text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher Gammons, Defendant-Appellant.
    Court of Appeals

      No. 00-0377-CR.

      Submitted on briefs December 7, 2000.

    Decided January 11, 2001.

    2001 WI App 36
    (Also reported in 625 N.W.2d 623.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith A. Findley of the Criminal Appeals Project, Frank J. Remington Center, University of Wisconsin Law School, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.
    Before Dykman, P.J., Roggensack and Johnston, JJ.

       Circuit Judge William D. Johnston is sitting by special assignment pursuant to the Judicial Exchange Program.

   DYKMAN, P.J.

¶ 1. Christopher Gammons appeals from a judgment convicting him of possession of cocaine with intent to deliver. After a police officer stopped the vehicle in which he was a passenger, police eventually found drug evidence that led to his conviction. Gammons argues that the officer lacked a reasonable suspicion to stop the vehicle. He also argues that, even if the officer had a reasonable suspicion to stop the vehicle, the officer exceeded the permissible scope of the stop by continuing to detain the vehicle, asking questions about identification and drugs, and asking to search the vehicle. The State contends that the officer's continued detention of the vehicle and his questions were permissible because he reasonably suspected drug activity at the time of the detention and questioning. We conclude that the officer exceeded the permissible scope of the investigation when he continued to detain the vehicle after the driver told him there were no drugs in the vehicle and that he could not search it. We therefore reverse.

I. Background

¶ 2. On July 17, 1998, Officer John Fahrney stopped a vehicle driven by Tommy Farr because it did not have a rear license plate. Gammons and a third man, Stephen Baskin, were passengers. After Fahrney stopped the vehicle and approached it, he noticed that it had a temporary registration sticker. Fahrney asked all three men for identification. He then ran a driver's license check on Farr and warrant checks on Gammons and Baskin.

¶ 3. Fahrney also asked Farr if there were any drugs in the vehicle, and Farr responded that there were not. Fahrney asked permission to search the vehicle, and Farr refused. Fahrney then told Farr that he would get a police dog to sniff around the vehicle and detect any drugs that were present, after which Farr told Fahrney that he could search the vehicle. At the suppression hearing, Fahrney testified as follows:

A. I obtained Mr. Farr's driver's license information and ran a driver's license check on him. And asked him if there were any drugs in the vehicle.
Q. And what was his response?
A. He said no.
Q. And then what occurred?
A. I asked him if he would allow me to search the inside of the vehicle for drugs.
Q. And what was his response?
A. He said no.
Q. And then what did you do at that point?
A. I advised him I would be getting my police dog out of the car to walk around his vehicle and explained to him if the dog detected any narcotics inside the vehicle he would indicate as such, and if that happened, then I would search his vehicle.
Q. And what happened after that?
A. He then told me to go ahead and search his vehicle.

Farr also testified that he and Fahrney had this conversation.

¶ 4. Additional officers arrived on the scene, and the police ordered Gammons out of the vehicle. Officer John McMahon patted down Gammons and found marijuana on Gammons' person. Gammons struggled with McMahon or other officers before or during the pat down, and the police also found cocaine in the area outside the vehicle where Gammons had been positioned.

¶ 5. Gammons was charged with possession of cocaine with intent to deliver within one thousand feet of a school in violation of WlS. STAT. §§ 961.41(lm)(cm)l and 961.49(l)(b)6 (1997-98), obstruction of an officer in violation of WlS. STAT. § 946.41(1), and possession of THC in violation of § 961.41(3g)(e), all as a habitual offender under WlS. Stat. § 939-.62(l)(a) and (b). Gam-mons moved to suppress all evidence seized by the police on the night of the stop. The trial court denied the motion, and Gammons pleaded guilty to the possession with intent to deliver charge. The trial court entered a judgment of conviction, and Gammons appeals.

II. Analysis

¶ 6. A traffic stop is a form of seizure triggering Fourth Amendment protections from unreasonable searches and seizures. State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987). The police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is violating the law. Id. We first determine whether the initial interference with an individual's liberty was justified, and then consider whether subsequent police conduct was reasonably related in scope to the circumstances that justified the initial interference. Terry v. Ohio, 392 U.S. 1, 19-20 (1968); State v. Griffith, 2000 WI 72, ¶ 26, 236 Wis. 2d 48, 613 N.W.2d 72. We uphold the trial court's findings of fact unless they are clearly erroneous. State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). Whether the circumstances of a stop or detention meet constitutional standards, however, is a question of law that we review de novo. Id.

¶ 7. Gammons first argues that, because the vehicle bore a temporary license sticker, Fahrney lacked a reasonable suspicion to stop it. We disagree. In State v. Griffin, 183 Wis. 2d 327, 329, 515 N.W.2d 535 (Ct. App. 1994), we held that "the absence of a registration plate, and reasonable inferences that can be drawn from that fact, constitute[ ] reasonable suspicion sufficient to justify an investigatory stop of a motor vehicle." In Griffin, the defendant's vehicle bore a "license applied for" sign. Id. at 329-30. We reasoned that, without stopping the vehicle, the officers in Griffin had no way of knowing whether the defendant was in violation of vehicle registration laws. Id. at 333-34.

¶ 8. While the temporary license sticker in this case may be a better indicator of registration than the "license applied for" sign in Griffin, the trial court found that at the time of the stop, Fahrney did not see the temporary sticker. Therefore, like the officers in Griffin, Fahrney had no way of knowing whether Farr was in compliance with vehicle registration laws without stopping the vehicle.

¶ 9. Gammons seems to suggest in his brief that Fahrney could not have had a reasonable suspicion to stop the vehicle because he "could have" seen the temporary sticker if he had looked more closely. But what Fahrney could have seen is not the test. The trial court found that Fahrney did not initially see the sticker. This finding was not clearly erroneous because it is supported by evidence in the record. See State v. Hampton, 217 Wis. 2d 614, 622, 579 N.W.2d 260 (Ct. App. 1998). At the time that Fahrney stopped the vehicle, it was dark, and Fahrney testified that he did not see the sticker until after he stopped the vehicle. Baskin testified that the sticker, though orange with dark lettering, was only about eight to ten inches long by three to four inches high.

¶ 10. Gammons next argues that when Fahrney approached the vehicle and saw the temporary sticker, any suspicions of illegal activity were dispelled, and he no longer had a basis to detain Gammons and the other men. Therefore, Gammons argues, all of the subsequent police questioning and conduct, including Fahrney's extraction of Farr's consent to search the vehicle, exceeded the permissible scope of the stop.

¶ 11. During an investigative detention, whether the intrusion is reasonable depends on whether the police conduct is reasonably related to the circumstances justifying the initial police interference. Terry, 392 U.S. at 19-20; Griffith, 2000 WI 72 at ¶ 26. "[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). "The scope of the detention must be carefully tailored to its underlying justification." Id. The State has the burden to show that any seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope. Id.

¶ 12. The supreme court has concluded that "when a passenger has been seized pursuant to a lawful traffic stop, the seizure does not become unreasonable . . . simply because an officer asks the passenger for identification during the stop." Griffith, 2000 WI 72 at ¶ 65. In Griffith, the court identified several reasons why a police officer may need to investigate the identity of passengers during the course of a traffic stop. Id. at ¶¶ 45-48. For example, police may need to determine whether anyone other than the driver in the vehicle is licensed to drive, or they may need to identify potential witnesses to unlawful conduct. Id. at ¶¶ 47-48.

¶ 13. Fahrney did not violate Gammons' Fourth Amendment rights by requesting his driver's license and running a check on him. As the Griffith court explained, such questions and actions are reasonably related in scope to the purpose of a traffic stop, and no further justification is required. Griffith, 2000 WI 72 at ¶ 45.

¶ 14. The question of whether Fahrney could permissibly ask Farr and the others about drugs and to search the vehicle is a closer one, and so we next examine in some detail the principal cases on which Gammons and the State rely. The State relies primarily on State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), arguing that police may extend a stop and ask questions unrelated to the justification for the stop.

