defender's Office.

¶ 2. Attorney Mross was admitted to practice in 1975. He has no previous disciplinary history.

¶ 3. On December 5, 2001, Attorney Mross was visiting a client, who was an inmate at the Racine County Jail. Another inmate reported to a sheriff that Attorney Mross had passed cigarettes under the table to his client. Upon questioning Attorney Mross produced a bag containing several packs of cigarettes.

¶ 4. On December 22, 2001, the sheriffs department recovered cigarettes Attorney Mross had given to another inmate, whose sister had paid Attorney Mross $20 to deliver the cigarettes. Attorney Mross was aware that cigarettes were prohibited by Racine County Jail rules and knew that he was engaging in illegal conduct by delivering cigarettes to inmates.

¶ 5. On or about January 4, 2002, a complaint was filed in Racine County Circuit Court, charging Attorney Mross with two counts of delivering articles to an inmate in violation of Wis. Stat. § 302.095 (1999-2000). On April 18, 2002, Attorney Mross accepted a deferred prosecution agreement whereby the complaint was dismissed, without prejudice. In exchange Attorney Mross admitted to the allegations, entered a plea to interference with a Racine County ordinance, and agreed to a forfeiture of $500. Under the terms of the agreement Attorney Mross also agreed to refrain from the practice of criminal law for four years and relinquished his certification with the State Public Defender's Office.

¶ 6. On November 14, 2002, the OLR filed a complaint against Attorney Mross, which charged: "By delivering cigarettes to inmates at the Racine County jail in violation of § 302.095(2), Wis. Stats., Mross committed a criminal act that reflects adversely on his honesty, trustworthiness, and fitness as a lawyer in violation of SCR 20:8.4(b)."

¶ 7. In the course of the ensuing OLR investigation Attorney Mross further admitted that he had supplied cigarettes to approximately twenty to thirty inmates over a period of three to four years.

¶ 8. On or about December 5, 2002, the OLR and Attorney Mross executed a stipulation pursuant to SCR 22.12. In addition to stipulating to the facts as set forth above, the parties stipulated to discipline in the form of a 90-day suspension of Attorney Mross's license to practice law in Wisconsin.

¶ 9. In its memorandum in support of the stipulation the OLR comments that delivering cigarettes to inmates in violation of state law is a serious breach of professional conduct. Aggravating factors include the number of inmates and amount of time involved, the fact that Attorney Mross used his position as an attorney to gain access to the jail, and that he was motivated in part by desire for personal gain. As mitigating factors the OLR considered the lack of previous disciplinary history and the consequences Attorney Mross agreed to under the deferred prosecution agreement, wherein he relinquished his certification with the State Public Defender's Office and agreed not to practice criminal law for a period of four years.

¶ 10. The stipulation provides further that it is not the result of a plea bargain and reflects neither a reduction of the charges nor a reduction of the level of discipline originally sought by the OLR. The OLR is not seeking imposition of costs in this matter.

¶ 11. We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that Attorney Mross's misconduct warrants the suspension of his license to practice law. We accept the parties' stipulation that a 90-day suspension is appropriate discipline for this offense, subject to Attorney Mross's continued compliance with the terms of the deferred prosecution agreement, pursuant to which Attorney Mross will refrain from the practice of criminal law for a period of four years, and has surrendered his certification with the State Public Defender's Office. Therefore,

¶ 12. IT IS ORDERED that the license of Attorney William F. Mross to practice law in Wisconsin is suspended for a period of 90 days, commencing April 1, 2003.

¶ 13. IT IS FURTHER ORDERED that Attorney William F. Mross comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 14. JON E WILCOX, J., did not participate.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version.

       SCR 20:8.4(b) provides: "It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alan L. Radke, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 01-1879-CR.

      Oral argument January 15, 2002. —
    Decided February 26, 2003.

