author: DEININGER, J.

text:
    Dairyland Greyhound Park, Inc., Plaintiff-Appellant, v. Scott McCallum, in his official capacity as Governor of the State of Wisconsin, and George Lightbourn, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants-Respondents.

    Court of Appeals

      No. 02-1204.

      Submitted on briefs August 30, 2002.

    Decided September 19, 2002.

    2002 WI App 259
    (Also reported in 655 N.W.2d 474.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ronald R. Ragatz, Peter A. Peshek and Mindy Rowland Buenger of DeWitt Ross & Stevens S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of John S. Greene and Thomas C. Bellavia, assistant attorney generals, James

      E. Doyle, attorney general, and Raymond P. Taffora of Michael, Best & Friedrich LLP, Madison.
    A nonparty brief was filed by Carol J. Brown of Brown & LaCounte, LLP, Madison, Douglas B.L. En-dreson and William R. Perry of Sonosky, Chambers, Sachse, Endreson & Perry, Washington, D.C., Howard Bichler, Hertel, Jennifer L. Nutt Carleton and Rory E. Dilweg of Oneida Law Office, Oneida, Paul Stenzel and Douglas William Huck, Bowler, Sheila D. Corbine, Black River Falls, Kevin L. Osterbauer, Odanah, Larry Leventhal of Larry Leventhal & Associates, Minneapolis, MN., Kris M. Goodwill, Hayward, Jeffery A. Crawford, Milwaukee, Eric N. Dahlstrom of Rohnstein, Do-natelli, Hughes, Dahlstrom, Schoenburg & Frye, LLP, Phoenix, AZ., Andrew S. Caulum of Caulum Law Office, S.C., Madison, and David M. Ujke, Bayfield on behalf of the St. Croix Chippewa Indians of Wisconsin, Lac du Flambeau Band of Lake Superior Chippewa Indians, Oneida Tribe of Indians of Wisconsin, Forest County Potawatomi Community of Wisconsin, Ho-Chunk Nation, Stockbridge-Munsee Community, Sokaogon Chippewa Community (Mole Lake Band of Lake Superior Chippewa Indians), Bad River Band of the Lake Superior Tribe of Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin, and Red Cliff Band of Lake Superior Chippewa Indians.
    A nonparty brief was filed by Alexis H. Johnson, Show Low, AZ and Michael D. Dean, Waukesha, for Kenosha Coalition Against Legalized Gambling.
    A nonparty brief was filed by Paul G. Kent of Davis & Kuelthau, S.C., Madison, for Village of Hobart and Brown County.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.

       Petition to review denied 11-12-02.

   DEININGER, J.

¶ 1. Dairyland Greyhound Park, Inc., appeals an order dismissing its complaint against Governor McCallum for failure to join an indispensable party. Dairyland's action seeks to enjoin the Governor from renewing the state's gaming compacts with Indian tribes having reservations or other land in Wisconsin. The circuit court concluded that the tribes are "necessary parties" to the litigation under Wis. Stat. § 803.03(1) (1999-2000), and because the tribes cannot be joined as parties, that Dairyland's action should be dismissed pursuant to § 803.03(3). We conclude that the circuit court erred in determining that the tribes are indispensable parties in whose absence the action should not proceed. We therefore reverse the order dismissing the action and remand for further proceedings on Dairyland's complaint.

BACKGROUND

¶ 2. The following background information is taken, in some instances verbatim, from the Legislative Reference Bureau's Research Bulletin 00-1, The Evolution of Legalized Gambling in Wisconsin (May 2000) (cited in this opinion as "LRB").

¶ 3. The Wisconsin Constitution contained "an absolute . . . prohibition of any gaming activity" for the first one hundred seventeen years of the state's existence. LRB at 1. Beginning in 1965, however, constitutional amendments were ratified permitting, in succession, sweepstakes and other promotional contests, charitable bingo and raffles, and in 1987, pari-mutuel on-track betting on racing and a state lottery. Id. The confluence of the state lottery amendment and federal law relating to gaming activities conducted by Indian tribes has resulted in the present circumstances where "Wisconsin's 11 Indian tribes or bands currently operate 16 major casinos throughout the state, which offer Blackjack, electronic gambling machines, and pull-tabs" under compacts negotiated with the state. Id. at 20.

¶ 4. Because neither the circuit court's ruling nor ours addresses the merits of Dairyland's claim, it is not necessary to discuss in detail the legal underpinnings of Wisconsin's Indian gaming compacts. It is sufficient to note that federal statutes and case law generally allow tribes to conduct any form of gambling on their lands that a given state permits, free, however, of regulation by the state except as may be negotiated in state-tribal compacts. See LRB at 20-22; see also Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992); 25 U.S.C. §§2701-21 (2002) (The "Indian Gaming Regulatory Act"); 80 Op. Att'y Gen. 53 (1991).

¶ 5. By June 1992, Wisconsin had entered into seven-year gaming compacts with eleven tribes, all of which have been extended for five-year terms expiring in 2003 and 2004. LRB at 23. The compacts all contain renewal clauses which read substantially as follows:

The duration of this Compact shall... be automatically extended for terms of five years, unless either party serves written notice of nonrenewal on the other party not less than one hundred eighty days prior to the expiration of the original term of this Compact or any extension thereof.

Dairyland seeks an injunction prohibiting the Governor "from entering into any new, modified, extended or renewed gaming compacts with any Indian tribe purporting to allow casino gambling and requiring [him] to issue timely notice of nonrenewal of each compact." Dairyland's principal legal theory is that the ratification in 1993 of yet another constitutional amendment deprives the Governor of whatever authority may have once existed for permitting the tribes to conduct casino-type gaming in Wisconsin under the compacts.

¶ 6. The Governor moved to dismiss the action for failure to join indispensable parties — "the eleven Indian tribes who are parties to the gaming compacts with the State." The court granted the Governor's motion and Dairyland appeals.

ANALYSIS

¶ 7. We emphasize at the outset that the merits of Dairyland's suit for an injunction are not before us in this appeal. We express no view regarding whether, under the present state of the law on gambling in Wisconsin, and under applicable federal statutes and precedents, the Governor should be enjoined from permitting Wisconsin's Indian gaming compacts to be extended beyond their current expiration dates. The only question we decide is whether Dairyland's claim for that relief may be heard and resolved in a Wisconsin court, despite the inability of Dairyland to join the tribes as parties to its lawsuit.

¶ 8. The procedural rule at the center of the issues we address is Wis. Stat. § 803.03, which provides in relevant part as follows:

(1) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
(a) In the person's absence complete relief cannot be accorded among those already parties; or
(b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
1. As a practical matter impair or impede the person's ability to protect that interest; or
2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.
(3) Determination by couRt whenever joinder not feasible. If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1)... cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
(a) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
(b) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
(c) Whether a judgment rendered in the person's absence will be adequate; and
(d) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

¶ 9. As the statute's language and structure suggest, the "indispensable party" inquiry is in two parts. We must first determine if the tribes are "necessary" parties for one of the three reasons set forth in Wis. Stat. § 803.03(1). Dairyland asserts that the tribes meet none of the requirements for being a "necessary" party to the present litigation. If that is true, they cannot be deemed "indispensable" under § 803.03(3), and our inquiry will be at an end. See Makah Indian Tribe v. Verity, 910 F.2d 555, 559 (9th Cir. 1990). If we conclude, however, that the circuit correctly declared the tribes necessary parties under § 803.03(1), we must then consider whether the circuit court also correctly determined that, "in equity and good conscience," the action should not proceed in the absence of the tribes, as provided in § 803.03(3).

¶ 10. Our first task is to ascertain the proper standard for our review of the circuit court's determination that, because the tribes are parties to the gaming compacts which Dairyland seeks to have nonre-newed, the tribes are necessary parties to this litigation under Wis. Stat. § 803.03(1). We have indicated on at least one occasion that our review of this determination is of the circuit court's exercise of discretion. See Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis. 2d 31, 44, 465 N.W.2d 266 (Ct. App. 1990) ("We conclude the trial court did not abuse its discretion by refusing to join [named individuals] as necessary parties under sec. 803.03(1), Stats."). More recently, however, the supreme court has noted that the necessary party inquiry under § 803.03(l)(b), 1 (whether a person who "claims an interest relating to the subject of the action... is so situated that the disposition in the person's absence may ... [a] s a practical matter impair or impede the person's ability to protect that interest") is the equivalent of the inquiry under Wis. Stat. § 803.09(1) to determine whether a person is entitled to intervene in an action "as a matter of right." City of Madison v. WERC, 2000 WI 39, ¶ 11 n.8, 234 Wis. 2d 550, 610 N.W.2d 94. Whether a party is entitled to intervene in an action as a matter of right under § 803.09(1) is a question of law which is decided de novo on appeal. Armada Broad., Inc. v. Stirn, 183 Wis. 2d 463, 470, 516 N.W.2d 357 (1994).

¶ 11. The Governor's principal argument in favor of affirming the circuit court's determination that the tribes are necessary parties is that the tribes' ability to protect their substantial financial interest in the continuation of the gaming compacts would be impaired or impeded if they were not parties to this action. The Governor thus asserts that the tribes claim an interest in the subject of this litigation that would entitle them to intervene as a matter of right were they to seek to do so. He therefore concedes that the question of whether the tribes' claimed interest is sufficient to render them necessary parties under Wis. Stat. § 803.03(l)(b)l is a question of law which we should decide de novo. We do so in the paragraphs which follow.

¶ 12. Dairyland does not take issue with the Governor's assertions that the tribes garner substantial revenues and profits from the casino gambling operations they conduct pursuant to the compacts, and that the economic impact on the tribes of termination or nonrenewal of the compacts, in the circuit court's words, would be "catastrophic." Rather, Dairyland argues that the tribes' interest in this litigation is insufficient to deem them necessary parties because the compacts do not give them a "legally protected" or "enforceable" right to renewal inasmuch as the Governor has, in Dairyland's view, "an unfettered right to nonrenew" the compacts. The Governor concedes that the compact provisions "may not have entirely guaranteed renewal of the compacts."