¶ 15. In Gaulrapp, two police officers stopped the defendant for a defective muffler. Gaulrapp, 207 Wis. 2d at 603. One of the officers asked the defendant if he had any drugs or weapons in the vehicle, and he replied that he did not. Id. at 603. The police then asked if they could search the vehicle and his person, and the defendant replied that they could. Id. The police found cocaine on the defendant and marijuana in his truck. Id. at 603-04. The defendant moved to suppress the evidence on the ground that the police had illegally expanded the scope of a traffic stop when they asked him about drugs and weapons. Id. at 604. The trial court denied the motion. Id.

¶ 16. On appeal, the defendant in Gaulrapp argued that "the very asking of the first question about drugs and firearms, without a reasonable suspicion that he possessed either, transformed the legal stop into an illegal stop, making his consent automatically invalid." Gaulrapp, 207 Wis. 2d at 608. We disagreed, explaining that Fourth Amendment jurisprudence does not focus only on the subject matter of the questions. Id. at 609. We reasoned that "[the defendant's detention was not unreasonably prolonged by the asking of one question." Id.

¶ 17. Gammons relies primarily on a different case, State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 ( Ct. App. 1999). In Betow, the defendant was stopped for speeding. Betow, 226 Wis. 2d at 92. After a computer check on the vehicle and the defendant's license revealed no further law violations, the police officer began questioning the defendant. Id. The officer asked the defendant if he could search the vehicle with the aid of a police dog. Id. The defendant refused the vehicle search, although he consented to a pat down of his person. Id. at 92. After finding nothing on the pat down, the officer decided to continue to detain the defendant and conduct a dog-assisted search of the vehicle anyway. Id. at 92-93. With the dog's assistance, the officer located marijuana in the defendant's vehicle. Id. at 93.

¶ 18. We concluded that the officer in Betow improperly detained the defendant. Betow, 226 Wis. 2d at 92. We first explained the basic interrelationship of a reasonable suspicion justifying a traffic stop and the nature of that initial traffic stop:

There is no question that a police officer may stop a vehicle when he or she reasonably believes the driver is violating a traffic law; and, once stopped, the driver may be asked questions reasonably related to the nature of the stop — including his or her destination and purpose. Such a stop and detention is constitutionally permissible if the officer has an "articulable suspicion that the person has committed or is about to commit [an offense]."

Id. at 93—94 (citations omitted); see also Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975). We then addressed the permissible scope of the subsequent detention:

[T]he scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention — keeping in mind that these factors, like the factors justifying the stop in the first place, must be "particularized" and "objective."

Betow, 226 Wis. 2d at 94 (citation omitted).

¶ 19. While Betow and Gaulrapp may each suggest a different result here, we are convinced that Betow is more factually analogous. In Gaulrapp, when the police asked the defendant if they could search him and his vehicle, the defendant immediately consented. Gaulrapp, 207 Wis. 2d at 603. That was not the case here. Like the defendant in Betow, Farr did not consent to a search of his vehicle the first time the police officer asked. Like the police officer in Betow, Fahrney continued to detain the vehicle after its driver initially refused a search of it.

¶ 20. The State argues that Betow is distinguishable because, in that case, the issue was whether the officer had a reasonable suspicion to detain a vehicle to allow a police dog to assist in a search of it. The State argues that here, the police had reasonable suspicion of drug activity justifying further detention of the men for a dog search. We disagree.

¶ 21. In evaluating reasonable suspicion, we must examine whether all the facts, when taken together, could constitute a reasonable suspicion. State v. Allen, 226 Wis. 2d 66, 75, 593 N.W.2d 504 (Ct. App. 1999). In support of its contention that Fahrney could have reasonably suspected Gammons and the others of drug activity, the State points to the following evidence in the record: the vehicle was stopped in a "drug-related" or "drug crime" area; it was 10:00 p.m.; the vehicle was from Illinois; Fahrney had knowledge of prior drug activity by each of the three men in the vehicle; and Gammons appeared to be nervous and uneasy.

¶ 22. Again, a comparison to Betow is helpful. In Betow, the State argued that similar circumstances supported the existence of reasonable suspicion, and we disagreed. Betow, 226 Wis. 2d at 95-98. The State pointed to the following facts, arguing they formed the basis for a reasonable suspicion: the defendant's wallet had a picture of a mushroom on it, which the State argued indicated drug activity; the defendant was stopped late at night; the defendant appeared to be nervous; the defendant was returning to Appleton from Madison, a city the State claimed was well known for its drug traffic; and the defendant's story about what he had been doing in Madison seemed implausible to the police officer. Id. at 95-97. We concluded that, under those circumstances, the officer could not have formed a reasonable suspicion of drug activity justifying further detention of the defendant for a drug investigation. Id. at 98.

¶ 23. Other than Fahrney's personal knowledge of prior drug activity, the circumstances the State relies on here were all present in Betow: an out-of-town vehicle in an area purportedly known for drug activity; a night-time stop; and a nervous suspect. Moreover, the State does not assert that Gammons or Farr gave an implausible story of his whereabouts like the defendant in Betow. Finally, nothing in the record demonstrates that Fahrney observed Gammons or the others say or do anything that specifically indicated drug use or possession on the night of the stop.

¶ 24. While Fahrney's initial questions may have been permissible under Griffith and Gaulrapp, no additional suspicious factors suggesting drug activity developed from Farr's responses to Fahrney's initial questions. Therefore, Fahrney had no basis to continue to detain Gammons and the others after Farr stated that the men did not have any drugs and denied Fahr-ney's first request to search the vehicle. At that point, the Fourth Amendment required Fahrney to terminate the stop and allow Gammons and the other men to continue about their business. Instead, Fahrney continued to detain the vehicle and told Farr he was going to get a police dog to sniff the car. At that moment, the stop was transformed into an unlawful detention, and the State cannot rely on Farr's subsequent consent to search to justify the police actions. Therefore, the drug evidence the police gathered from the subsequent searches was obtained in violation of Gammons' Fourth Amendment rights and should have been suppressed. See State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 786-87, 601 N.W.2d 287 (Ct. App. 1999). On remand, the trial court should grant Gammons' motion to suppress.

¶ 25. Gammons also argues that although Farr eventually consented to a search of the vehicle, Farr's consent was involuntary because Fahrney threatened to bring in a police dog to sniff the vehicle and because the police engaged in other coercive tactics. Gammons further argues that the pat-down search of his person was unreasonable under the Fourth Amendment. We need not reach these last two questions because we have already determined that once the stop was transformed into an unlawful detention, the evidence the police subsequently obtained should have been suppressed.

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

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

       As a preliminary matter we note that, as a passenger in a stopped vehicle, Gammons has standing to challenge police conduct during a stop that violated his Fourth Amendment rights.
        State v. Harris, 206 Wis. 2d 243, 255-56, 557 N.W.2d 245 (1996).


source: Caselaw Access Project

author: WEDEMEYER, P.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Ludwig Guzman, Defendant-Appellant.

    Court of Appeals

      No. 99-2249-CR.

      Oral argument October 30, 2000.

    Decided January 17, 2001.

    2001 WI App 54
    (Also reported in 624 N.W.2d 717.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Robert E. Haney of Podell, Ugent, Haney & Miszewski, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, P. J., Schudson and Curley, JJ.

       Petition to review denied.

   WEDEMEYER, P.J.

¶1. Ludwig Guzman appeals from a judgment entered after a jury convicted him of one count of endangering safety by use of a dangerous weapon as party to a crime, and one count of criminal gang member solicitation while armed as party to a crime. Guzman raises four issues: (1) whether the trial court erred when it ruled that the State was not collaterally estopped from prosecuting Guzman on the gang solicitation charge; (2) whether the trial court erroneously exercised its discretion when it refused to discharge two jurors for cause; (3) whether the trial court erroneously exercised its discretion when it excluded a defense witness; and (4) whether the trial court erred when it denied Guzman's motion for a mistrial based on prosecutorial misconduct. Because the State was collaterally estopped from prosecuting Guzman with the "while armed" penalty enhancer on the gang solicitation charge, we reverse and remand for resentencing. Because the trial court did not erroneously exercise its discretion with respect to jury selection, excluding a defense witness, or denying the motion for a mistrial, we affirm on those issues.