    2003 WI 7
    (Also reported in 657 N.W.2d 66.)

      For the defendant-appellant-petitioner there were briefs and oral argument by William E. Schmaal, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of a published decision of the court of appeals, State v. Radke, 2002 WI App 146, 256 Wis. 2d 448, 647 N.W.2d 873, affirming the judgment of conviction of the Circuit Court for Dane County, Steven D. Ebert, Judge.

¶ 2. Alan L. Radke, the defendant, was convicted of repeated acts of sexual assault of the same child, in violation of Wis. Stat. § 948.025(1) (1997-1998), and was also convicted of being a persistent repeater under Wis. Stat. § 939.62(2m)(a)lm., (b)2., and (c), commonly known as Wisconsin's "two strikes" law. He was sentenced to life imprisonment without the possibility of parole.

¶ 3. The defendant challenges the constitutionality of the "two strikes" law. The challenge focuses on a comparison of Wisconsin's "two strikes" law and Wisconsin's "three strikes" law in light of the statutory felony classification system. Under the statutory felony classification system, a Class A felony has a greater maximum penalty than a Class B felony. The "two strikes" law, however, mandates that the second conviction for a Class B felony "serious child sex of-, fense" be punished by life imprisonment without the possibility of parole, while the "three strikes" law mandates that the third conviction for a Class A homicide felony be punished by life imprisonment without the possibility of parole.

¶ 4. In short, the defendant argues that it is irrational and therefore unconstitutional for the legislature to authorize a more serious punishment for a single conviction of first-degree intentional homicide (a Class A felony) than for a single conviction of first-degree sexual assault of a child (a Class B felony) under the felony classification system while simultaneously punishing a second first-degree child sexual assault conviction more severely than a second first-degree intentional homicide conviction.

¶ 5. The precise question raised, therefore, is whether the "two strikes" law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.

¶ 6. The circuit court, on a pretrial motion, ruled that the "two strikes" law was a reasonable exercise of the legislature's power to determine appropriate criminal penalties and thus was constitutional. The court of appeals affirmed the conviction. It presumed that the legislature had an interest in protecting children from repeat sex offenders whom the legislature viewed as more likely to re-offend than other serious felons and concluded that the "two strikes" law is rationally related to that interest under either a due process or equal protection analysis.

¶ 7. We conclude, as did the court of appeals, that the defendant's constitutional challenge to the "two strikes" law fails. The legislature's interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A homicide offense.

¶ 8. The relevant facts of this case are few. In 1986, the defendant was convicted of first-degree sexual assault of a child, contrary to Wis. Stat. § 940.225(1) (d) (1983-1984), which proscribes sexual contact or sexual intercourse with a person 12 years of age or younger. The defendant was sentenced to five years' probation with nine months in jail as a condition of his probation. Violation of § 940.225(1)(d) was a Class B felony.

¶ 9. On March 16, 1999, the State charged the defendant with committing repeated acts of sexual assault of the same child, in violation of Wis. Stat. § 948.025(1), a Class B felony. As a result of his prior conviction for first-degree sexual assault of a child, the State also charged the defendant as a "persistent repeater" under Wis. Stat. § 939.62(2m). The defendant entered a not guilty plea and then filed a motion to dismiss the repeater charge, arguing that it violated his right to due process. The circuit court denied his motion.

¶ 10. The jury convicted the defendant as charged. The circuit court denied the defendant's motion for post-conviction relief, and as required by the "two strikes" law, the circuit court sentenced him to life in prison without the possibility of parole. The defendant's conviction was upheld by the court of appeals, and we granted review.

¶ 11. The constitutionality of a statute is a question of law that this court determines independently of the circuit court and court of appeals, yet with the benefit of the analyses of these courts. All statutes enjoy a presumption of constitutionality and the heavy burden of overcoming this presumption lies with the person attacking the statute. This court will sustain a statute against a constitutional challenge if there is "any reasonable basis" for the statute. That reasonable basis need not be expressly stated by the legislature; if the court can conceive of facts on which the legislation could reasonably be based, it must uphold the legislation as constitutional.