¶ 13. In a recent case implicating Wis. Stat. § 803.03(1), we concluded that a town that was engaged in litigation seeking a constructive trust over certain real estate, having filed a lis pendens against the property, claimed a sufficient interest under the statute to remain a party in a foreclosure action involving the parcel even though the town had not yet obtained a judgment establishing the trust. Ross v. Specialty Risk Consultants, Inc., 2000 WI App 258, ¶ 27, 240 Wis. 2d 23, 621 N.W.2d 669. We further concluded that the "disposition of the mortgage foreclosure in [the town's] absence would, as a practical matter, impede the Town's ability to protect that interest." Id. Absent from our discussion or conclusion was any mention of a requirement that the town have a "legal" or "legally protected" interest in the subject of the foreclosure action.

¶ 14. We agree with Dairyland that Wisconsin case law provides little direct guidance on the question of what type of interest a potential party must claim in order to be deemed a necessary party under Wis. Stat. § 803.03(l)(b). However, given the similarity of the necessary party inquiry in this cáse to the intervention as of right inquiry (see ¶ 10 and footnote 6), we conclude that we may look for guidance to Wisconsin precedents discussing the nature of the interest required for intervention as a matter of right. We further conclude that the required interest is defined broadly in Wisconsin law, and that it goes well beyond the concept of a "legally protected" interest, as Dairyland argues.

¶ 15. The "interest" test applicable in Wisconsin to intervention of right inquiries involves a "pragmatic approach," one that is "'primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.'" Armada Broad., Inc., 183 Wis. 2d at 472 (citation omitted). We have previously concluded that "under the practical, non-technical approach" espoused by the supreme court in Armada, "there is no requirement that the potential intervenor's interest be 'judicially enforceable' in a separate proceeding." Wolff v. Town of Jamestown, 229 Wis. 2d 738, 744, 601 N.W.2d 301 (Ct. App. 1999). The relevant inquiry in Wisconsin is thus not whether a prospective party has a legal or legally protected interest in the subject of an action, but whether the person or entity has " 'an interest of such direct and immediate character that the [prospective party] will either gain or lose by the direct operation of the judgment.'" City of Madison, 2000 WI 39, ¶ 11 n.9 (citation omitted).

¶ 16. We thus conclude that it is not necessary for the tribes to have a legally enforceable right to continue conducting casino gambling in order for them to have a sufficient interest in this litigation to be deemed necessary parties. The tribes bargained for (and obtained) provisions "automatically" extending the compacts, unless the Governor gives timely notice of nonrenewal. Dairyland seeks in this lawsuit to deprive the Governor of the ability to exercise his discretion or political judgment regarding the extension of the current compacts. We agree with the Governor that because a judgment could be entered enjoining him from permitting the compacts to be extended under any circumstances, the tribes " 'will either gain or lose by the direct operation of the judgment.'" Id. (citation omitted). The tribes' interest in preserving their opportunity to convince the Governor of the wisdom of permitting the compacts to be extended beyond their current expiration dates is therefore a sufficient interest to render the tribes necessary parties under Wis. Stat. § 803.03(l)(b)l.

¶ 17. We must next inquire whether the tribes are "so situated that the disposition of the action in the [tribes]' absence may ... [a]s a practical matter impair or impede [their] ability to protect that interest." Wis. Stat. § 803.03(l)(b), 1. Dairyland asserts that the tribes cannot meet this test because (1) the Governor can adequately protect the tribes' interests, and (2) the tribes' participation in the litigation as amicus curaie ensures that their concerns will be heard. We disagree on both points.

¶ 18. Although it is true that the Governor may be as interested as the tribes are in protecting his ability to exercise discretion and political judgment regarding the extension of the current Indian gaming compacts, there is little question that the financial consequences of not renewing the compacts would fall disproportionately on the tribes. See Wolff, 229 Wis. 2d at 749 (concluding that the fact that a potential party has "more at stake" than an existing party weighs in favor of a determination that the existing party cannot adequately represent the potential party's interest). Moreover, even though the Governor and the tribes may currently be aligned in their desire to defeat Dairyland's claims, they have historically exhibited significant differences over issues relating to the scope of Indian gaming in Wisconsin. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992). Finally, we observe that the tribes may be in a much better position than the Governor to advocate the supremacy of federal law in constraining a state's ability to curtail Indian gaming once compacts have been entered into. That is, the tribes may wish to take positions which the Governor might dispute, or at the very least, be reluctant to espouse. See Wolff, 229 Wis. 2d at 748-49 (noting that interests "need not be wholly adverse" to negate adequate representation, it being sufficient that a potential party be in a position to more vigorously advocate a certain result).

¶ 19. Thus, the presence of the Governor as a party in this action does not permit us to conclude that, as a practical matter, the tribes' ability to protect their interests in having the compacts extended is not impaired or impeded by their absence. Similarly, the tribes' participation as amicus curaie perhaps lessens but does not remove the disability they suffer from not being parties. Although amicus status may give the tribes a voice on certain issues at certain times, it does not secure to them the procedural rights and protections of a party, for example, to engage in discovery, to file dispositive motions, or to appeal an adverse decision. See Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 775 (D.C. Cir. 1986) ("Being party to a suit carries with it significant advantages beyond the amicus' opportunities, not the least of which is the ability to appeal an adverse judgment.") In short, we conclude that if a person otherwise meets the requirements for being a necessary party under Wis. Stat. § 803.03(1), granting that person amicus status cannot obviate the statute's requirement that the person be joined as a party in the action "if feasible."

¶ 20. Given that the tribes cannot be made parties, the final question to be resolved is whether, "in equity and good conscience the action should proceed among the parties" now before the court, or alternatively, whether the action should be dismissed, as the circuit court concluded. Wis. Stat. § 803.03(3). Dairyland cites National Operating, L.P. v. Mutual Life Insurance Co. of New York, 2001 WI 87, ¶ 28, 244 Wis. 2d 839, 630 N.W.2d 116, for the proposition that our review of a circuit court's action on a motion to dismiss generally presents a question of law which we review de novo. The Governor, however, asserts that no Wisconsin case has directly addressed the proper standard for appellate review of a circuit court's determination that a necessary party either is or is not "indispensable" under § 803.03(3). The Governor asks us to follow federal court decisions holding that appellate courts must review determinations under Fed. R. Civ. E 19(b) (the federal counterpart to § 803.03(3)), for an erroneous exercise of trial court discretion.

¶ 21. We have been unable to locate Wisconsin precedent on the issue of the proper standard of review to be applied to determinations under Wis. Stat. § 803.03(3). The language of the rule ("whether in equity and good conscience the action should proceed," § 803.03(3)) suggests a discretionary weighing of factors, and some federal courts have concluded that appellate review is of the district court's discretion. See, e.g., Davis v. United States, 192 F.3d 951, 957 (10th Cir. 1999) ("This court reviews ['necessary and/or indispensable' party] determinations under an abuse of discretion standard."); Makah Indian Tribe, 910 F.2d at 560 ("We conclude that the district court's determination that the absent tribes are indispensible to the Makah's claim for reallocation was not an abuse of discretion."). The Seventh Circuit, however, has expressly declined to choose between de novo review and "an abuse-of-discretion standard" when reviewing a district court's "Rule 19 dismissal." United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 478 (7th Cir. 1996).

¶ 22. We also observe that even though it espouses an abuse of discretion standard of review, the Tenth Circuit includes the caveat that "[underlying legal conclusions supporting Rule 19 determinations, however, are reviewed de novo." Davis, 192 F.3d at 957. Moreover, the same court has concluded that it may raise (and decide) the issue of a party's indispensability sua sponte, even though the issue was not raised by any party in the trial court or on appeal. Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 892 (10th Cir. 1989). The California Court of Appeals has adopted the federal "abuse of discretion" standard in reviewing a determination under the state's counterpart rule. See People ex rel. Lungren v. Community Redevelopment Agency for the City of Palm Springs, 65 Cal. Rptr. 2d 786, 790-91 (Cal. Ct. App. 1997). The New York Supreme Court, Appellate Division, however, while nominally espousing a standard for review of trial court discretion, appears to have decided de novo the issue of the indispensability of Indian tribes in an action very similar to this one. See Saratoga County Chamber of Commerce, Inc. v. Pataki, 275 A.D.2d 145, 151 (N.Y. App. Div. 2000) ("In our view, a balanced consideration of these factors militates against the invocation of the harsh and rarely used remedy of dismissing the complaint for nonjoinder of an indispensable party." (emphasis added)).

¶ 23. The Wisconsin Supreme Court has explained that different standards of review may be implicated by each of several determinations a circuit court must make in ruling on a motion to dismiss, or even by different factors to be considered within a single determination. See Paige K.B. v. Steven G.B., 226 Wis. 2d 210, ¶¶ 22-23, 594 N.W.2d 370 (1999). We are thus not persuaded that our only option is to review the circuit court's determination that the tribes are indispensable parties for an erroneous exercise of discretion.

¶ 24. The four factors which a court must consider under Wis. Stat. § 803.03(3) present the following questions: Will the tribes be prejudiced by the rendering of a judgment in this action in their absence? Can any such prejudice be lessened or avoided by protective provisions in the judgment or other measures? Will a judgment in the absence of the tribes be "adequate" with respect to the Governor and Dairyland? Will Dairyland have an adequate remedy if this action is dismissed for nonjoinder? We conclude that each of these questions is one of law, which we may decide de novo. We further conclude that we are as well situated as the circuit court to weigh and balance the factors in this case, given that the circuit court has not conducted a trial or other evidentiary proceedings. The circuit court did not acquire any "sense" or "feel" for the equities in this case that we cannot acquire equally as well from reviewing the parties' submissions and arguments.