I. BACKGROUND

¶ 2. On November 25, 1997, Guzman was charged with endangering safety by use of a dangerous weapon as party to a crime. By information dated December 16, 1997, the State added a second count of felon in possession of a firearm. The case was tried to a jury in May 1998. The jury was unable to reach a verdict on the first count, but found Guzman not guilty on the second count. The trial court declared a mistrial on the first count.

¶ 3. On June 6,1998, the State filed an amended information charging Guzman with endangering safety by use of a dangerous weapon as party to a crime, and with criminal gang member solicitation while armed as party to a crime. Guzman moved to strike the information on grounds of double jeopardy and collateral estoppel. The trial court denied the motion. The second jury trial occurred in September 1998. He was found guilty on both counts. Guzman filed post-verdict motions seeking a mistrial, which were denied. Guzman now appeals.

II. DISCUSSION

A. Collateral Estoppel

¶ 4. Guzman first claims that the gang solicitation charge was duplicitous to the felon in possession charge, of which he was acquitted in the first jury trial. He argues that the first jury found he did not actually possess a firearm, and that the gang solicitation charge was based on possession of a firearm. As a result, he contends that the acquittal on the felon in possession charge operates to estop prosecution on the gang solicitation charge, while armed. We agree that the State improperly presented evidence on the while armed penalty enhancer of the gang solicitation charge because the first jury had already decided that Guzman did not possess a firearm on the date and time involved.

¶ 5. During the first trial, the State argued that Guzman provided the firearm to his co-conspirator during a meeting at Guzman's house on November 24, 1997. As noted, the charge in the first trial was felon in possession of a firearm. Guzman stipulated that he was a felon. Thus, the only issue for the jury on this charge in the first trial was whether Guzman was in possession of a firearm. The jury found him not guilty on this charge; that is, he did not possess a firearm.

¶ 6. In the second trial, the State argued again that Guzman possessed a firearm on November 24, 1997, at his house during a meeting with his co-conspirators. This evidence was used to support the charge of gang solicitation, while armed. We agree with Guzman that the State was collaterally estopped from using this evidence to support the while armed penalty enhancer of the gang solicitation charge because the first jury found Guzman not guilty of possession of a firearm.

¶ 7. "Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit." State v. Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998). The issue of ultimate fact presented in both trials was whether Guzman handed the gun over to a co-conspirator during a meeting at Guzman's house on November 24, 1997. The jury in the first trial concluded that Guzman was not in possession of a gun at that time. Therefore, the State was estopped from arguing during the second trial that Guzman was in possession of a gun at that time. The first jury had already decided this issue of ultimate fact in Guzman's favor.

¶ 8. Our conclusion, however, does not affect the conviction on the substantive charge of criminal gang member solicitation because there is other evidence in the record sufficient to sustain the jury's conviction on that charge. See State v. Peete, 185 Wis. 2d 4, 23, 517 N.W.2d 149 (1994). Based on our conclusion, however, Guzman is entitled to a resentencing on the criminal gang member solicitation conviction, without consideration of the penalty enhancer for use of a dangerous weapon. See State v. Avila, 192 Wis. 2d 870, 893, 532 N.W.2d 423 (1995). Accordingly, we reverse that portion of the judgment and remand for resentencing with directions to the trial court to resentence Guzman on the gang solicitation charge without the while armed penalty enhancer.

B. Jury Selection

¶ 9. Guzman's next claim is that the trial court erroneously exercised its discretion when it refused to strike two jurors for cause. The first juror, Michael Ferch, told the trial court that he had a medical condition which made it hard for him to sit, and the condition, combined with the medication he was taking, would prevent him from paying attention. Guzman requested that Juror Ferch be struck for cause. The trial court denied the motion, ruling that Juror Ferch "might find it uncomfortable. But he has been able to sit through the proceedings up until now." The second juror, Bob Schmidt, advised that he would not be able to be impartial because he was self-employed, and every moment that he was away from his business created a financial hardship. Guzman moved to strike Juror Schmidt for cause. The trial court denied the motion, ruling: "I'm sure it's an economic hardship, but no more so than it is on a lot of other people. Mr. Schmidt has a duty. I'm not going to excuse him based on the reasons that I heard." Guzman used a peremptory strike to excuse Juror Schmidt from the panel. Juror Ferch was not struck and served on the panel. Guzman argued that Juror Ferch's medical condition made him physically unfit to properly discharge the duties of a qualified juror and that Juror Schmidt was biased. Consequently, he contends both should have been struck for cause.

¶ 10. A defendant's right to receive a fair trial by a panel of impartial jurors is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Art. I, § 7 of the Wisconsin Constitution, as well as principles of due process. State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770 (1999). "To be impartial, a juror must be indifferent and capable of basing his or her verdict upon the evidence developed at trial." Id. The requirement that a prospective juror must be indifferent is codified in WlS. STAT. § 805.08(1). Id. The statute directs that "[i]f a juror is not indifferent in the case, the juror shall be excused." Id. Jurors are presumed impartial, and the challenger to that presumption bears the burden of proving bias. State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990).

¶ 11. Whether a prospective juror is biased and should be removed from the jury panel for cause is left to the trial court's discretion. See State v. Ferron, 219 Wis. 2d 481, 491-92, 579 N.W.2d 654 (1998). We will overturn the trial court's decision only where the prospective juror's bias is "manifest." Id. at 496-97. If the circuit court errs in failing to dismiss a challenged juror for cause and, as a result, the defendant uses a peremptory strike to remove that juror, the defendant is entitled to a reversal and a new trial. See State v. Ramos, 211 Wis. 2d 12, 24-25, 564 N.W.2d 328 (1997).

¶ 12. The supreme court recently categorized and defined the three types of juror bias: subjective, objective and statutory. See Faucher, 221 Wis. 2d at 716. "Subjective bias" refers to the prospective juror's state of mind and is "bias that is revealed through the words and the demeanor of the prospective juror." Id. at 717. A trial court's factual finding that a prospective juror is or is not subjectively biased will be upheld unless it is clearly erroneous. See id. at 718. "Objective bias" is determined through the facts and circumstances of the juror's responses despite the fact that the juror states that he or she can be impartial. See State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760 (1999). Objective bias exists when a reasonable person in the juror's position would not be able to set aside a personal opinion or prior knowledge. See id. "Statutory bias" exists if the prospective juror falls into one to the categories listed in WlS. STAT. § 805.08.

¶ 13. Guzman does not address the three types of statutory bias; instead, he argues generally that the two jurors could not serve impartially. We conclude statutory bias is inapplicable to this case. With respect to Juror Schmidt, the question is whether he was subjectively or objectively biased. With respect to Juror Ferch, however, the issue is whether his physical infirmity prevented him from sitting as a juror on this case.

¶ 14. Juror Ferch indicated he did not want to serve on the jury because he was physically unable to do so. He had a bad back, and took medication, which made it difficult for him to sit and pay attention for long periods of time. Here, the trial court found that Juror Ferch's physical condition did not prevent him from serving as a juror. We cannot conclude that this finding was clearly erroneous. The trial court had the opportunity to observe the demeanor and assess the credibility of this witness first-hand. The trial court was better able to determine whether Juror Ferch's condition would interfere with his ability to discharge his duties as a juror. After hearing Juror Ferch's explanation, and personally observing Ferch, the trial court ruled:

Jury service is a duty, and I don't think one can get off the duty simply by saying I am not going to pay attention. It's their duty to pay attention. I think that he might find it uncomfortable. But he has been able to sit through the proceedings up until now.
[H]e seemed to be alert, and I think .. . [h]e has the capacity.

¶ 15. The transcript also reflects that Juror Ferch, despite his physical infirmity, was employed at Airborne Express where he admitted he was able to sit for three to four hours a day. During the voir dire, the trial court found that Juror Ferch appeared lucid, alert, aware of what was going on, and capable of discharging his duties. Based on the foregoing, the trial court found that Juror Ferch's physical limitation did not prevent him from serving as a juror. In fact, despite Juror Ferch's statements, he was able to, and did, serve as a juror. There is nothing in the record indicating that Juror Ferch made special requests for accommodations or that his condition interfered with the trial. Accordingly, we conclude that the trial court's finding that Juror Ferch was able to serve as a juror was not clearly erroneous. Therefore, the trial court's discretionary decision denying the motion to strike Juror Ferch for cause does not constitute reversible error.