¶ 12. In this case, the defendant attacks the statute as unconstitutional under the Due Process Clause of the state and federal constitutions. In addition to the procedural protections provided by the Due Process Clause, there is also "a substantive component that bars certain arbitrary, wrongful government actions." Substantive due process forbids a government from exercising "power without any reasonable justification in the service of a legitimate governmental objective."

' ¶ 13. The defendant argues that the "two strikes" law is "illogical, irrational, and arbitrary as a method of executing the legislature's overall determination of penal policy" and therefore violates his constitutional right to due process of law. According to the defendant, a child sexual assault is a less serious crime than a homicide offense. The defendant points out that the Wisconsin legislature has indicated that Class A felony offenses Eire more serious crimes than Class B felony offenses by imposing a higher maximum penalty for Class A felony offenses than for Class B felony offenses. Moreover, felony classification system aside, the defendant asserts that non-homicide child sexual assaults are inherently less serious than homicide offenses. Consequently, the defendant argues, a second child sexual assault cannot rationally be punishable by a more severe penalty than a second homicide offense. Yet convicted persons are considered persistent repeaters and sentenced to mandatory terms of life imprisonment without the possibility of parole after two convictions for Class B child sexual assault but are not so sentenced after two convictions for Class A homicide.

¶ 14. The State responds that the "two strikes" law is a rational legislative attempt to protect children from sexual violence by incapacitating repeat offenders who are not likely to be rehabilitated. Moreover, according to the State, the fact that a second conviction for a Class B felony might result in a more severe sentence than a second conviction for a Class A felony is consistent with the overall felony classification system in Wisconsin, which sets only maximum penalties for each felony class and permits other factors, such as the character of the offender and the need to protect the public from that particular offender, to establish the actual sentence to be imposed.

¶ 15. We begin our constitutional analysis with an examination of the relevant statutes. Wisconsin Stat. § 939.50 establishes Wisconsin's felony classification system. Under § 939.50, felonies are grouped into one of six different classes with letter designations A, B, BC, C, D, and E. The legislature has assigned a maximum penalty to each of these classes. Class A felonies have been assigned the most severe maximum penalty of life imprisonment. Class E felonies have been assigned the least severe maximum penalty of a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.

¶ 16. Wisconsin Stat. § 939.62 is Wisconsin's repeat offender statute, containing the "two strikes" and "three strikes" laws. For more than a century, Wisconsin laws have authorized courts to enhance the sentences of repeat offenders. By 1993 Act 289, the legislature enacted the "three strikes" law, creating a new subcategory of repeat offenders known as "persistent repeaters". Persistent repeaters under the "three strikes" law are defendants who have been convicted of two offenses, each of which the legislature has designated as a "serious felony," and are presently being sentenced for a third such offense.

¶ 17. Several, but not all, Class A, B, BC, and C felonies have been given the "serious felony" designation under the "three strikes" law. These designated felonies range from Class A felonies such as first-degree intentional homicide to Class C felonies such as assault by a prisoner. Persistent repeaters under the "three strikes" law face a mandatory sentence of life in prison without the possibility of parole upon conviction of the third "serious felony."

¶ 18. The legislature added to this new persistent repeater subcategory of repeat offenders by 1997 Act 326, the "two strikes" law. Included in this second group of persistent repeaters are defendants who have been convicted of one offense that the legislature has designated as a "serious child sex offense" and who are being sentenced for a second such offense. Several Class B, BC, C, and D felonies, primarily those addressing sex-related offenses targeting children, are given the "serious child sex offense" designation. These designated felonies under the "two strikes" law range from Class B felonies such as repeated sexual assault of the same child to Class D felonies such as causing a child to view or listen to sexual activity. Persistent repeaters under the "two strikes" law face a mandatory sentence of life in prison without the possibility of parole. Thus, included in the "two strikes" law are some felonies with less severe maximum penalties than some felonies included in the "three strikes" law.