¶ 25. There may be occasions on which the determination of whether a party is indispensable under Wis. Stat. § 803.03(3) will involve findings on disputed issues of fact. The court which makes those findings may then be in a better position than a reviewing court to weigh and balance the relevant factors, and a circuit court's determination may therefore be entitled to deference from this court. See, e.g., Davis, 192 F.3d at 961 (declining "to undertake the Rule 19(b) analysis in the first instance," and remanding for factual findings and a "reviewable determination" by the district court). This is not such a case, however, and we therefore proceed to a de novo consideration of whether, on the record before us, "in equity and good conscience the action should proceed" in the absence of the tribes. We conclude that it should.

¶ 26. The circuit court seemingly gave undue, if not controlling, weight to "the importance of preserving the sovereign nation status of the Tribes." It concluded that the controlling factor in its determination must be "the economic interest of the Tribes in the continuation of the revenue that they derive" from gambling operations under the compacts, "and their inability to protect themselves from the prejudice inherent in a future judgment in [Dairyland's] favor." We conclude, however, that the court erred in placing controlling weight on the "prejudice" factor under Wis. Stat. § 803.03(3)(a), without giving proper consideration to whether the remaining factors might outweigh the prejudice inherent to the tribes if Dairyland were to prevail.

¶ 27. The significant interest of the tribes in the outcome of this litigation, and their inability to protect that interest if not made parties, are questions which must be decided in the Governor's favor before the prejudice factor under Wis. Stat. § 803.03(3)(a) is considered. Thus, once the tribes have been deemed necessary parties under § 803.03(1)(b)l, it is almost a foregone conclusion that the outcome of the litigation might be prejudicial to the tribes if rendered in their absence. If the prejudice factor controls the indispensable party determination, there would be little point in conducting a separate indispensable party inquiry. The rule could simply say that a party is both necessary and indispensable whenever the requirements of § 803.03(l)(b)l are satisfied, but that is not what the rule provides.

¶ 28. Thus, we conclude that the prejudice factor weighs strongly in favor of a determination that the action should not proceed in the absence of the tribes, but it is not the only factor we must consider, and it is not necessarily the controlling factor.

¶ 29. The circuit court concluded that the second factor (whether "by protective provisions in the judgment, by shaping of relief, or other measures, the prejudice can be lessened or avoided," Wis. Stat. § 803.03(3)(b)) also weighed in favor of the indispensability of the tribes because the case is of the "all or nothing" variety. That is, the Governor will either be enjoined from permitting the compacts to renew, or he will not be. Neither party disputes the point, and we move on to the third factor.

¶ 30. We must next consider whether a judgment entered in this action, absent the participation of the tribes, will be "adequate." Wis. Stat. § 803.03(3)(c). In other words, can Dairyland obtain the relief it is seeking in the absence of the tribes? We see no reason why a judgment in this action would not be adequate to resolve the dispute between Dairyland and the Governor regarding the Governor's authority or lack thereof to extend or renew the compacts. We acknowledge that if Dairyland were to prevail in obtaining an injunction in this action, the tribes might not be precluded from seeking to have the injunction invalidated in a federal court action. The fact that a judgment in this action might be subject to collateral attack, however, does not render it inadequate. We note that the Governor makes no argument that this factor does not weigh in Dairyland's favor in the indispensability determination, but asserts only that the circuit court correctly gave the factor little weight.

¶ 31. The final factor is whether Dairyland will have an adequate remedy if this action is dismissed for nonjoinder of the tribes. The Governor does not dispute that dismissal of this action will leave Dairyland "without a judicial remedy to challenge the provisions of gaming compacts," but contends that this factor is vastly outweighed by the prejudice to the tribes in proceeding without them, as the circuit court concluded. Dairyland, of course, argues just the opposite, and adds that the interests of the public in having the issues it raises resolved tips the scales in favor of permitting the action to continue. We agree with Dairy-land.

¶ 32. The parties cite and discuss a number of cases from other jurisdictions having differing outcomes on the question of whether Indian tribes are indispensable parties to various actions in which it is claimed they have an interest. We find persuasive the reasoning of two state courts which each concluded Indian tribes were not indispensable parties in light of facts and circumstances closely analogous to those now before us.

¶ 33. The court in People ex rel. Lungren v. Community Redevelopment Agency for the City of Palm Springs, 65 Cal. Rptr. 2d 786 (Cal. Ct. App. 1997), gave considerable weight to the interests of the public in having decided the question of whether a public agency had exceeded its lawful authority in transferring public land to an Indian tribe for construction of a casino. Id. at 794-95 ("If it is established that the law of California does not permit a court to hear a challenge to the actions of the Agency in the present case because of an inability to join the Tribe in the suit, the effect will be to immunize any local entity from. court review of transfers of publicly owned real property to Indian tribes."). The court also gave significant weight to the fourth factor, the lack of remedy available to the plaintiff attorney general if the action were not allowed to proceed. Id. at 796.

¶ 34. These same considerations also heavily influenced the New York court in Saratoga County Chamber of Commerce, Inc. v. Pataki, 275 A.D.2d 145 (N.Y. App. Div. 2000), where the plaintiffs sought a declaration that (1) the Governor lacked authority to execute Indian gaming compacts, and (2) the gambling permitted under them was prohibited by New York statutes and the state's constitution. Id. at 150. In applying its joinder rule, which differently enumerates but incorporates in substance the Wis. Stat. § 803.03(3) factors, the court emphasized the lack of an adequate remedy if the suit were dismissed: "[Dismissal of the action based upon plaintiffs' inability to obtain jurisdiction over the Tribe would have the effect of absolutely barring resolution of the important and far-reaching issues raised in the complaints." Id. at 151-52.

¶ 35. The present litigation does not simply seek to resolve a dispute among private actors. Dairyland's lawsuit asserts that the Wisconsin Constitution, as amended in 1993, precludes the Governor from extending or renewing Indian gaming compacts which allow casino gambling in Wisconsin. There can be little question that the citizens of Wisconsin have a considerable interest in ensuring that state officials act in accordance with the peoples' will as expressed in the state constitution. If this action is dismissed because the tribes cannot be joined as parties, not only will Dairy-land have no adequate remedy, but an important legal issue having significant public policy implications will evade resolution. We conclude that, in equity and good conscience, this action, like those we have cited in California and New York, must be allowed to proceed in the absence of the tribes, notwithstanding the potential prejudice to their interests.

CONCLUSION

¶ 36. For the reasons discussed aboye, we reverse the appealed order and remand for further proceedings on Dairyland's complaint.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. The text of Wis. Stat. § 803.03(1) and (3) is quoted below in ¶ 8 of this opinion.

       The legislature has authorized the Governor to negotiate and enter into gaming compacts. See Wis. Stat. § 14.035. Dairy-land also named the secretary of the Department of Administration as a defendant because of the duties delegated to that office under Wis. Stat. § 569.02 (e.g., coordination of Indian gaming regulatory activities; functioning as a liaison between Indians, the public, and the state; assisting the Governor in determining the types of gaming to be conducted under the compacts). We will refer to the defendants-respondents collectively as the Governor.

       The 1993 amendment clarified that "all forms of gambling are prohibited except bingo, raffles, pari-mutuel on-track betting and the current state-run lottery." LRB at 11.

       Ten of the eleven tribes filed an amicus curaie brief in the trial' court supporting the Governor's motion. Other entities, being charities who had "received support" from one of the tribes that "derived from" its gaming revenues, also filed amicus briefs in support of the motion. Filing amicus briefs in this court were the following: ten tribes having compacts with the state, who support the Governor's position; the Kenosha Coalition Against Legalized Gambling and the Village of Hobart and Brown County, who join Dairyland in seeking a reversal.

       Dairyland does not dispute that the tribes "cannot be made a party" to this action, which is a prerequisite for dismissal of the action under Wis. Stat. § 803.03(3). We accept the concession without further discussion. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (Indian tribes possess "the common-law immunity from suit traditionally enjoyed by sovereign powers.").

       The relevant language in Wis. Stat. § 803.09(1) is virtually identical to Wis. Stat. § 803.03(1)(b)1: "Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest ...." Wis. Stat. § 803.09(1) (emphasis added). We note, however, that § 803.03(l)(b)l does not expressly include a consideration of whether the prospective party's "interest is adequately represented by existing parties," as does § 803.09(1). The Governor and Dairyland nonetheless discuss (and dispute) whether the interest of the tribes is adequately represented by the Governor in this case. We agree that it is a proper factor to consider under Wis. Stat. § 803.03, either when determining if the tribes' ability to protebt their interest would "as a practical matter" be impaired or impeded if not .made parties under subsection (1), or when considering whether the tribes would be prejudiced if the action were to proceed in their absence under subsection (3). We address the question below, after our explanation of why the tribes' claimed interest in the subject of this litigation is sufficient to render them necessary parties.

       We did employ the term "legal interest" in Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis. 2d 31, 43, 465 N.W.2d 266 (Ct. App. 1990) ("[T]he Al Yasiris have no legal interest in this action. See sec. 803.03(1)(b)."). In our decision we affirmed the circuit court's refusal to join the subjects of an investigation as necessary parties in an open records mandamus action seeking access to records of the investigation. In doing so, we relied on the fact that !'[o]nly the records custodian, not individuals who are the subjects of public records, may seek to prevent inspection." Id. (citing State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 558, 334 N.W.2d 252 (1983)). The supreme court has since clarified, however, that Bilder does not stand for the proposition that the interest of subjects of public records in a mandamus action seeking access to the records is insufficient to allow the subjects to intervene as of right under Wis. Stat. § 803.09(1). Armada Broad., Inc. v. Stirn, 183 Wis. 2d 463, 472-73, 516 N.W.2d 357 (1994). It thus appears that our analysis in Wisconsin State Journal may no longer be good law. See Armada, 183 Wis. 2d at 472-73 ("The court of appeals denied [the subject of requested records]'s motion on the basis that [he] lacked a legally protected interest in intervening.... The court of appeals' reliance on this [quoted] language in Bilder was misplaced.... [The statement in Bilder that 'it is the legal custodian of the record, not the citizen, who has the right to have the record closed'] has no affect [sic] upon our decision regarding intervention.").