¶ 16. We now turn to the second juror challenge. Juror Schmidt expressed that he would not be able to be impartial because he was self-employed, which made being a juror a hardship. Does his attitude make Juror Schmidt either subjectively or objectively biased? We conclude that it does not. Many jurors are working individuals, taken away from their regular place of employment. Although many of these jurors would rather be at their regular place of employment, this does not render them unable to serve as fair and impartial jurors. As the trial court pointed out:

As far as jury selection is concerned, it just seems to me that there is a difference between juror bias and juror convenience. I don't think there is anything to show that either of these jurors was in any way biased. They may not have found it convenient, but jury service is an obligation, and sometimes I think that a judge in performing his obligations, or her obligations, has to insist that obligation be met.
... I think when we conduct that voir dire examination, in effect the Judge is in the position of being the trier of fact and has to assess the credibility of jurors where they say well it won't be convenient, Judge. I assessed that credibility and based upon that I felt that these jurors were able to serve and therefore I did not strike them for cause.

¶ 17. Here, Juror Schmidt admitted that he did not want to serve, that he was self-employed, and his income would suffer if he was forced to serve. He said that he thought this would affect his ability to be fair. The trial court disagreed. Again, the trial court was in a superior position to assess credibility and demeanor of this juror. It determined that Juror Schmidt would be able to set aside any negative feelings he felt as a result of having to serve as a juror, and that he would be able to judge the case based on the evidence. As a part of this analysis, the trial court reasoned that this was not a two or three week trial. Rather, the trial was expected to last two or three days. The trial court's finding is not clearly erroneous. It is not uncommon for prospective jurors to be annoyed at being summoned for jury service. After all, this civic duty disturbs the regular routine, takes them away from other important employment, and may even impact their pocketbooks. Nevertheless, jury service is an extremely important civic duty, and an integral part of our system of jurisprudence. Inconvenience and inability to work during regular working hours should not, and cannot, be transformed into bias sufficient to strike a juror for cause. Thus, we reject Guzman's claim that the trial court erroneously exercised its discretion when it refused to discharge Juror Schmidt.

C. Exclusion of Witness

¶ 18. Guzman next argues that the trial court erroneously exercised its discretion when it excluded the testimony of defense witness, Juan Rosado. Guzman argues that Rosado should have been allowed to testify, despite lack of notice, because Rosado was not an alibi witness, but rather, was offering impeachment evidence. We disagree.

¶ 19. Evidentiary rulings on the admission and exclusion of evidence are reviewed subject to the erroneous exercise of discretion standard. State v. Plymesser, 172 Wis. 2d 583, 591, 493 N.W.2d 367 (1992). When there is a reasonable basis for the eviden-tiary ruling, we will not disturb it. See id.

¶ 20. During the second trial, Guzman provided the State with a witness list that, for the first time, identified Rosado. The trial court heard Rosado's testimony in camera. Among other things, Rosado testified that he had spoken with Guzman's counsel two weeks earlier and advised counsel that he had been with Guzman at Guzman's house on the date of the incident in this case. Rosado also indicated that he never saw Guzman with a gun on that date. The trial court excluded Rosado from testifying because Guzman failed to timely name Rosado as a witness, and because Guzman had failed to provide notice under the alibi statute, Wis. Stat. § 971.23(8)(a).

¶ 21. Guzman contends that he did not need to file a notice under the alibi statute because Rosado was an impeachment, not an alibi, witness. The State responds that even if that is so, that was not the sole basis for the trial court's decision to exclude the testimony. The State argues that Rosado testified that he spoke with Guzman's counsel two weeks earlier, and that despite this, the State was not advised that Rosado might be called as a defense witness until the third day of trial. The trial court ruled that based on this untimely notice, Rosado's testimony would be excluded. Guzman offers no reply to this argument.

¶ 22. The record supports the trial court's discretionary decision to exclude Rosado's testimony. Guzman was aware of this witness from the date of the incident. Counsel spoke with Rosado at least two weeks before notice of his testimony was provided to the State. Under these circumstances, it was reasonable for the trial court to exclude Rosado's testimony based on the fact that he was not disclosed as a potential witness until the third day of the second trial. "Wisconsin has abandoned the concept of 'trial by ambush' where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts." Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). The purpose of the rule is to avoid unfair surprise. A party who fails to timely disclose witnesses risks the consequence imposed here?exclusion of that witness's testimony.

¶ 23. In addition, the trial court did not summarily exclude Rosado's testimony. The trial court took the time to hear the testimony in camera before making its decision. Based on the substance of the testimony, the trial court also ruled'that it constituted alibi testimony; therefore, it could not be properly offered because Guzman failed to. comply with the notice requirements of the alibi statute. We agree with the trial court that Rosado's statements that Guzman was with him the entire day of the incident and that they never left the house, "walks, talks, smells, and looks like an alibi."

D. Prosecutorial Misconduct

¶ 24. Guzman contends that the prosecutor invaded the province of the jury when he referred to a penalty enhancer three times during closing argument. Guzman argues that the jury is not supposed to be advised regarding sentencing issues, because the issue of guilt is independent of punishment. See State v. Garnett, 243 Wis. 615, 617, 11 N.W.2d 166 (1943). We reject Guzman's claim because he failed to raise a timely objection.

¶ 25. The comments that Guzman challenges on appeal occurred during the prosecutor's closing argument to the jury. Guzman did not object during the closing. Instead, he gave the defense closing to the jury, and allowed the prosecutor to give rebuttal closing. Only then did Guzman object to the prosecutor's comments and move for a mistrial. In order to preserve this objection, Guzman was obligated to make a contemporaneous objection and move for a mistrial. See State v. Goodrum, 152 Wis. 2d 540, 549, 449 N.W.2d 41 (Ct. App. 1989). The purpose of the contemporaneous objection is to allow the trial court to correct any alleged error with minimal disruption. See State v. Boshcka, 178 Wis. 2d 628, 643, 496 N.W.2d 627 (Ct. App. 1992). A timely objection would have afforded the trial court the opportunity to correct any potential error. See State v. Seeley, 212 Wis. 2d 75, 81, 567 N.W.2d 897 (Ct. App. 1997). Therefore, when a timely objection is not made challenging the closing remarks of the prosecutor, a defendant waives his or her right to a review on that issue. See id. Guzman waived his right to challenge the prosecutor's remarks here by failing to object at the time the comments were made.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.


author: ANDERSON, J.

text:
    Town of Mount Pleasant, a Wisconsin Municipal Corporation, Plaintiff-Appellant, v. Hartford Accident and Indemnity Company and Twin City Fire Insurance Company, Defendants-Respondents.
    Court of Appeals '

      No. 00-0480.

      Submitted on briefs November 9, 2000.

    Decided January 17, 2001.

    2001 WI App 38
    (Also reported in 625 N.W.2d 317.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey Leavell and Michael R. Vescio of Jeffrey Leavell, S.C., Racine.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Michael R. Fitzpatrick of Brennan, Steil, Basting & MacDougall, S.C., and Robert S. Soderstrom, James R. Murray, and Eileen Sloan Newlin of Tressler, Soderstrom, Maloney & Priess, Chicago, Illinois.
    Nonparty briefs were filed by Robert C. Burrell, Virginia L. Newcomb, and Paul F. Graves of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, for Insurance Environmental Litigation Association; Susan R. Tyndall of CMTLegal Group, Lid., Waukesha, for Civil Trial Counsel of Wisconsin; George Burnett of Lieb-mann, Conway, Olejniczak & Jerry, S.C., Green Bay, for Fort James Corporation; and Mark L. Thomsen of Cannon & Dunphy, S.C., Brookfield, for Wisconsin Academy of Trial Lawyers.
    Before Brown, P. J., Anderson and Snyder, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. The Town of Mount Pleasant (Town) appeals from a summary judgment in favor of Hartford Accident and Indemnity Company and Twin City Fire Insurance Company (Hartford). The Town asked the circuit court to issue a declaratory judgment establishing that Hartford is obligated to the Town for certain costs, fees, disbursements and damages that the Town had suffered or paid as a result of a lawsuit in the United States District Court for the Eastern District of Wisconsin. In response, Hartford filed a motion for summary judgment. We affirm because there is no genuine issue of material fact. Hartford was not given adequate notice of the lawsuit against the Town and is therefore not responsible for reimbursement to the Town.