¶ 19. Because a Class A felony is subject to a harsher maximum sentence than a Class B felony, it does appear at first blush that a second Class A homicide conviction should also be subject to a harsher sentence than a second Class B child sexual assault conviction. Upon further analysis, however, we are not persuaded that the lack of symmetry between the "two strikes" law and the "three strikes" law, in light of the felony classification system, is irrational and violates substantive due process. In short, the considerations that determine criminal penalties for particular crimes under Wisconsin law are more complicated than a quick reference to the felony classification system admits.

¶ 20. Wisconsin's felony classification system establishes maximum allowable penalties for each class of felonies that reflect, as a general rule, the "degree of actual or potential harm [to both persons and property] involved in their commission." The graduated maximum punishments reflect a legislative penchant for imposing more severe punishments on people guilty of crimes resulting in death or serious physical harm and for imposing more severe punishments for crimes against persons than against property. Thus, by subjecting Class A offenders to the most severe maximum penalty, the legislature has determined that greater harm is caused by the commission of a Class A felony than by commission of a different class felony.

¶ 21. Importantly, however, the maximum penalties set under the felony classification system do not take other traditional sentencing factors into consideration. The mere fact that a felony receives a Class B label, for instance, does not necessarily reflect a legislative assessment of the character of the offender or the harm to the public that that offender represents. Rather, the legislature has adopted indeterminate sentencing that leaves consideration of factors such as general and specific deterrence, rehabilitation, retribution, and incapacitation to the sentencing court in each individual case.

¶ 22. - The maximum penalty for a Class C felony at the time of the defendant's second conviction, for example, was a fine not to exceed $10,000 or imprisonment not to exceed ten years, or both. The maximum penalty for a Class D felony was a fine not to exceed $10,000 or imprisonment not to exceed five years, or both. Yet under Wisconsin's indeterminate sentencing, a person who committed a Class C felony might have been sentenced to three years while a person who committed a Class D felony might have gotten the maximum five years, depending on the circumstances of the crime itself and the offender as weighed by the sentencing court.

¶ 23. Furthermore, the maximum penalty of a given felony class can be increased. The legislature has mandated enhanced penalties for the commission of crimes under particular circumstances. For example, the legislature has provided that a sentence is increased in certain cases based upon the vulnerability of the victim. In other situations, the legislature has determined that a sentencing court may enhance the maximum sentence for a given crime when the offender engages in certain conduct in the course of his criminal act. In still other situations, the legislature has established that a penalty is enhanced beyond the maximum established under the felony classification system when a crime is committed in a specific location.

¶ 24. The legislature has thus established an overall sentencing scheme in which the commission of a less serious class felony, under certain circumstances set forth in the statutes, exposes an offender to a greater penalty than he would be exposed to had he committed a more serious class felony.

¶ 25. The "two strikes" law, as part of the general repeat offender statute, is a penalty enhancer that attaches to crimes committed under particular circumstances. The "two strikes" law represents the legislative determination that in certain circumstances— namely, when an offense is committed by a person with a particular criminal history that demonstrates a propensity to re-offend — the maximum penalty attached to a crime under the felony classification system no longer limits the sentencing court. Indeed, the "two strikes" law not only increases the maximum sentence allowable but also mandates that the most severe penalty under Wisconsin law be imposed.

¶ 26. The issue in this case is whether there is a rational basis to justify mandating the penalty of life imprisonment without the possibility of parole under the circumstances of a second conviction of a child sexual assault when the penalty is life imprisonment with the possibility of parole under the circumstances of a second conviction of a Class A homicide offense.