       We note, however, that even if a notice of nonrenewal is given by either party, the compacts provide that a tribe may request to negotiate a successor compact, and the State is obligated to negotiate "in good faith concerning the terms of a successor compact."

       The state is projected to receive "payments averaging $23.7 million annually" from the tribes pursuant to the current compacts, while "it has been estimated that statewide the tribes realize total casino profits of about $300 million per year." LRB at 24.

       Thus, even if we were reviewing the circuit court's determination under a discretionary standard, we would conclude the court erred in its interpretation or application of the law, thereby engaging in an erroneous exercise of discretion. See, e.g., Davis v. United States, 192 F.3d 951, 961 (10th Cir. 1999) (concluding that district court "erroneously interpreted" precedent as mandating conclusion that tribe was indispensable, and thus abused its discretion in dismissing claim).

       Some federal decisions have emphasized the need to give significant weight to protecting the sovereign immunity of Indian tribes when conducting the indispensable party analysis. "When ... a necessary party ... is immune from suit, 'there is very little room for balancing of other factors'... because immunity' "may be viewed as one of those interests 'compelling by themselves."'" Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir. 1989) (citation omitted). Other cases, however, make it clear that tribal immunity from suit it is not a trumping factor, such that no litigation in which an Indian tribe may be interested can be allowed to proceed in its absence. See Davis, 192 F.3d at 959-60 (clarifying that court did not hold in Enterprise Mgmt. Consultants that tribal immunity eliminates the need to weigh the four factors under the indispensable party rule).

       We have considered above, and rejected, Dairyland's claim that the tribes would not be prejudiced by a judgment entered in their absence because the Governor adequately represents the interests of the tribes. (See ¶ 18 and footnote 6.)

       Tribe not indispensable: Connecticut ex rel. Blumenthal v. Babbit, 899 F. Supp. 80 (D. Conn. 1995); State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995); Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10th Cir. 2001), cert. denied, 534 U.S. 1078 (2002). Tribe indispensable: Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765 (D.C. Cir. 1986); Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992); Enterprise Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890 (10th Cir. 1989); Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990).

       We agree with Dairyland that it makes no difference whether the interest of the public in having an issue resolved is considered in conjunction with one or more of the enumerated factors, or whether it is deemed a factor (the "public rights exception") to be considered in addition to the nonexclusive factors set out in Wis. Stat. § 803.03(3). See, e.g., Makah Indian Tribe, 910 F.2d at 559 n.6 (9th Cir. 1990) (discussing "public rights exception").


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    In re the Commitment of Richard A. Brown, Jr.: State of Wisconsin, Petitioner-Respondent, v. Richard A. Brown, Jr., Respondent-Appellant.

    Court of Appeals

      No. 99-0635.

      Submitted on briefs August 26, 2002.

    Decided September 24, 2002.

    2002 WI App 260
    (Also reported in 655 N.W.2d 157.)

      . On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender.
    On behalf of the petitioner-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Wedemeyer, PJ, Schudson and Curley, JJ.

       Petition to review denied 12-10-02.

   SCHUDSON, J.

¶ 1. Richard A. Brown, Jr., appeals from the December 11, 1998 judgment and order for commitment, following a trial in which the jury found that he was a sexually violent person, and from the January 12, 2000 order denying his post-commitment motion for a new trial and relief from the judgment.

¶ 2. Brown argues that: (1) he is entitled to a new trial in the interest of justice "because of the complete confusion and the multitude of errors committed by the expert witnesses, the trial attorneys and the trial judge concerning the proper standard for commitment under the 'substantial probability language" of Wis. Stat. § 980.02(2)(c) (1999-2000); (2) the trial court erred in failing to strike a juror for cause, thus requiring him to use a peremptory strike to correct the court's error; and (3) the trial court erred in failing to instruct the jury that the State was required to prove that he was within ninety days of release, as required by Wis. Stat. §§ 980.02(2)(ag) and 980.05(3)(a), and, further, that the State failed to prove that essential element. We affirm.

I. BACKGROUND

¶ 3. This case has a long history. It commenced in March 1995 when the State filed a ch. 980 petition, and it rendered various appeals even before Brown's jury trial took place in November 1998. See State v. Brown, 215 Wis. 2d 716, 573 N.W.2d 884 (Ct. App. 1997).

¶ 4. Following the jury trial and the initiation of subsequent appellate proceedings, we held the case pending the Wisconsin Supreme Court's resolution of legal issues in other cases that were also involved in this appeal. See State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94 (Thiel I); State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784. The resolution of some of those issues depended, in part, on the United States Supreme Court's determination of Kansas v. Crane, 534 U.S. 407 (2002). And resolution of one of the issues in the instant appeal further depended on this court's determination of additional issues that had to be resolved following remand of one of the cases from the Wisconsin Supreme Court. See State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, review denied, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (No. 99-0316) (Thiel II).

¶ 5. Further, we provided the parties the opportunity to file supplemental briefs to offer their views on the impact of the two Thiel decisions on this case. We have considered their very helpful supplemental submissions, and we now resolve one more issue spawned by the Thiel decisions: whether the supreme court's determination that affirmance of a ch. 980 commitment is appropriate "if the trial record reflects that the petition was filed within 90 days of [a defendant's mandatory release] date, notwithstanding the circuit court's failure to make a specific finding to that effect," Thiel, 2000 WI 67 at ¶ 26, depends on whether the commitment case was tried by the bench or by a jury.

II. DISCUSSION

A. Interest of Justice/"Substantial Probability"

• ¶ 6. Brown first argues for a new trial in the interest of justice contending that "the real controversy was not fully or properly tried due to various errors concerning the proper legal standard and definition of the single most important element that the [S]tate was required to prove: [t]he 'substantial probability' that [he] would reoffend." He maintains that a "multitude of missteps concerning the proper jury instruction on the 'substantial probability' element denied him a fair trial and precluded the case from being properly and fully tried to the jury." We disagree.

¶ 7. Wisconsin Stat. § 752.35 provides this court the authority to grant a new trial in the interest of justice "if it appears from the record that the real controversy has not been fully tried." Our discretion to order a new trial in the interest of justice, however, should be exercised carefully and only in exceptional cases. See Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 794, 501 N.W.2d 788 (1993); Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). Where the trial court did not err, and where the record establishes that the case was fully tried, a new trial is not appropriate. See Beacon Bowl, 176 Wis. 2d at 794. Here, although the trial traveled an unusual road on the way to the court's ultimate jury instruction on "substantial probability," we conclude that the instruction was correct and the case was fully tried.

¶ 8. When Brown's trial took place in the first week of November 1998, Wis JI — Criminal 2502 set forth the elements the State had to prove in order to establish that a person was "dangerous to others because he has a mental disorder which creates a substantial probability that he will engage in acts of sexual violence." The instruction did not define "substantial probability" and, at that time, no appellate decision required a court to further define it. See State v. Zanelli, 212 Wis. 2d 358, 372-76, 569 N.W.2d 301 (Ct. App. 1997); State v. Curiel, 227 Wis. 2d 389, 401, 597 N.W.2d 697 (1999). Just one month before Brown's trial, however, on October 1, 1998, this court ordered publication of State v. Kienitz, 221 Wis. 2d 275, 585 N.W.2d 609 (Ct. App. 1998), in which this court concluded that "substantially probable" means "considerably more likely to occur than not to occur." Id. at 293-300.

¶ 9. At the beginning of Brown's trial, the prosecutor asked the trial court to supplement the 2502 jury instruction by including the Kienitz definition of "substantially probable." Defense counsel objected, arguing that the court should use the standard instruction, given that the supreme court had not yet determined whether this court's definition of "substantially probable" was correct. The trial court deferred ruling until the final instructions conference. At the instructions conference, the trial court concluded that it would use the standard 2502 instruction but added that if the definition came into dispute in the course of closing arguments, or if the jury requested clarification of the standard, it would add the Kienitz definition.

¶ 10. During the trial, the witnesses offered certain testimony consistent with the Kienitz definition. Dr. Norman Goldfarb, a psychologist employed by the Department of Corrections, sometimes testified in terms of merely "more likely than not." However, in response to the prosecutor's question about whether he believed "there [was] a substantial probability, which is defined as considerably more likely to occur than not, that [Brown would] act out sexually in the future" (emphasis added), Dr. Goldfarb answered, "Yes, I do." Similarly, another psychologist, Dr. Catón Roberts, responding to the prosecutor's question, "[H]ave you formed an opinion to a reasonable degree of professional certainty if these disorders create a substantial probability[,] and by that I mean considerably more likely than not to occur, that [Brown will] engage in acts of sexual violence in the future" (emphasis added), answered that he had reached that opinion and that "they do create that substantial probability."

¶ 11. When, during closing argument, defense counsel began suggesting numerical/percentile estimates of "substantial probability," and when counsel even argued that such probability was in the "range" of "at least" seventy or eighty per cent, the prosecutor asked to approach the bench. A sidebar conference followed and, immediately thereafter, the court instructed the jury, "Substantial probability is not defined numerically as a percentage point, but I would offer to you the definition that substantial probability means considerably more likely to occur than not to occur." Defense counsel did not object.