Backgroundl Facts

¶ 2. The Town was an insured policyholder of Hartford's from October 10, 1979, through October 10, 1982. The Town's Hartford policies were in effect and provided coverage for the claims made against the Town by the plaintiffs in Hunt's Generator Committee, et al. vs. Town of Mount Pleasant, et al., No. 95-C-0754. The Town was served copies of the complaint and amended complaint in the Hunt's Generator case on July 20, 1995, and on August 7, 1995, respectively. The Town, upon service of the complaints, contacted its current insurance carriers, Wausau and Sentry Insurance. Wausau and Sentry Insurance advised the Town that there was no coverage for the claim made by the Hunt's Generator plaintiffs. The Town retained counsel and defended the claims brought by the plaintiffs in the Hunt's Generator case.

¶ 3. In 1998, after the claims against the Town were settled, the Town discovered the insurance policies issued by Hartford and on April 1,1998, demanded that Hartford reimburse the Town for the settlement costs, fees and disbursements. Hartford declined the Town's claim; the Town brought an action in the circuit court, alleging that Hartford knew or should have known of the claims made against the Town given that Hartford had represented an unrelated defendant (Crestview Sanitary District) in the Hunt's Generator case. The Town claimed that Hartford's knowledge and involvement in the Hunt's Generator case required Hartford to offer defense and/or coverage to the Town.

¶ 4. Hartford responded by asking the circuit court to grant a summary judgment motion against the Town. Hartford supported its motion with two arguments. First, Hartford claimed that the Town failed to tender the underlying lawsuit (i.e., the Hunt's Generator case) to Hartford. Second, Hartford argued that the Town violated coverage conditions of the policies by making voluntary payments and otherwise assuming obligations, incurring expenses, and settling the underlying case without the consent or authorization of Hartford notwithstanding the possibility of the existence of coverage for the claims against the Town in the Hunt's Generator case.

¶ 5. The circuit court dismissed the claim, finding that the Town did not tender its claim to Hartford and thus did not provide adequate notice. The Town appeals.

Standard of Review

¶ 6. We review a motion for summary judgment using the same methodology as the trial court. Ottinger v. Pinel, 215 Wis. 2d 266, 272, 572 N.W.2d 519 (Ct. App. 1997). That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

The dispute must center on a "genuine issue of material fact." A factual issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A "material fact" is one that impacts the resolution of the controversy. In analyzing whether there are genuine issues of material fact, we draw all reasonable inferences in favor of the nonmoving party.

Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 32, 236 Wis. 2d 435, 613 N.W.2d 142 (citations omitted). Summary judgment presents a question of law that we review de novo. Ottinger, 215 Wis. 2d at 273.

Analysis

¶ 7. The Town relies upon Towne Realty, Inc. v. Zurich Insurance Co., 201 Wis. 2d 260, 548 N.W.2d 64 (1996); Delta Group, Inc. v. DBI, Inc., 204 Wis. 2d 515, 555 N.W.2d 162 (Ct. App. 1996); and Riccobono v. Seven Star, Inc., 2000 WI App 74, 234 Wis. 2d 374, 610 N.W.2d 501, for the proposition that when an insurer receives notice that there is a lawsuit, the insurer is under an obligation to determine if any named insured in that lawsuit desires a defense. The Town's interpretation of these cases places the obligation upon the insurer to search its records and to clarify with every party that was or is an insured whether it desires the protection of the policy. We do not accept the Town's interpretation.

¶ 8. The Town overreads Towne Realty, Delta Group, and Riccobono. In each of these cases, the insurer knew the identity of its insured and had notice that its insured was facing a pending claim. Towne Realty, 201 Wis. 2d at 264-65; Delta Group, 204 Wis. 2d at 518-19; Riccobono, 2000 WI App 74 at ¶¶ 3, 4.

¶ 9. In Towne Realty, an agent of the insured (Towne Realty) had sent a letter to the insurer (Zurich) advising the insurer of the claim against the insured. Towne Realty, 201 Wis. 2d at 264. In addition, a copy of the summons and complaint against the insured was also attached to this letter. Id. at 265. There was no doubt that Zurich had notice that a suit had been initiated against its insured. Id. at 268. Our supreme court held that proper tender of defense was given. Id. at 267. Zurich's knowledge of the identity of its insured, combined with its knowledge of the claim against that insured, triggered its duty to defend.

¶ 10. In Delta Group, a construction company (DBI) contracted and performed some construction work for Delta. Delta Group, 204 Wis. 2d at 518. The work was substandard and DBI was notified by Delta of the problems. Id. Before litigation began, DBI filed a general liability loss notice with its insurer, Maryland Casualty Company (Maryland). Id. Maryland disclaimed coverage to its insured, DBI, and later to the arbitrated assignee of its insured, Delta. Id. Delta filed a complaint against DBI and an amended complaint that added Maryland. Id. at 519. On appeal, we concluded that Maryland breached its duty to defend its insured by failing to protect DBI's interest while contesting coverage. We held that the terms of the arbitrated agreement between its insured (DBI) and its insured's assignee (Delta) therefore bound Maryland. Id. at 526. As in Towne Realty, Maryland's knowledge of the identity of its insured, combined with its knowledge of the claim against that insured, triggered its duty to defend.

¶ 11. In Riccobono, after Riccobono filed suit against Seven Star, Seven Star notified one of its two insurance carriers, Society Insurance (Society). Its other carrier, Capitol Insurance (Capitol), was notified later by Society, after Society discovered the existence of Capitol's additional insurance for Seven Star. Riccobono, 2000 WI App 74 at ¶ 29. The main question in Riccobono was which insurer was the primary insurer and which was the excess insurer of Seven Star. Id. at ¶ 2. We held that Capitol was the primary insurer. Id. And thus, as in Towne Realty and Delta Group, Capitol's knowledge of the identity of its insured, combined with its knowledge of the claim against that insured, triggered its duty to defend.

¶ 12. We do not read these cases to say that notice to an insurance company from one of its insureds in a multi-party lawsuit is notice from any other of its insureds in the same lawsuit. Instead, we read these cases to stand for the proposition that notice from the insured does not have to meet technical requirements in order to trigger the duty of the insurer to defend; if an insurer is made aware of a lawsuit against one of its insured, the burden is on the insurer to clarify the needs of the insured. Unlike the insurance companies of Zurich, Maryland and Capitol, Hartford did not know the identity of its insured nor did it know that there was a claim filed against its insured. The duty triggered in Towne Realty, in Delta Group, and in Ric-cobono is not triggered here.

¶ 13. It was not the responsibility of Hartford to search its records to determine whether any other of its insureds had been named in the Hunt’s Generator case. The Town did not properly notify Hartford and Hartford was not otherwise notified that the Town was its insured and was named in a lawsuit. Only after settling the claim did the Town find its Hartford insurance policies and notify Hartford; this is not adequate notice. This meant that neither the Town nor Hartford was aware that Hartford was the Town's insurer at the time of the Hunt's Generator case. We will not fault Hartford for its lack of knowledge in this regard. It would be an onerous burden if the insurer (who may have thousands if not millions of insureds) is required to keep track of all of its insureds and to investigate any time it has notice of a lawsuit as to whether any of its insureds are parties.

¶ 14. Because we hold that Hartford did not have proper notice that the Town was a named defendant and desired a defense in the Hunt's Generator case, we do not need to address whether the Town violated the coverage conditions of its Hartford insurance policies by making voluntary payments and otherwise assuming obligations, incurring expenses, and settling the underlying case without the consent or authorization of Hartford.

By the Court. — Judgment affirmed.

       The lawsuit was Hunt's Generator Committee, et al. vs. Town of Mount Pleasant, et al., No. 95-C-0754.

       An assignee of a cause of action stands in the shoes of the assignor. Delta Group, Inc. v. DBI, Inc., 204 Wis. 2d 515, 521, 555 N.W.2d 162 (Ct. App. 1996).