¶ 27. The legislature did not expressly state a rationale for the "two strikes" law, and 1997 Wis. Act 326, creating the "two strikes" law, does not contain specific legislative findings to support the law. The absence of a legislative pronouncement, however, is not fatal. A statute will survive a constitutional challenge if this court can conceive of a rational basis for the law. We conclude that a rational basis exists in the present case for the coexistence of the "two strikes" and "three strikes" laws in light of Wisconsin's felony classification system.

¶ 28. The most obvious basis for the "two strikes law" is that the legislature believes that there are greater incidents of recidivism among people who commit serious child sex offenses and that the interests of public safety therefore demand incarceration without the possibility of parole for those offenders who demonstrate that they have not been sufficiently deterred by their first conviction. The legislature could reasonably determine that the need for incarceration without the possibility of parole is especially acute when children, a particularly vulnerable segment of the population, are the explicit targets of the offenses.

¶ 29. The legislature has broad authority to define what conduct constitutes a crime and the appropriate penalties, bound by the constitutional bar against cruel and unusual punishment and guarantees of due process of law and equal protection. "[T]he legislature has the responsibility for enacting laws reflecting society's appreciation of the seriousness of one crime as opposed to another. The legislature also has the obligation to measure the kinds of sanctions that will, in society's judgment, best deter future criminality."

¶ 30. The "two strikes" law focuses on crimes of sexual conduct that victimize children committed by people who have already been convicted of a similar crime. It represents a legislative determination that offenders convicted under these particular circumstances pose a unique threat to society and must therefore face the maximum penalty allowable under Wisconsin law. The "three strikes" law, in contrast, encompasses a wider swath of criminal conduct. It expresses a legislative determination that offenders who commit two of these crimes do not pose the same type of unique threat as persistent repeaters under the "two strikes" law. The legislature has determined that there is something especially troublesome about the threat posed by a repeat child sex offender that does not arise when a person is convicted of a child sex offense after a prior conviction for a different serious felony that does not involve sexual conduct targeting a minor.

¶ 31. The inclusion of certain felonies in each of the two persistent repeater laws need not have been done with "mathematical nicety." The felonies need only have a rational basis to be constitutional. When a statute reasonably addresses the dangers created by one group of offenders, it is not constitutionally infirm just because it does not apply to all offenders to whom it might have been applied.

¶ 32. This court's decision in State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977), upon which the defendant relies, does not compel a contrary result. The Asfoor decision analyzed the constitutionality of a statute, considering the relationship of that statute to another. The Asfoor decision concluded that there was no conceivable rational basis for the legislature to punish a person more severely for negligent use of a weapon resulting in bodily injury than for the exact same negligent use of a weapon where it resulted in death of the victim. "The same negligent conduct may be a felony or misdemeanor with the determining factor being whether death or injury resulted. The irrationality of this classification results from the felony being imposed for causing injury and the misdemeanor for causing death."

¶ 33. The defendant argues that Asfoor stands for the proposition that it is always irrational to make a non-fatal crime of a certain type of culpable conduct punishable by a more serious penalty than a crime of the same type of culpable conduct that results in death. Yet the Asfoor decision does not suggest such a broad holding. Asfoor does not hold that it is always irrational for the non-fatal crime of negligent use of a weapon to be punishable by a greater penalty than negligent use of a weapon resulting in death. Rational reasons may exist for punishing the negligent use of a weapon resulting in bodily injury more severely than the same conduct resulting in death under certain circumstances.

¶ 34. The defendant in the Asfoor decision was not subject to a more severe penalty as a result of distinct circumstances surrounding the commission of his offense. The issue addressed by this court in Asfoor was whether a rational basis existed for the legislature to declare generically that "one who causes the death of another human being by a high degree of negligence in the operation or handling of a firearm commits a misdemeanor, while someone who causes bodily harm in the same manner commits a felony."