¶ 12. Despite the apparent care with which the trial court conferred with counsel and approached this issue, and despite the fact that defense counsel did not object when the trial court instructed the jury using the Kienitz definition, Brown argues: "Without reason or warning, in the middle of his closing argument, after the entire trial, the judge changed her mind and instructed the jury with the Kienitz definition. That was totally unfair and completely undercut [his] defense strategy." Further, despite the manner in which the prosecutor's questions and the witnesses' answers were framed within the Kienitz standard, Brown now argues that the experts' testimonies failed to establish "substantial probability" consistent with Kienitz. Clearly, the record refutes Brown's claim that the trial court erred when it "refused to follow the published court of appeals decision in Kienitz at the beginning of the trial."

¶ 13. Brown's position on appeal is further deflated by his closing argument following the trial court's interruption and Kienitz instruction defining "substantial probability." Defense counsel then continued: "[W]hat does that mean? Considerably more likely to occur than not occur? I would argue that it's more than just fifty-one percent[;] it's that high range [of at least seventy to eighty per cent] that I mentioned."

¶ 14. Thus, even if Brown is correct in asserting that, despite his objection at the beginning of the trial, the trial court should have employed the Kienitz standard from the beginning, its failure to do so did not, as he claims, "undercut [his] defense strategy ... to argue to the jury that 'substantial probability' was a very high standard, and one which the jury would define for itself." After all, following the court's supplemental instruction incorporating the Kienitz definition, counsel was able to continue his same percentile argument. And why not? After all, "considerably more likely than not" may indeed suggest something in "at least" the seventy-to-eighty percent range counsel argued.

¶ 15. Thus, Brown's strategy was not undermined by the trial court's Kienitz instruction. Therefore, based on this compelling record, we reject Brown's argument for a new trial in the interest of justice.

B. Jury Selection

¶ 16. Brown next argues that the trial court erred in failing to strike a prospective juror for cause and that he was prejudiced by being forced to use one of his peremptory strikes to remove him. Although a few years ago, when the parties first briefed this issue, a more thorough analysis would have been required, we now need do no more than recognize that, under the supreme court's recent decision in State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223 (overruling State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997)), Brown's argument fails.

¶ 17. Brown used a peremptory strike to remove the prospective juror he challenged. He does not argue that any biased jurors actually served on the jury in his case. Thus, under Lindell, even if the trial court erred in failing to strike the prospective juror, Brown "received that which he was entitled to under state law when he used a peremptory challenge." Id. at ¶ 131. He was tried by a fair and impartial jury and is not entitled to a new trial. See id. at ¶¶ 90-91, 113, 118.

C. The Ninety-Day Element

¶ 18. Finally, Brown argues that the trial court erred in failing to instruct that the State was required to prove that he was within ninety days of release, as required by Wis. Stat. §§ 980.02(2)(ag) and 980.05(3)(a), and, further, that the State failed to prove that element. Because the undisputed documentary evidence established that Brown was within ninety days of his release date when the State filed the commitment petition, we conclude, under Thiel I, that he is not entitled to a new trial on that element.

¶ 19. In Thiel I, the supreme court held that ch. 980 requires the State to prove that its petition was filed within ninety days of a defendant's release date. Thiel, 2000 WI 67 at ¶¶ 1, 10-21. The supreme court also stated, however: "We will affirm the order of commitment if the trial record reflects that the petition was filed within 90 days of Thiel's [mandatory release] date, notwithstanding the circuit court's failure to make a specific finding to that effect." Id. at ¶ 26. Because, in Thiel I, the record was not sufficiently clear for the supreme court to determine whether Thiel was within ninety days of his release when the State filed the petition, it remanded the case to this court to determine the appropriate remedy. Id. at ¶¶ 1, 29-38. On remand, in Thiel II, this court concluded, in part, that because there was "no challenge to the sufficiency of the evidence supporting the criteria for commitment ... all that [was] necessary [was] a trial limited to whether Thiel was within ninety days of his release." Thiel, 2001 WI App 52 at ¶ 31.

¶ 20. Here, no new trial is needed because the record is clear and undisputed. As summarized by the State in its initial brief to this court:

A certified copy of [Brown's] sentence data was admitted into evidence and that document shows his mandatory release date was March 9, 1995. The petition itself is in the record as document 2; the petition states Brown's mandatory release date is March 9, 1995. The petition is file[-]stamped March 3, 1995. Brown admits this timely filing in his brief.

(Citations omitted.) In further confirmation, the State, in its supplemental brief, notes that "the uncontra-dicted documents in the record. . . prove Brown was within ninety days of his release date when the petition was filed," and that "Brown has never challenged the accuracy of. . . this information."

¶ 21. Brown does not disagree or dispute the uncontradicted documents in any way. Instead, he argues that the Thiel circumstances are significantly distinguishable because Thiel's appeal came from a bench trial while his (Brown's) case was tried by a jury. We are not persuaded. We read nothing in Thiel I to suggest that the supreme court's unequivocal statement —"We will affirm the order of commitment if the trial record reflects that the petition was filed within 90 days of Thiel's [mandatory release] date, notwithstanding the circuit court's failure to make a specific finding to that effect," Thiel, 2000 WI 67 at ¶ 26—was to be limited to cases coming from bench trials.

¶ 22. Here, it is undisputed that "the trial record reflects that the petition was filed within 90 days" of Brown's mandatory release date. See id. Accordingly, consistent with Thiel I, we affirm Brown's commitment. See also Neder v. United States, 527 U.S. 1, 15 (1999) (holding, inter alia, that, where element of a crime is undisputed, the erroneous omission of that element from the jury instruction is subject to harmless-error analysis).

By the Court. — Judgment and orders affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version. The statutes cited in this opinion have not substantially changed since the time periods relevant to the issues in this appeal.

       The supreme court granted review in both Curiel and Kienitz on October 14, 1998, just before Brown's trial, but did not decide them until 1999, long after his trial. The court concluded that the jury instruction must include an additional definition of "substantial probability," and concluded that it should be defined as "much more likely than not." State v. Curiel, 227 Wis. 2d 389, 415, 597 N.W.2d 697 (1999); State v. Kienitz, 227 Wis. 2d 423, 442, 597 N.W.2d 712 (1999).

       And, as the State points out, defense counsel never objected to the instruction "on the grounds that the additional instruction during closing argument constituted an unfair surprise or hampered him in any way in presenting his case."


author: FINE, J. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shelleen B. Joyner, Defendant-Appellant.

    Court of Appeals

      No. 01-3049-CR.

      Submitted on briefs August 6, 2002.

    Decided September 24, 2002.

    2002 WI App 250
    (Also reported in 653 N.W.2d 290.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review denied 12-10-02.

   FINE, J.

¶ 1. Shelleen B. Joyner appeals from a judgment of conviction entered on a jury verdict finding her guilty of robbery with the use of force, as a party to a crime. See Wis. Stat. §§ 943.32(l)(a) & 939.05. Joyner also appeals from an order denying her postconviction motion for a new trial. She claims that: (1) she was denied the effective assistance of counsel when her trial attorney failed to object to what she claims was prejudicial hearsay; (2) the trial court erred when it determined that an alleged confession by her sister was not admissible as a statement against the sister's penal interest; and (3) she is entitled to a new trial in the interest of justice because the real controversy, the identity of the robber, was not fully and fairly tried. We affirm.

I.

¶ 2. Shelleen B. Joyner was tried for stealing a purse from ninety-two-year-old Constance Anderson in September of 2000. Jeffery Schmitt, a witness to the crime, testified that he was riding his bicycle on the east side of Milwaukee when he heard a "scream or a sigh for help." He saw Anderson lying on the sidewalk and a woman, whom he later identified as Shelleen Joyner, running away from Anderson with a purse in her hand. Schmitt testified that he was able to get a good look at Joyner as she ran past him. Schmitt further testified that Joyner got into the front, passenger side door of a blue, four-door sedan with a license plate number VER-456.

¶ 3. Schmitt chased the car on his bicycle, but returned to Anderson. Schmitt testified that Anderson told him that someone had taken her purse. Schmitt called the police on his cellular phone and waited with Anderson. According to Schmitt, Anderson "had a big lump on the back of her head, and she was bleeding down her back."

¶ 4. Joyner was charged after Schmitt picked her out of a six-woman photographic array and a five-woman lineup. Prior to trial, her first attorney, F.M. Van Hecke, moved to withdraw as her counsel. Van Hecke claimed that he could no longer represent her because he had become a potential witness based upon a "confession" that Joyner's sister, Trudy Joyner, made to him.

¶ 5. When Trudy Joyner did not appear at trial, Shelleen Joyner's then-current attorney sought to admit Trudy Joyner's "confession" through Van Hecke's testimony. According to a written statement that Trudy Joyner signed, she claimed that "Denise Werchowski did the robbery [and] I was in the car; Shelleen wasn't there." Trudy Joyner's full narrative as material to the robbery was recorded by Van Hecke as follows:

Denise Werchowski did the robbery & I was in the car; Shelleen wasn't there. I didn't know Denise was going to do this. [I'm afraid of Frank. Denise was hit by Scrap [sic]. Frank & Scrap are in things together.] Sept. 14 Scrap grabbed keys from Shelleen. "Let's go to get some money" : Denise. She went all over to get money that day. She wanted to score crack. We went to her house & she stole some T shirts from her boyfriend & sold 'em. Denise's words I took that she was gonna borrow money from somebody. Denise said "Wait a minute, park here, pullup & wait." She got out & then I heard a yell & then she ran up "come on, come on." There was plastic on the back window of the car & I couldn't see behind. She got in on the passenger side door (front). "Take off, come on, come on." I thought "Oh Man, I'm gone, I'm done, I'm through." I heard a white man. mumbling & [illegible] Denise had a purse in her hand. When I saw the purse I thought we were in big trouble & I wanted to get out of there. I wanted to tell the police, but how could I? Maybe I'm better in jail than dying.

(Non-italicized bracketed material in original.) "Frank" was described in an earlier part of the statement as the father of Trudy Joyner's child, and someone of whom she is afraid. "Scrap" is not further identified. From this statement it appears that "Scrap" was driving; there is nothing in the statement that indicates that Trudy Joyner was driving. For some reason, the Dissent ignores this.