       Here, we note that where notice is given more than one year after the time required by the policy, there is a rebuttable presumption of prejudice and the burden of proof shifts to the insured to prove that the insurer was not prejudiced by the untimely notice. Gerrard Realty Corp. v. Am. States Ins. Co., 89 Wis. 2d 130, 146-47, 277 N.W.2d 863 (1979). The Town's notice to Hartford was more than thirty months late and we hold it to be prejudicial under the facts of this case. We conclude that the Town failed to overcome the presumption of prejudice. We hold that Hartford was prejudiced because it could not seek an immediate determination of coverage, it could not participate in prelawsuit mediation, and it could not select defense counsel and control the defense. Here, we especially note that Hartford is prejudiced in that it may have selected the same counsel representing Crestview, which would have kept the attorney's fees much lower.
      Further, we believe that it is not necessary to discuss whether the Town's voluntary payments have an impact on coverage because the conclusion on notice disposes of this matter.


author:
FINE, J.
      SCHUDSON, J.

text:
    Milwaukee Transport Services, Inc., Petitioner-Respondent, v. Department of Workforce Development, Respondent-Co-appellant, Carsandra Griffin, Respondent-Appellant.
    Court of Appeals

      No. 00-0644.

      Submitted on briefs July 26, 2000.

    Decided January 17, 2001.

    2001 WI App 40
    (Also reported in 624 N.W.2d 895.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Barbara Zack Quindel and B. Michele Sumara of Perry, Lerner, Quindel & Saks, S.C., Milwaukee.
    On behalf of the respondent-co-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Richard Briles Moriarity, assistant attorney general.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of George K. Whyte, Jr. and Carmella A. Huser of Quarles & Brady, LLP, of Milwaukee.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

      Petition to review denied.

   FINE, J.

¶ 1. Carsandra Griffin and the Department of Workforce Development appeal from a judgment reversing a decision by the Department holding that Griffin did not have to take paid sick-leave that she had accrued as an employee of Milwaukee Transport Services, Inc., but, rather, could use instead unpaid medical-leave under the Wisconsin Family and Medical Leave Act, Wis. Stat. § 103.10. We reverse.

I.

• ¶ 2. This case was presented to the Department, the circuit court, and to us on an agreed statement of facts. Griffin is an employee of Transport Services, and has been for some fifteen years. In 1998, Griffin requested from Transport Services six days of unpaid medical leave under the Family and Medical Leave Act. At the time of her request, Griffin had accumulated seventeen days of paid sick-leave under Transport Services's labor agreement with Griffin's union. Although Griffin specifically declined to use the paid company-provided sick-leave for the requested six-day leave, Transport Services substituted the paid sick-leave under the labor agreement for five of the six days — under the agreement, the first day was not "compensable." This case concerns whether Transport Services could make Griffin use company-provided paid sick-leave rather than the unpaid leave she opted for under the Act.

II.

¶ 3. This appeal involves the application of a statute to uncontested facts. Ordinarily, this would present a pure question of law and be subject to our de novo review. See Thelen v. DHSS, 143 Wis. 2d 574, 577, 422 N.W.2d 146, 147 (Ct. App. 1988). Here, however, we are reviewing the decision of the Department of Workforce Development and not that of the circuit court, see Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155, 160 (Ct. App. 1993), and, we generally give to agency decisions at least some deference, see Richland School District v. DILHR, 174 Wis. 2d 878, 890-891, 498 N.W.2d 826, 830 (1993). Richland School District held that an employee could substitute in place of the unpaid leave mandated by the Family and Medical Leave Act paid-leave granted by an employer even though the employee did not qualify for the employer-granted paid-leave. Id., 174 Wis. 2d at 886-887, 888-890, 498 N.W.2d at 828-830. There are three levels of deference a court may give to decisions of administrative agencies.

First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review provides that if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.

Jicha v. DILHR, 169 Wis. 2d 284, 290-291, 485 N.W.2d 256, 258—259 (1992) (internal citations omitted). Griffin and the Department argue that we should give to the Department's interpretation of the Family and Medical Leave Act "great weight," as did Richland School District, see id., 174 Wis. 2d at 894, 498 N.W.2d at 832. Transport Services, on the other hand, urges that we review de novo the Department's interpretation of the statute because the Department's interpretation allegedly conflicts with two of the Department's regulations, Wis. Admin. Code §§ DWD 225.01(9) & (10), and because the Department has had no experience in applying those regulations. We do not decide which standard of review applies, however, because under any standard of review we conclude that the Act gives to Griffin the unambiguous right to substitute unpaid medical leave under the Act for the paid sick-leave offered by Transport Services. See MCI Telecommunications Corp. v. State, 209 Wis. 2d 310, 323, 562 N.W.2d 594, 600 (1997) (no need to assess deference due agency decision when agency determination is correct under any standard of review); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on narrowest possible ground).

¶ 4. Our decision is controlled by provisions in the Family and Medical Leave Act, WlS. STAT. § 103.10. Wisconsin Stat. § 103.10(4) establishes the general principle and provides, as material here:

(a) Subject to pars, (b) and (c), an employe who has a serious health condition which makes the employe unable to perform his or her employment duties may take medical leave for the period during which he or she is unable to perform those duties.
(b) No employe may take more than 2 weeks of medical leave during a 12-month period.

Wisconsin Stat. § 103.10(5) governs a covered employee's rights under the Act in connection with leave, paid or unpaid, that may be offered by the employer:

(a) This section does not entitle an employe to receive wages or salary while taking family leave or medical leave [mandated by the Act].
(b) An employe may substitute, for portions of family leave or medical leave [mandated by the Act], paid or unpaid leave of any other type provided by the employer.

¶ 5. In analyzing whether Transport Services could, force Griffin to take Transport Services's paid sick-leave rather than unpaid medical-leave under the Act, we must, of course, give effect to the legislature's intent. See Doe v. American National Red Cross, 176 Wis. 2d 610, 616, 500 N.W.2d 264, 266 (1993). We begin our analysis by looking at the statute to determine whether its language is clear. De Bruin v. State, 140 Wis. 2d 631, 635, 412 N.W.2d 130, 131 (Ct. App. 1987). If it is clear, we must apply its plain meaning. DNR v. Wisconsin Power & Light Co., 108 Wis. 2d 403,408, 321 N.W.2d 286, 288 (1982).

¶ 6. As we have seen, the provisions pertinent to this appeal grant to the covered employee the decision whether to take leave provided by the employer rather than leave mandated by the Act. WISCONSIN STAT. § 103.10(5)(b) provides: "An employe may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer." The word "may" gives the person to whom power is thereby delegated the option of doing something or not doing something. See Hansher v. Kaishian, 79 Wis. 2d 374, 387-388, 255 N.W.2d 564, 571-572 (1977) (word "may" is a delegation of discretion); Metropolitan Sewerage Comm'n. v. R.W. Constr., Inc., 72 Wis. 2d 365, 381, 241 N.W.2d 371, 381 (1976) (word "may" is a delegation of discretion); Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447-448. 531 N.W.2d 606, 613 (Ct. App. 1995) ("A general rule of statutory construction is that the word 'may' is construed as permissive or allowing discretion."). A regulation promulgated by the Department reiterates that the employee has "the option" to choose which leave to take, and prevents the employer from forcing the employee "to substitute any other paid or unpaid leave available to the employe for either family or medical leave under the act." WlS. Admin. CODE §§ DWD 225.03(1) & (3). These provisions read in full:

(1) At the option of the employe, an employe entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employe.
(3). The employer may not require an employe to substitute any other paid or unpaid leave available to the employe for either family or medical leave under the act.

The circuit court interpreted both WlS. STAT. § 103.10(5)(b) and §§ DWD 225.03(1) & (3) as encompassing only those situations where the employee, as in Richland School District, wants, in the circuit court's words, "to utilize a different type of leave such as vacation or personal days, provided by the employer, in place of the family or medical leave guaranteed by" the Family and Medical Leave Act. We need not decide, . however, whether the circuit court's narrow analysis of these provisions is correct because the two types of leave at issue here are not wholly congruent and are, therefore, different.