¶ 35. The "two strikes" law at issue in the present case imposes the more severe penalty on a person convicted of a non-fatal child sexual assault who had previously been convicted of a' child sexual assault. In this way, the "two strikes" law is limited to a particular subset of offenders who repeatedly victimize a particular subset of people and holds them out for especially harsh penalties. Thus, unlike in Asfoor, the legislature's more severe penalty for certain offenders convicted of non-fatal crimes under the "two strikes" law is neither irrational nor unconstitutional.

¶ 36. For the reasons set forth above, we conclude that the legislature's interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A felony homicide offense. We therefore hold that the defendant's constitutional challenge to the "two strikes" law fails.

By the Court. — The decision of the court of appeals is affirmed.

¶ 37. JON E WILCOX, J., did not participate.

       All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted.

       Wisconsin Stat. § 939.62(2m)(a)lm., (b)2., and (c) compose the "two strikes" law and read as follows:
      (2m) (a) In this subsection:
      lm. "Serious child sex offense" means any of the following:
      a. A violation of s. 948.02,948.025,948.05,948.055,948.06, 948.07, 948.08 or 948.095 or 948.30 or, if the victim was a minor and the convicted person was not the victim's parent, a violation of s. 940.31.
      b. A crime at any time under federal law or the law of any other state....
      (b) The actor is a persistent repeater if one of the following applies:
      2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed.
      (c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.

       Wisconsin Stat. § 939.62(2m)(a)2m., (b)l., and (c) compose the "three strikes" law and read as follows:
      (2m) (a) In this subsection:
      2m. "Serious felony" means any of the following:
      a. Any felony under s. 961.41(1), (lm) or (lx) if the felony is punishable by a maximum prison term of 30 years or more.
      b. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09(1), 940.16, 940.19(5), 940.195(5), 940.21, 940.225(1)....
      (h) The actor is a persistent repeater if one of the following applies:

        1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973, which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted.
      (c)If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.

       Wisconsin Stat. § 939.50(1) and (3) provide as follows:
      (1) Except as provided in ss. 946.43(2m)(a), 946.83 and 946.85, felonies in chs. 939 to 951 are classified as follows:
      (a) Class A felony.
      (b) Class B felony.
      (be) Class BC felony.
      (c) Class C felony.
      (d) Class D felony.
      (e) Class E felony.
      (3) Penalties for felonies are as follows:
      (a) For a Class A felony, life imprisonment.
      (b) For a Class B felony, imprisonment not to exceed 40 years.
      (be) For a Class BC felony, a fine not to exceed $10,000 or imprisonment not to exceed 20 years, or both.
      (c) For a Class C felony, a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.

        (d) For a Class D felony, a fine not to exceed $10,000 or imprisonment not to exceed 5 years, dr both.
      (e) For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.

        See State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977) (addressing a constitutional challenge to a statute based on its relationship to another statute).
      A court imposing a sentence for a first or second Class A homicide conviction retains discretion to impose life imprisonment without the possibility of parole. Therefore it is possible that a person convicted of a second Class B sexual assault and a person convicted of a first or second Class A homicide will receive the same sentence of life imprisonment without the possibility of parole. Nevertheless we state the issue in terms of the most disparate possible sentences for purposes of analyzing the defendant's constitutional challenge.

       The defendant argues that his claim presents a substantive due process challenge. Because the court of appeals addressed an equal protection challenge, the defendant argues, in the alternative, that the "two strikes" law violates equal protection of the laws. The defendant asserts, however, that the two constitutional doctrines are closely related (but not completely coterminous) and that a violation of one may be recharacterized as a violation of the other in the present case.
      The defendant and the State acknowledge that the test for either constitutional challenge in the present case is whether the legislature had a rational basis for enactment of the "two strikes" law. Accordingly, we address the defendant's claim under substantive due process. See Thorp v. Town of Lebanon, 2000 WI 60, ¶ 50, 235 Wis. 2d 610, 612 N.W.2d 59 (noting the similarity between the tests for a violation of equal protection and of substantive due process).