¶ 6. Shelleen Joyner's attorney argued that Trudy Joyner's statement to Van Hecke was admissible as a statement against Trudy Joyner's penal interest because it implicated Trudy Joyner in the robbery. The trial court determined that Trudy Joyner was unavailable because she failed to appear when subpoenaed but that the statement was inadmissible because it was not against Trudy Joyner's penal interest.

II.

¶ 7. First, Shelleen Joyner alleges that her trial counsel was ineffective when he failed to object to what she calls "prejudicial hearsay." The familiar two-pronged test for ineffective-assistance-of-counsel claims requires a defendant to prove: (1) deficient performance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must show specific acts or omissions of counsel that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690. There is a "strong presumption that counsel acted reasonably within professional norms." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845, 848 (1990).

¶ 8. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Strickland, 466 U.S. at 687. To succeed, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694.

¶ 9. Our standard for reviewing this claim involves a mixed question of law and fact. Johnson, 153 Wis. 2d at 127, 449 N.W.2d at 848. The trial court's findings of fact will not be disturbed unless they are clearly erroneous. Ibid. The legal conclusions, however, whether the lawyer's performance was deficient and prejudicial are questions of law that we review de novo. Id., 153 Wis. 2d at 128, 449 N.W.2d at 848. Finally, we need not address both Strickland prongs if the defendant fails to make a sufficient showing on either one. Strickland, 466 U.S. at 697.

¶ 10. At trial, Officer Tracy Becker testified about an investigatory conversation with Shelleen Joyner, Trudy Joyner, Wendy Dabney, and Denise Werchowski a day or so after the robbery. Officer Becker testified, in response to questions by Joyner's lawyer; that Shelleen Joyner denied robbing Anderson. According to the officer, Shelleen Joyner said that she was not involved but that her sister Trudy Joyner and Werchowski may have done it. The officer also told the jury, this time in response to questions asked by the prosecutor:

In talking to all of them, Shelleen Joyner stated that she had gone to that area on the east side to visit friends but had never done any offense. Trudy Joyner [sic] - she had stated she went with Denise Werchowski and with her sister, Trudy Joyner. Trudy Joyner denied ever getting in the car and going to that area. Denise Werchowski stated she had gone to the area with both Trudy and Shelleen, so there stories were all conflicting.

And then later in Officer Becker's testimony:

The information from Wendy Dabney provided that she had left that house, Shelleen Joyner's house, just about 12:00 in the afternoon. This offense occurred at 12:45. At that time Shelleen Joyner was the passenger in the front seat of her vehicle. Her sister, Trudy, was in the driver's seat, denise [sic] Werchowski as [sic] in the back seat, and they were about to go somewhere. That added to my suspicion that all three of these people may have been involved in in [sic] that offense. That added on to Trudy saying she was never in the car at all, had never gone anywhere. The other two saying that they were there with Trudy. All their stories were conflicting, so based on all that information, they were then placed under arrest.

Shelleen Joyner alleges that this was prejudicial because it contradicted her testimony and the testimony of her witnesses that she was at home when the robbery occurred. She thus claims that this testimony "gave significant corroborating evidence to the state's case" and that without it "there was a reasonable probability of an acquittal." We disagree.

¶ 11. According to Officer Becker, Shelleen Joyner denied being involved in the robbery. Shelleen Joyner also claimed that she had gone to the east side with Trudy Joyner and Werchowski. Trudy Joyner denied to Officer Becker that she was ever in Shelleen Joyner's car, and Dabney claimed that she saw Shelleen Joyner, Trudy Joyner, and Werchowski leave in Shelleen Joyner's car. Further, Werchowski claimed that she had gone to the east side with Shelleen and Trudy Joyner. Although the conflicting comments by Dabney, Wer-chowski, and Trudy Joyner may have contradicted Shelleen Joyner's claim that she was not in the car that day, admission of the evidence does not rise to the level of prejudice that an ineffective-assistance-of-counsel claim must reach; Shelleen Joyner has not demonstrated a "reasonable probability" that but for her trial counsel's failure to object, the result of her trial would have been different, especially in light of the fact that her out-of-court statement to Officer Becker admitting that she was with the others that day was admissible non-hearsay, under Wis. Stat. Rule 908.01(4)(b)l. See Strickland, 466 U.S. at 694. Inexplicably, the Dissent ignores that Shelleen Joyner's "alibi" was, to use the Dissent's word, "torpedoed" by her own statements to Officer Becker. Her admission to Officer Becker that she had "gone to that area on the east side to visit friends" effectively sunk her alibi hy itself — and would have even if the statements of the others had been excluded.

¶ 12. Second, Shelleen Joyner claims that the trial court erred when it determined that Trudy Joyner's alleged confession was inadmissible. Shelleen Joyner's allegation presents overlapping claims. In her brief, she frames this issue as an interest-of-justice claim, alleging that she is entitled to a new trial because the real controversy, the identity of the purse-snatcher, was not fully and fairly tried.

¶ 13. Shelleen Joyner also appears to make an evidentiary claim, however, contending that the trial court erred when it determined that Trudy Joyner's confession was inadmissible because her "confession" was not against Trudy Joyner's penal interest. We will address Shelleen Joyner's evidentiary claim first because a resolution of this claim will resolve the interest-of-justice claim. See Saenz v. Murphy, 162 Wis. 2d 54, 57 n.2, 469 N.W.2d 611, 612 n.2 (1991) ("this court is not bound by the issues as they are framed by the parties"), overruled on other grounds by State ex rel. Anderson-El v. Cooke, 2000 WI 40, 234 Wis. 2d 626, 610 N.W.2d 821.

¶ 14. Shelleen Joyner claims that "[t]he circuit court was wrong in concluding that nothing in the statement was against Trudy's penal interest [because] Trudy admitted that she knowingly helped a robber escape." We disagree.

¶ 15. Hearsay statements that are against an unavailable declarant's interest are admissible as an exception to the hearsay rule. Wisconsin Stat. Rule 908.045(4) defines a statement against interest as:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.

The exception for statements against interest is based on the assumption that people do not make statements that are damaging to themselves unless they have a good reason to believe that those statements are true. State v. Stevens, 171 Wis. 2d 106, 113, 490 N.W.2d 753, 757 (Ct. App. 1992).

¶ 16. Generally, a trial court's decision to admit a hearsay statement is discretionary and we will not reverse unless the trial court erroneously exercised its discretion. State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299, 309 (1990). Whether a statement is admissible under a hearsay exception, however, is a question of law that we review de novo. Stevens, 171 Wis. 2d at 112, 490 N.W.2d at 756.

¶ 17. In this case, Trudy Joyner made a statement to Shelleen Joyner's attorney, Van Hecke. Van Hecke transcribed what she told him and she signed it. At trial, Shelleen Joyner's attorney argued that this statement should be admitted through Van Hecke's testimony because it was a statement against Trudy Joyner's penal interest. The trial court disagreed:

Saying somebody else committed the crime I don't feel is against her penal interest. To the extent that you want to have a statement from Trudy staying [sic] she admits she committed the crime, that is against her penal interest. The remainder of any statement that somebody says somebody else was with her and somebody else committed the crime, that is not against her penal interest, so I won't allow that part of the statement.

We agree.

¶ 18. Shelleen Joyner argues that Trudy Joyner's statement is against her penal interest, however, because Trudy Joyner admitted that she "knowingly helped a robber escape." We disagree. "[W]hen ruling upon a narrative's admissibility ... a court must break it down and determine the separate admissibility of each 'single declaration or remark.'" United States v. Conan, 48 F.3d 954, 959 (6th Cir. 1995) (quoting Williamson v. United States, 512 U.S. 594, 599 (1994)). "[E]ach particular assertion in a narrative should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest." Silverstein v. Chase, 260 F.3d 142, 148 (2d Cir. 2001) (citing Williamson, 512 U.S. at 603-604).

¶ 19. Trudy Joyner's "confession" must be broken down into its parts: (1) Trudy Joyner's statement that "Shelleen wasn't there"; and (2) Trudy Joyner's statement that "Denise Werchowski did the robbery [and] I was in the car." Trudy Joyner's first statement, that "Shelleen wasn't there," is not a statement against Trudy Joyner's penal interest. This statement does not inculpate Trudy Joyner. Indeed, simply saying that Shelleen Joyner did not commit a crime does not expose Trudy Joyner to potential criminal liability any more than a statement that Shelleen Joyner did not commit an unrelated bank robbery would.

¶ 20. Trudy Joyner's second statement, that "Denise Werchowski did the robbery [and] I was in the car," is more complex. At trial, Shelleen Joyner's attorney provided the trial court with a copy of Trudy Joyner's "confession," which included this statement. This statement, by itself, however, does not inculpate Trudy Joyner. She merely states that someone else, Wer-chowski, committed a crime, and, as we have seen, it impliedly relates that "Scrap" was driving. Like the first part, it does not expose Trudy Joyner to criminal liability. See Williamson, 512 U.S. at 601 (courts should refrain from assuming that a statement is self-inculpatory because it is part of a fuller confession, especially when the statement implicates someone else).

¶ 21. Shelleen Joyner's attorney attached an affidavit from Van Hecke to the postconviction motion. In the affidavit, Van Hecke claims: "Trudy stated that on September 16, 2000, she drove Shelleen's car. Denise Werchowski was a passenger. Denise left the car and returned, running, with a purse." (Emphasis added.) This statement apparently changes the facts — Trudy Joyner admits that she was involved in the purse-snatching by knowingly driving the getaway car after the fact. While this may tend to inculpate Trudy Joyner, her assertion that Shelleen Joyner was innocent did not tend to inculpate Trudy Joyner under the settled law discussed earlier. A claim that Trudy Joyner was driving the getaway car was distinct from her attempt to exculpate her sister. Moreover, Shelleen Joyner's attorney did not explicitly make this offer of proof to the trial court during the trial. Thus, Shelleen Joyner's attorney was, in effect, asking the postconviction court to consider new evidence.