¶ 7. The Family and Medical Leave Act grants "medical leave" to employees who need time away from work because of "a serious health condition which makes the employe unable to perform his or her employment duties." WlS. STAT. § 103.10(4)(a). Sick-leave granted by Transport Services to its eligible employees, however, is not so limited. The Department found as a fact that is not disputed on this appeal that "sick-leave under [Transport Services's labor agreement with its employees' union] is available as a contractual right for sicknesses less serious than what constitutes a serious health condition under the [Family and Medical Leave Act]." Under the labor agreement, sick-leave is available to employees who have only an "illness" — that "illness" need not be what the Act describes as "a serious health condition which makes the employe unable to perform his or her employment duties." Thus, the unpaid "serious health condition" leave that Griffin sought under the Act, is different from the paid "illness"-leave Transport Services wanted her to deplete.

¶ 8. Transport Services contends that, under the circumstances here, Wis. Admin. Code §§ DWD 225.01(9) & (10) require that an employee's accrued company-leave be depleted on a day-to-day basis even if the employee opts to take leave under the Act. These provisions read in full:

(9) To the extent that an employer grants leave to an employe relating to the employe's own health in a manner which is no more restrictive than the leave available to that employe under s. 103.10 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employe under s. 103.10 (4), Stats.
(10) To the extent that leave granted by an employer to an employe is deemed by this subsection to be leave available to that employe under the act, the use of that leave granted by the employer shall be use of that leave available under the act.

(Footnote added.) These regulations do not carry the load Transport Services would have them bear.

¶ 9. If a regulation conflicts with a statute, the statute governs. See Village of Plain v. Harder, 268 Wis. 507, 511, 68 N.W.2d 47, 50 (1955). We should, if at all possible, construe regulations to harmonize them with any applicable statute. County of Milwaukee v. Superior of Wisconsin, Inc., 2000 WI App 75, ¶ 21, 234 Wis. 2d 218, 230, 610 N.W.2d 484, 490. For the reasons we explain below, Wis. Admin. Code §§ DWD 225.01(9) & (10) simply do not apply here.

¶ 10. As we have seen, Wis. Stat. § 103.10(4) permits a covered employee to take no more than two weeks of unpaid medical-leave — that is, leave for a disabling "serious health condition." Every covered employee is entitled to this irrespective of whether his or her employer also grants either paid or unpaid health-care leave. Under Wis. Admin. Code §§ DWD 225.01(9) & (10), if the employer gives to the employee leave that "is no more restrictive than the leave available" to the employee by virtue of the Act, then that employer-provided leave is "deemed to be leave available to that employe under" the Act, and, if so, "the use of that leave granted by the employer shall be use of that leave available under the act." (Emphasis added.) Thus, under subsections (9) and (10), had Griffin opted to take the leave provided by Transport Services, use of that leave would have also, simultaneously, depleted, on a day for day basis, leave granted by the Act, if, contrary to the finding of the Department, Transport Services's health-care leave was "no more restrictive" than medical leave under the Act. We need not decide whether this would contravene the statute, however, because this is not what Griffin did. Rather, Griffin opted to take unpaid leave under the Act, which WlS. STAT. § 103.10(4)(b) gives her every right to do. Stated another way, subsection (9)'s direction that "leave granted by the employer shall be deemed- to be leave available" to the employee under the Act — that is, uniting the two pools from which an employee may take leave — is only triggered by the prerequisite action under subsection (10). This happens only where the employee opts to first use leave granted by the employer, and only results in the depletion of leave mandated by the Act. Griffin did not opt to use leave granted by Transport Services, and moreover, Transport Services is not seeking to deplete Griffin's leave under the Act. Accordingly, subsections (9) and (10) do not apply here.

By the Court. — Judgment reversed.

SCHUDSON, J.

¶ 11. (concurring). Although I arrive at the majority's destination, my bus travels a more direct route.

¶ 12. Griffin is an employee covered by the Wisconsin Family and Medical Leave Act (WFMLA). She also is an employee covered under the labor agreement between her union and Milwaukee Transport Service (MTS). Under the WFMLA, Griffin is entitled to no more than two weeks of unpaid medical leave each year for "a serious health condition which makes the employee unable to perform . . . employment duties." Under her labor agreement, beginning with her second year of employment, Griffin is entitled to eight days of paid sick leave and the accruement of unused sick leave.

¶ 13. Due to a disabling illness, Griffin was unable to perform her duties on May 23, 24, 27, 28, 29 and 30, 1998. On May 27, she requested unpaid medical leave under the WFMLA. On her application for medical leave, Griffin responded "no" to the question asking whether she wanted to substitute accrued paid sick leave under her labor contract for unpaid medical leave under the WFMLA. Despite her negative response, MTS substituted paid sick leave under her labor contract for unpaid medical leave under the WFMLA, for the last five of the six days of her absence from work.

¶ 14. Apparently, Griffin was willing to forego paid sick leave under her labor contract in order to preserve such paid sick leave for possible future use, and for purposes beyond the "serious health condition" covered under the WFMLA. Her desire to do so was protected under WlS. Stat. § 103.10(5)(b), which states: "An employe[e] may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer."

¶ 15. The Department of Workforce Development regulations further clarify that Griffin had the option to do so. Wisconsin Administrative Code § DWD 225.03 provides:

Substituting leave. (1) At the option of the employe[e], an employe[e] entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave that has accrued to the employefe].
(3) The employer may not require an employe[e] to substitute any other paid or unpaid leave available to the employe[e] for either family or medical leave under the act.

And in Richland School District v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993), the supreme court further confirmed the employee's right to substitute, stating: "When the employer provides leave, the statute does not restrict or limit the employee's power of substitution; the decision to substitute is left to the employe[e]'s discretion. Nor does the statute state that the employe[e]'s right to substitute is limited by the terms of a collective bargaining agreement." Id. at 895.

¶ 16. Under the unambiguous words of the statute and regulation, and as further confirmed by the supreme court in Richland, Griffin alone had the option to substitute; she elected not to do so. MTS had no authority to override her decision. Thus, I agree with the majority's conclusion and respectfully concur.

       Wisconsin Stat. § 103.10(4)(c) is not material to our decision. In the interests of completeness, however, we set it out here. It reads: "An employe may schedule medical leave as medically necessary." The Wisconsin Statutes spell the word "employee" as "employe."

       The bracketed words are added because the Family and Medical Leave Act does not prevent an employer from offering paid family leave or paid medical leave. See Wis. Stat. § 103.10(2)(a) ("Nothing in this section prohibits an employer from providing employes with rights to family leave or medical leave which are more generous to the employe than the rights provided under this section.").

       This contrasts with the Federal Family and Medical Leave 1 Act, 29 U.S.C. §§ 2601 et seq., which permits the employer to force the employee to substitute company-offered leave for leave mandated by the federal act: "An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), or (C) of subsection (a)(1) of this section for any part of the 12-week period of such leave under such subsection." 29 U.S.C. § 2612(d)(2)(A) (emphasis added); "An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick-leave of the employee for leave provided under subpara-graph (C) or (D) of subsection (a)(1) of this section for any part of the 12-week period of such leave under such subsection, except that nothing in this subchapter shall require an employer to provide paid sick-leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave." 29 U.S.C. § 2612(d)(2)(B) (emphasis added). This forced-election provision does not trump WlS. STAT. § 103.10(5)(b) because states may grant to employees rights broader than those provided by the federal act: "Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act." 29 U.S.C. § 2651(b).

      As we have seen, WlS. Stat. § 103.10(4) grants medical leave under certain circumstances to those employees with "a serious health condition."

       Thus, we also do not decide whether the Department of Workforce Development correctly determined that Transport Services's medical leave was "more restrictive" than medical leave mandated by the Family and Medical Leave Act. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).

       Both parties give us extensive legislative history to WlS. ADMIN. Code §§ DWD 225.01(9) & (10). As with construing statutes, such history is only material to our analysis when the regulation is ambiguous. See Blumer v. Department of Health and Family Services, 2000 WI App 150, ¶ 17, 237 Wis. 2d 810, 821-822, 615 N.W.2d 647, 652 (construction of statutes). There is no ambiguity here. The regulations simply do not apply to what Transport Services wants to do, namely to deplete Griffin's accrued leave under the labor agreement (rather than, as provided by subsection (10), "leave available under the act") because Griffin opted to take leave mandated by the Act (rather than, as provided by subsection (10), "leave granted by the employer").


author: CANE, C.J.

text:
    In re the Marriage of: Terry J. Beaudoin, Petitioner, State of Wisconsin, Respondent, v. James S. Beaudoin, Respondent-Appellant.
    Court of Appeals

      No. 00-0825.