       Wisconsin Stat. § 940.225(1) (1983-1984) reads, in relevant part: "First-degree sexual assault. Whoever does any of the following is guilty of a Class B felony:... (d) Has sexual ' contact or sexual intercourse with a person 12 years of age or younger."

       Wisconsin Stat. § 940.225(1) (1983-1984) is the precursor of Wis. Stat. § 948.02(1), which also classifies the offense as a class B felony.

       The second conviction was not for acts committed against the child who was the victim of his original sexual assault. Rather, the reference to "same child" comes from Wis. Stat. § 948.025 and refers to an independent series of acts committed against a single child, giving rise to his second conviction.

       Wisconsin Stat. § 948.025(1) reads as follows: "Whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of a Class B felony."
      Wisconsin Stat. § 948.02(1) makes it a crime of first-degree sexual assault to have sexual contact or intercourse with a person under the age of 13. Wisconsin Stat. § 948.02(2) makes it a crime of second-degree sexual assault to have sexual contact or intercourse with a person under the age of 16.

       The defendant filed a post-conviction motion arguing that he was entitled to a new trial because Wis. Stat. § 948.025(1) does not require juror unanimity on which of the five or six alleged incidents constituted the three violations of § 948.02(1) or (2) and is therefore unconstitutional. He also challenged the circuit court's restitution order. The circuit court denied his motion for a new trial but did modify the restitution order. These issues are not raised before this court.

        State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883 (1992).

        State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989).

        McManus, 152 Wis. 2d at 129.

       The Fourteenth Amendment to the United States Constitution provides, in relevant part: "[N]or shall any State deprive any person of life, liherty, or property, without due process of law."
      Article I, Section 1 of the Wisconsin Constitution states: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness." Article I, Section 8 of the Wisconsin Constitution further states: "No person may be held to answer for a criminal offense without due process of law." Both Wisconsin Constitution clauses have been cited as a source of substantive due process protection. Compare Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 12, 236 Wis. 2d 113, 613 N.W.2d 557 (substantive due process is protected by Article I, Section 1), and Thorp, 235 Wis. 2d 610, ¶ 45 (substantive due process is protected by Article I, Section 8).

        State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995)(quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990))).

        Thorp, 235 Wis. 2d 610, ¶ 45 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

       Brief and Appendix of Defendant-Appellant-Petitioner at 17 (emphasis in original).

       The sentence for a Class A felony is a mandatory life sentence. See Wis. Stat. § 939.50(3)(a). However, the sentencing judge has the discretion to set a date for parole eligibility. See Wis. Stat. § 973.014.

       Wis. Stat. § 939.60(3)(f) (1997-1998).

        Under Wis. Stat. § 939.50 (1999-2000), the maximum penalties for all felony classes have been increased, except for Class A felonies. Class E felonies are now punishable by up to 5 years imprisonment.

        See Wis. Stat. § 939.62(2m)(b)l., (c).

        See Wis. Stat. § 939.62(2m)(a)2m.

       See Wis. Stat. § 939.62(2m)(a)lm., (b)2.

       See Legislative Council Note, 1977, Wis. Stat. Ann. § 939.50 (West 1996).

        See id.

        See In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 200-01, 353 N.W.2d 793 (1984).

       Wis. Stat. § 939.50(3)(c).

       Wis. Stat. § 939.50(3)(d).

        See, e.g., Wis. Stat. § 939.647 (increasing the penalty for violent felony committed against an elder person).

        See, e.g., Wis. Stat. § 939.64 (increasing the maximum term of imprisonment by 10 years for the commission of a felony while wearing a bulletproof vest); Wis. Stat. § 939.641 (increasing the penalty for commission of a crime while concealing identity).

        See, e.g., Wis. Stat. § 939.632 (increasing the maximum period of imprisonment for the commission of certain violent crimes in a school zone).

        See, e.g., Wis. Stat. § 940.08 (homicide by negligent handling of a dangerous weapon, explosives or fire isa Class D felony); § 939.64 (increasing the maximum term of imprisonment by ten years for commission of a felony while wearing a bulletproof vest).