¶ 22. When a defendant seeks to present new evidence, the following minimum criteria must be met: (1) the evidence must have come to the moving party's knowledge after trial; (2) the moving party must not have been negligent in seeking to discover the evidence; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to that which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial. State v. Boyce, 75 Wis. 2d 452, 457, 249 N.W.2d 758, 760 (1977). If the new evidence fails to meet any one of these criteria, the.moving party is not entitled to a new trial. Id., 75 Wis. 2d at 457, 249 N.W.2d at 761.

¶ 23. Here, Shelleen Joyner's attempt to bolster the offer of proof through the attorney's affidavit with the postconviction motion fails on the first prong — she does not present any evidence that she first discovered after the trial that Trudy Joyner was allegedly driving the getaway car. Indeed, Shelleen Joyner fails to address any of the factors for new evidence or even acknowledge that Van Hecke's statement presented new evidence. It also fails because, as noted, Trudy Joyner's attempt to exculpate her sister was not against Trudy Joyner's penal interest — indeed, it was consistent with her societal and family interest.

¶ 24. Finally, Shelleen Joyner alleges that she is entitled to a new trial in the interest of justice. She claims that the real controversy was not fully and fairly tried because the identification of the robber is a "major issue in th[e] case" and that a "significant component of [her] defense was Trudy Joyner's evidence that Denise Werchowski stole a purse and escaped in the car driven by Trudy." Shelleen Joyner also claims that she is entitled to a new trial because the State introduced evidence that she purchased and used cocaine on the day of the purse-snatching. She contends that this evidence was "improper and prejudicial" because the State used it to imply that her drug use affected her "ethics." Again, we disagree.

¶ 25. Under Wis. Stat. § 752.35, we may grant a discretionary reversal if the real controversy has not been fully tried or if it is likely for any reason that justice has miscarried. State v. Wyss, 124 Wis. 2d 681, 735, 370 N.W.2d 745, 770 (1985), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). In this case, the real controversy was fully tried — we have already concluded that Trudy Joyner's statements were correctly excluded. Therefore, further discussion would simply be a rehash of this argument. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976).

¶ 26. Moreover, Shelleen Joyner's argument that the trial court improperly introduced evidence of her cocaine use is amorphous and undeveloped. Thus, we decline to address it. See Barakat v. Wisconsin Dep't of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398399 (Ct. App. 1995) (a court of appeals may decline to review an issue that is "amorphous and insufficiently developed").

By the Court. — Judgment and order affirmed.

SCHUDSON, J.

¶ 27. (dissenting). The majority's opinion is flawed in two important respects. First, its interpretation of Officer Becker's hearsay testimony is illogical. Second, its analysis of Trudy Joyner's confession is misleading.

I. Officer Becker's Testimony

¶ 28. It is undisputed that Officer Becker's testimony provided statements of Shelleen Joyner, and hearsay statements of Trudy Joyner, Wendy Dabney, and Denise Werchowski. It is undisputed that, in their statements, Shelleen, Wendy, and Denise all placed Shelleen in the car and in the area of the crime. It is undisputed that these statements contradicted Shelleen's alibi. And, as the majority acknowledges, "[t]his testimony [from Officer Becker relating the statements of Trudy, Wendy, and Denise] was, of course, inadmissible hearsay." Majority at ¶ 9 n.2. Nevertheless, the majority concludes that Shelleen Joyner was not prejudiced by the admission of this inadmissible hearsay. I disagree.

¶ 29. When a defendant offers an alibi, the defendant's prior inconsistent statement will often torpedo it. When, in addition, that prior inconsistent statement is further propelled by the corroborating statements of the defendant's friends or relatives (who ordinarily would be expected to support the alibi), the alibi will almost always be destroyed. That is exactly what we have here. The inadmissible hearsay destroyed Shelleen Joyner's alibi, thus establishing the "reasonable probability" that, but for her counsel's failure to objéct, the result of her trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

II. Trudy Joyner's Confession

¶ 30. Even more troubling, however, is the majority's analysis of Trudy Joyner's confession. The majority writes:

Trudy Joyner's second statement, that "Denise Wer-chowski did the robbery [and] I was in the car," is more complex. At trial, Shelleen Joyner's attorney provided the trial court with a copy of Trudy Joyner's "confession," which included this statement. This statement, by itself, however, does not inculpate Trudy Joyner. She merely states that someone else, Werchowski, committed a crime, and, as we have seen, it impliedly relates that "Scrap" was driving. Like the first part, it does not expose Trudy Joyner to criminal liability.
Shelleen Joyner's attorney attached an affidavit from Van Hecke to the postconviction motion. In the affidavit, Van Hecke claims: "Trudy stated that on September 16, 2000, she drove Shelleen's car. Denise Werchowski was a passenger. Denise left the car and returned, running, with a purse." (Emphasis added.) This statement apparently changes the facts — Trudy Joyner admits that she was involved in the purse-snatching by knowingly driving the getaway car after the fact. While this may tend to inculpate Trudy Joyner, Shelleen Joyner's attorney did not explicitly make this offer of proof to the trial court during the trial. Thus, Shelleen Joyner's attorney was, in effect, asking the postconviction court to consider new evidence.

Id. at ¶¶ 19-20 (first and last emphases added; second emphasis — "she drove Shelleen's car" — added in majority opinion; footnote and citation omitted).

¶ 31. If Trudy's confession were as the majority represents in these paragraphs — that Trudy "merely states that someone else, Werchowski, committed a crime" — not only would I agree with the majority's legal conclusion, but I would admonish Joyner's appellate counsel for misrepresenting the record in her brief to this court. Counsel's brief, however, is accurate; the majority's treatment of the record is misleading.

¶ 32. The September 24, 2001 Van Hecke affidavit, submitted in postconviction proceedings, provided no new information on the subject of Trudy Joyner's confession. In fact, the Van Hecke affidavit attached the confession, which had been presented to the trial court as Exhibit 5, at the trial, on February 2, 2001. The confession contained far more than the statement, "Denise Werchowski did the robbery [and] I was in the car." Trudy's confession included:

Denise said, "Wait a minute, park here, pull up & wait." She got out & then I heard a yell & then she ran up, "[C]ome on, come on." There was plastic on the back window of the car & I couldn't see behind. She got on the passenger side door (front). "Take off, come on, come on." I thought, "Ok Man, I'm gone, I'm done, I'm th[r]ough." I heard a white man mumbling & . .. Denise had a purse in her hand. When I saw the purse I thought we were in big trouble & I wanted to get out of there.

(Crossed-out words deleted; punctuation added.) While quoting these words, the majority ignores their apparent implication: Trudy, by her own account, was the getaway driver.

¶ 33. The majority's legal analysis works only if, as the majority claims, the quotation, "Denise Wer-chowski did the robbery [and] I was in the car," appears "by itself' as the only statement possibly implicating Trudy. See Majority at ¶ 19. The majority's analysis works only if, as the majority claims, Van Hecke's affidavit, coming many months after the trial, was the first statement saying that Trudy "drove Shelleen's car" Id. at ¶ 20. The majority's analysis works only if, as the majority claims, Van Hecke's affidavit "changes the facts — Trudy Joyner admits that she was involved in the purse-snatching by knowingly driving the getaway car after the fact." Id.

¶ 34. But Van Hecke's affidavit changed nothing. Trudy's written statement, offered at trial (but not received in evidence), contained the words the majority all but ignores. And, while one could stretch to interpret them differently, Trudy's words, upon any fair reading, admitted that she was the getaway driver. Thus, the majority's analysis, entirely dependent on its truncated treatment of Trudy's confession, fails.

III. Conclusion

¶ 35. The evidence in this trial included inadmissible hearsay — the statements of Trudy, Wendy, and Denise introduced through Officer Becker's testimony — to which defense counsel did not object, that destroyed Joyner's alibi defense. The evidence in this trial, however, did not include admissible hearsay —Trudy Joyner's confession — which defense counsel attempted to introduce, exculpating Shelleen Joyner and implicating Trudy and Denise.

¶ 36. The supreme court has identified two "factually distinct ways" in which "the controversy may not have been fully tried" such that a new trial is required:

(1) when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and (2) when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.

State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996). In this trial, both "distinct ways" occurred. Trudy Joyner's confession "bore" directly on identification of the robber, and Officer Becker's hearsay testimony "clouded" the issue of whether Shelleen's alibi was credible. Thus, Joyner deserves a new trial in the interest of justice. Accordingly, I respectfully dissent.

       During this time, the police also learned that the getaway car was registered to Shelleen Binns, Shelleen Joyner's name from a prior marriage.

       This testimony was, of course, inadmissible hearsay — an out-of-court statement by a party elicited by that party's attorney.

       Shelleen Joyner's trial ran from January 31, 2001, to February 2, 2001, while Van Hecke's affidavit is dated September 24, 2001.


author: ANDERSON, J.

text:
    State of Wisconsin ex rel. Vonnie D. Darby, Petitioner-Appellant,  v. Jon Litscher, Secretary, Department of Corrections, and Kenneth Morgan, Warden, Racine Correctional Institution, Respondents-Respondents.
    Court of Appeals

      No. 02-1018.

      Submitted on briefs August 21, 2002.

    Decided September 25, 2002.

    2002 WI App 258
    (Also reported in 653 N.W.2d 160.)

      On behalf of the petitioner-appellant, the cause was submitted on the brief of Yonnie D. Darby, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 12-10-02.

   ANDERSON, J.