      Submitted on briefs December 4, 2000.

    Decided January 17, 2001.

    2001 WI App 42
    (Also reported in 625 N.W.2d 619.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Sharren B. Rose of Nelson & Schmeling of Green Bay.
    On behalf of the petitioner, the cause was submitted on the brief of George Burnett of Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay.

      Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. James Beaudoin appeals an order amending his divorce judgment that requires him to pay additional child support each month. James argues that the trial court erroneously concluded that his decreased exercise of physical placement rights was a substantial change in circumstances that would form the basis for modifying the amount of child support. James also argues that even if there was a substantial change in circumstances, the trial court erroneously exercised its discretion when it failed to consider several factors before increasing the amount of child support. We need not consider James' second argument because we conclude that there was no substantial change in circumstances and, accordingly, reverse the trial court's order.

¶ 2. James and Terry, parents of two minor children, divorced in September 1998. Pursuant to the terms of a marital settlement agreement, James was required to pay $410 each month in child support. The parties were to share physical placement, although the placement schedule provided Terry with a greater number of days each year. It is undisputed that within several months of the divorce, Terry and James voluntarily changed the placement schedule so that the children did not have to move between the two parents as often as originally agreed. The parties did not formally amend the divorce judgment to reflect those changes. Instead, the parties spoke monthly and set each month's schedule. Both parties kept track of their visits on calendars.

¶ 3. In the summer of 1999, Terry sought the assistance of the county child support office to increase the amount of James' monthly child support payments. The county filed a motion to modify the divorce judgment on Terry's behalf. The motion alleged that there had been a substantial change in circumstances because, although the divorce judgment provided that James was to have physical placement 46% of the time, for the first six months after the divorce he had placement only 31% of the time. James opposed the motion.

¶ 4. A hearing was held on December 6, 1999. There was uncontroverted testimony from the director of the county child support agency that in 1999, pursuant to the terms of the divorce judgment, James was to have 148 days of placement. The trial court found that for the twelve-month period from December 1998 through November 1999, James had placement for 144 days. The court concluded, "Based on the change in the placement schedule, as evidenced by the testimony of the parties and [Terry's] calendar, the Court finds that there has been a substantial change in circumstances and that [James] has the ability to pay $679.00 per month." The court denied James' motion for reconsideration. James now appeals.

Substantial Change in Circumstances

¶ 5. Modification of the amount of child support is committed to the sound discretion of the trial court. Beaupre v. Airriess, 208 Wis. 2d 238, 243, 560 N.W.2d 285 (Ct. App. 1997). We will not reverse a trial court's discretionary ruling where the trial court arrives at a conclusion that is one a reasonable judge could reach and consistent with applicable law. Id. However, if the discretionary determination rests upon an error of law, the decision is beyond the limits of the trial court's discretion. Id.

¶ 6. Our supreme court outlined the factors a trial court is to consider when determining whether child support should be modified in Miller v. Miller, 67 Wis. 2d 435, 442-43, 227 N.W.2d 626 (1975) (footnotes omitted):

An increase in support payments will be granted only where the party seeking such increase demonstrates that there has been a substantial or material change in the circumstances upon which the existing payments were predicated, and that such an increase is justified. The aging of the children, the increased cost of living, the ability of the noncustodial parent to pay, the marital status of the parents, and the financial status of the parents and their spouses, are among the relevant factors to be considered in determining whether a material change in the circumstances has occurred.

The court has further explained that the trial court's power to modify is not the power to grant a new trial or to re-try issues determined in the original judgment, but only to adapt the decree to some distinct and definite change in the financial circumstances of the parties or children. See Severson v. Severson, 71 Wis. 2d 382, 387, 238 N.W.2d 116 (1976).

¶ 7. The statute governing modifications to child custody orders similarly provides that a judgment providing for child support may be revised "only upon a finding of a substantial change in circumstances." WlS. Stat. § 767.32(l)(a). The statute lists four factors that may constitute a substantial change in circumstances: (1) a change in the payer's income, where the amount of child support is not expressed as a percentage of income; (2) a change in the child's needs; (3) a change in the payer's earning capacity; or (4) any other factor the court deems relevant. WlS. STAT. § 767.32(l)(c).

¶ 8. It is undisputed that the trial court based its conclusion that there was a substantial change in circumstances on WlS. Stat. § 767.32(l)(c)4. Furthermore, the trial court in its written decision explicitly stated that the change in . the placement schedule was the substantial change in circumstances. Because Terry refers us to no evidence regarding the financial consequences of James' failure to take physical placement for four of his 148 allocated days, we reverse the trial court's order.

¶ 9. In Peters v. Peters, 145 Wis. 2d 490, 492, 427 N.W.2d 149 (Ct. App. 1988), this court addressed a case where a father chose not to exercise visitation rights for two years. We held that because the record contained no evidence regarding the financial consequences of the father's failure to visit the children, the trial court had no facts before it from which it could conclude that a substantial change had occurred. See id. The same reasoning applies in this case.

¶ 10. Terry has not alleged or provided any evidence that there has been a "distinct and definite change in the financial circumstances of the parties or children." See Severson, 71 Wis. 2d at 387. Accordingly, as a matter of law there is no evidence of a substantial change in circumstances and the trial court erroneously exercised its discretion when it modified the divorce judgment to increase James' child support payments. See Peters, 145 Wis. 2d at 494.

¶ 11. Terry argues that "two strong reasons support the trial court's conclusion that a substantial change in circumstances occurred": (1) James "did not originally honor the [physical placement] agreement that he made"; and (2) "administrative regulations promulgated by the Department of Workforce Development declare so."

¶ 12. First, Terry cites no authority other than Wis. Stat. § 767.32(1)(c)4 for the proposition that one party's failure to fully exercise physical placement rights is itself a substantial change in circumstances. Under Terry's reasoning, a party who fails to exercise physical placement for even a single day could be required to pay additional child support. We reject this proposition. The change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. See Peters, 145 Wis. 2d at 491-92.

¶ 13. Second, Terry argues there was a substantial change in circumstances because Wisconsin's administrative rules governing child support payments "declare so." We disagree. There is nothing in Wis. Admin. Code § DWD 40 that addresses how a party can establish a substantial change in circumstances. Terry notes that Wis. Admin. Code § DWD 40.04(2) differentiates between a parent who is with the child for 40% or less of the child's time from a parent who is with the child for 41% or more of the child's time. The fact that James' placement may have decreased from 41% to 40% does not itself establish the substantial change in circumstances required by WlS. STAT. § 767.32(l)(c)4. Only after Terry establishes a financial change in circumstances will the guidelines established in § DWD 40 be relevant.

¶ 14. Not only do the provisions of Wis. Admin. Code § DWD 40 fail to establish a substantial change in circumstances, the fact that § DWD 40 became effective after the Beaudoins' divorce does not establish a substantial change in circumstances. See Beaupre, 208 Wis. 2d at 241 ("[A] change in an administrative regulation alone does not constitute a substantial change in circumstances allowing modification of child support."). In Beaupre, we held that an individual seeking to modify support must show a change in the factual circumstances of the parties, not simply an administrative rule change, before child support can be modified. Id. at 244. Because Terry has failed to establish a change in the financial circumstances of the parties, there was no basis to modify the divorce judgment.

By the Court. — Order reversed.

       The agreement provided that the child support would be $300 per month until the marital home was sold. After this occurred, child support was raised to $410. Terry seeks an increase from the $410 child support amount.

       The director testified that she applied the physical placement agreement to the calendar year 1999. She also indicated that the number of days for each party could vary slightly each year, depending on whether holidays fell on days of the week normally assigned to the other party.

       All refeences to the Wisconsin Statutes are to the 1999-2000 version.

       Application of Terry's reasoning in this case would be especially troublesome because there is undisputed evidence that Terry and James agreed to orally amend their placement schedule to accommodate the children's needs.