        See State v. Saunders, 2002 WI 107, ¶ 16, 255 Wis. 2d 589, 649 N.W.2d 263 ("Wis. Stat. § 939.62 is one of many statutory provisions that enhance a convicted criminal defendant's potential exposure to confinement.").

       The prosecutor has discretion whether to charge the defendant as a repeater. Wis. Stat. § 973.12(1).

        Heller v. Doe by Doe, 509 U.S. 312, 320 (1993).

        McManus, 152 Wis. 2d at 129.

       The defendant's argument is presented as a facial challenge to the "two strikes" law, and the defendant disputes the court of appeals' references to the law "as applied" in his case. Determining when an "as applied" challenge is appropriate and when a "facial" challenge is appropriate "has long troubled courts and scholars alike." Schultz v. Natwick, 2002 WI 125, ¶ 15, ¶ 20 n.19, 257 Wis. 2d 19, 653 N.W.2d 266. We hold that a rational basis exists for inclusion of non-fatal Class B child sexual assault felonies under the "two strikes" law and Class A homicide felonies under the "three strikes" law. Whether the rationale supports other non-fatal offenses listed under the "two strikes" law is not before us.

       Statements made by State Representative Mark Green, the act's sponsor, explicitly indicate that a reason for the law was the perceived high recidivism rate among child sex offenders. See Amy Rinard, Life Term for Child Sex Crimes Advances, Milwaukee J. Sentinel, Nov. 6, 1997, at 1.
      As the court of appeals correctly notes, despite the fact that experts dispute the threat of recidivisih posed by child sex offenders, there is some evidence supporting the conclusion that child sex offenders, particularly those with prior convictions, pose a greater risk of recidivism than other offenders. See State v. Radke, 2002 WI App 146, ¶ 10 n.8, 256 Wis. 2d 448, 647 N.W.2d 873.
      The legislature's assumptions about recidivism may be erroneous, but they are arguably correct and that is sufficient on a rational basis review to protect the legislative choice from constitutional challenge. State v. Block, 222 Wis. 2d 586, 592, 587 N.W2d 914 (Ct. App. 1998) (citing State v. Martin, 191 Wis. 2d 646, 658, 530 N.W.2d 420, 425 (Ct. App. 1995) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 320 (1993))).

       Indeed, the defendant concedes that a legitimate purpose of the "two strikes" law is to protect children from becoming the victims of sexual assaults and that if the legislature has come to believe that child sex offenders have a high recidivism rate, the legislature could have decided that an individual who has committed two sexual assaults against a child is likely to do so again and is unlikely to be rehabilitated. Brief and Appendix of Defendant-Appellant-Petitioner at 16-17. The defendant's challenge, again, is that there is no rational basis for including certain non-fatal offenses under the "two strikes" law while simultaneously including certain homicide offenses under the "three strikes" law.

        In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984) ("The legislature determines what constitutes a crime in Wisconsin and establishes maximum penalties for each class of crime."); Spannuth v. State, 70 Wis. 2d 362, 367, 234 N.W.2d 79 (1975) ("It is a well-established proposition in our system of separate branches of government that the authority to punish is a matter for the legislature.").

       The "three strikes" law has withstood a constitutional challenge alleging that the law violates the cruel and unusual punishment provision. See State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996). The "three strikes" law has also survived an equal protection challenge alleging arbitrariness in the designation of certain crimes as "serious" and therefore subject to the "three strikes" law. See State v. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998).

        State v. Martin, 191 Wis. 2d 646, 656, 530 N.W.2d 420 (Ct. App. 1995).

        Heller, 509 U.S. at 321.

        State v. Post, 197 Wis. 2d 279, 329-30, 541 N.W.2d 115 (1995).

        Asfoor, 75 Wis. 2d at 440-41.

       Id at 440.