¶ 1. Vonnie D. Darby appeals pro se from a trial court order quashing his writ of habeas corpus. He claims that the Department of Corrections (DOC) erred in its computation of his confinement time by failing to give him good time credit pursuant to Wis. Stat. §§ 302.43 and 303.19(3) (1999-2000) for his misdemeanor convictions. He contends that due to this miscalculation, he is being illegally incarcerated because he had a right to be released from his misdemeanor sentences without being subject to parole supervision or reincarceration for parole violations. We disagree and affirm the order quashing the writ.

¶ 2. The relevant facts are undisputed. Prior to April 19,1993, Darby was serving time in the Wisconsin state prisons. On April 19, 1993, Darby was sentenced to the state prisons for five counts of misdemeanor theft in violation of Wis. Stat. § 943.20(l)(a), all to run consecutively and consecutive to the sentence he was already serving. This sentence was enhanced pursuant to Wis. Stat. § 939.62(l)(a) and (2), which governs habitual criminal sentencing.

¶ 3. In 1998, we held that the enhanced sentence was void as a matter of law because the State did not prove Darby's prior convictions or have him admit to them as is required under Wis. Stat. § 973.12(1). State v. Darby, No. 97-2095, unpublished slip op. (Wis. Ct. App. April 8, 1998). We commuted Darby's sentence to the maximum permitted on five misdemeanor convictions of theft and ordered that the trial court amend the judgment of conviction on remand. Id.

¶ 4. Additionally, in 1993, 1996, and 1997, Darby accumulated other misdemeanor convictions. And, in 1997, he was sentenced to the state prisons for two additional felony convictions.

¶ 5. On May 16, 2000, the DOC released Darby on his mandatory release date pursuant to Wis. Stat. § 302.II. On November 10, 2000, Darby was reincarcerated for violation of parole. The DOC determined that Darby's amount of time available for rein-carceration, calculated from his felony and misdemeanor convictions, was two years, six months and eleven days. The DOC noted the serious nature of Darby's parole violation (a battery charge) and recommended that he serve 100% of the available time for reincarceration. The administrative law judge ordered that Darby's parole supervision be revoked with regard to his misdemeanor and felony sentences that had available time for reincarceration.

¶ 6. On June 3, 2002, Darby filed a petition for writ of habeas corpus in the trial court claiming he was being illegally incarcerated. The State filed a motion to quash Darby's writ; the trial court granted the State's motion. Darby appeals.

¶ 7. This matter requires the interpretation of statutory law. The interpretation and application of a statute to undisputed facts presents a question of law subject to our de novo review. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to discern the intent of the legislature. Id. at 406. To do so, we first consider the language of the statute. Id. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id.

¶ 8. On appeal, Darby renews his challenge to his incarceration. First, Darby seems to suggest that a clerical error caused the trial court to sentence him illegally to the wrong location. He claims that in the amended judgment of conviction (discussed above), "the Ozaukee Co. circuit court clerk, (using Darby's original judgment of conviction as a gilde [sic]) incorrectly and without legal authority, put Waupun prison as the location for the petitioner to be delivered to." From this argument, we infer that Darby is claiming that but for the circuit court clerk "incorrectly and without legal authority" putting "Waupun" as the location for his confinement, he would be a free man because the clerk was supposed to put down a county jail as the location for his confinement. We are not persuaded.

¶ 9. Initially we note that there is no indication in the record that Darby challenged his amended judgment of conviction on this basis. Furthermore, at the time the trial court entered the amended judgment of conviction, Darby was serving a sentence greater than one year in the Wisconsin state prisons for his 1997 felony convictions. Wisconsin Stat. § 973.03(2) requires:

A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.

Thus, Darby was required to serve all sentences in the state prisons. Moreover, the amended judgment of conviction contains the signature of the trial court directly below the order directing that Darby be delivered into the custody of the DOC located in the city of Waupun. Under § 973.03(2), there was not a clerical error, nor was there a judicial error.

¶ 10. Next, Darby contends that the DOC erred in its computation of his release date on his misdemeanor sentences and that he had a right to be released from his misdemeanor sentences without being subject to parole supervision or reincarceration for parole violations. The substance of Darby's argument is that the DOC applied the wrong statutes to his case. We disagree.

¶ 11. The State correctly argues that this case is controlled by Wis. Stat. § 302.11, which governs mandatory release on parole and revocation of parole for inmates of the Wisconsin state prisons. The provisions of § 302.11 are not limited to inmates who are felons. Id. The provisions of § 302.11 do not exclude inmates who are serving part of their sentence for misdemeanor offenses. See id. Thus, we agree with the State that the provisions of § 302.11, including § 302.11(7)(a), are applicable to Darby, who was an inmate of the Wisconsin state prisons.

¶ 12. Wisconsin Stat. § 302.11(1) provides that an inmate's mandatory release date is established at two-thirds of the inmate's sentence. Section 302.11(3) instructs that all consecutive sentences shall be computed as one sentence. Section 302.11(6) states that an inmate released on parole through mandatory release is subject to all conditions and rules of parole until the expiration of his or her sentence or until discharged by the DOC. Finally, § 302.11(7) provides that when a parolee is revoked, the parolee may be returned to prison for up to the length of the remainder of his or her sentence, which is: "the entire sentence less time served in custody prior to parole." Sec. 302.11(7)(a).

¶ 13. Wisconsin Stat. § 302.11(7)(a) does not distinguish between the portion of an original sentence for felony offenses and the portion of an original sentence for misdemeanor offenses. We previously acknowledged this lack of distinction in Ashford v. Division of Hearings & Appeals, 177 Wis. 2d 34, 42, 501 N.W.2d 824 (Ct. App. 1993). In Ashford we noted:

The remainder of the sentence is equal to the total sentence minus the time spent in custody prior to parole.... If consecutive sentences are computed as one continuous sentence, the remainder of the sentence referred to in sec. 302.11(7)(a) must be the remainder of the aggregate sentence. (Emphasis added.)

Thus, the remainder of the aggregate sentence necessarily includes remainders from all offenses, whether felony or misdemeanor. Certainly the legislature did not intend to require the DOC to separately administer good time depending upon the classification of the crimes; this would be an administrative debacle. Instead, we conclude that a prisoner is subject to the statutes and administrative rules that govern the facility in which he or she is incarcerated. The place of the confinement, rather than the nature of the underlying conviction, controls the question of good time.

¶ 14. From our holding, it follows that Darby cannot rely upon Wis. Stat. § 302.43 to succeed on appeal because it applies to "[e]very inmate of a county jail." Darby was not an inmate of a county jail at the time he was sentenced in these matters; Darby was a prisoner in the state prisons. Section 302.43 is clear on its face and applies to only inmates of a county jail. The same logic applies to Darby's reliance on Wis. Stat. § 303.19(3). Section 303.19(3) applies only to inmates of a house of corrections. Darby was not an inmate of a house of corrections.

¶ 15. Finally, we address the constitutional issues raised by Darby. His cruel and unusual punishment argument was inadequately briefed. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (an appellate court can decline to address issues "inadequately briefed"); State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) ("An appellate court is not a performing bear, required to dance to each and every tune played on appeal."). As to his equal protection claim, the distinction of his treatment versus the treatment of a conventional misdemeanant held in a county jail or a house of corrections is a rational distinction because Darby is a more aggravated kind of offender. Moreover, mere inequity, standing alone, cannot serve as the basis for an equal protection complaint. State v. Lindsey, 203 Wis. 2d 423, 433-34, 554 N.W.2d 215 (Ct. App. 1996).

¶ 16. The trial court did not err in quashing Darby's writ of habeas corpus; his incarceration is entirely legal.

By the Court. — Order affirmed.

       Wisconsin Stat. § 302.43 provides:
      Good time. Every inmate of a county jail is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155(4). An inmate who violates any law or any regulation of the jail, or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section, except that the sheriff shall not deprive theinmate of more than 2 days good time for any one offense without the approval of the court. An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of the number of days of good time specified in the court order prepared under s. 807.15(3).
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 303.19(3) provides:
      Employment of prisoners; time credits, earnings and rewards ....
      (3) The superintendent shall keep a true record of the conduct of each prisoner, specifying each infraction of the rules of discipline; and at the end of each month shall give a certificate of good conduct to each prisoner against whom no such infraction is recorded, subject to annulment by the department for subsequent misconduct. Upon each such certificate issued to any such prisoner serving sentence for a misdemeanor the prisoner may be credited, at the discretion of the superintendent, with a diminution of the sentence not exceeding 5 days. Each such prisoner serving sentence for a felony shall receive time credits as provided in s. 302.11.

       Wisconsin Stat. § 302.11 provides in relevant part:
      Mandatory release. The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs, (lg), (lm), (lq), (1 z), (7) and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (lq)(b) or (2)(b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

       We assume that the administrative law judge followed the recommendation of the DOC and revoked Darby's parole for 100% of the available time for each of his convictions. The complete record of Darby's revocation proceedings is not a part of the appellate record. As the appellant, Darby is responsible for ensuring that the record is complete on appeal; when the record is incomplete, this court must assume that the missing material supports the trial court's ruling. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).

       In the alternative, the State argues that Darby has waived his right to appeal because the appropriate avenue for him to have challenged the DOC's jurisdiction for revoking his parole on his misdemeanor sentences was through a petition for writ of certiorari filed within forty-five days of the final decision revoking parole. See Wis. Stat. § 893.735. Darby did not file a writ of certiorari.
      We acknowledge that matters relating to revocation of parole are reviewed by a petition for a writ of certiorari, see Wis. Stat. § 893.735. Additionally, we note that the time limit for filing a writ of certiorari is forty-five days from the date of the revocation decision. Id. We also recognize that the record does not indicate that Darby objected to the DOC's jurisdiction at his revocation hearing.
      Despite the State's credible waiver argument, we choose to address the issue on the merits. See Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 22, 522 N.W.2d 536 (Ct. App. 1994) (waiver is an administrative rule).