*1 Wisconsin, Plaintiff-Respondent, State Clausen, Defendant-Appellant-Petitioner.† Raymond
Supreme Court 4, Argued 1981. November No. 80-1273 - CR. January 5, 1982. Decided 819.) reported (Also in 313 N.W.2d denied, costs, February Motion for reconsideration without † 1982. *2 For appellant-petitioner there were briefs and argument by oral Tyroler, William J. assistant state public defender.
For the plaintiff-respondent argued by the cause was Mary V. Bowman, attorney general, assistant with whom on the brief was Bronson gen- C. Follette, attorney La eral. CALLOW,
WILLIAM G. J. This a review of a de- cision of the appeals affirming court September 20, 1979, judgment Raymond Clausen’s conviction for improvement home fraud, contrary 100.20(2), to sec. Code, Stats., implemented by sec. 110.- Adm. as Stats., by Mil- 02(7) 100.26(3), entered (b), and sec. Curley. Judge county court Patricia S. waukee circuit 21, that on November The facts this case reveal Raymond into a L. Clausen entered con- perform father tract with Pablo M. Borda and his work,1 price a contract certain home $1,900. payment and continued paid a Borda down $250 schedule, payments pursuant the contract to make totaling $1,322. provided that work contract would 21, 1978, completed April commence November 15,1979. working
Defendant Clausen ceased on the Borda home shortly Christmas, attempted Borda before to con- 1978. approximately following tact Clausen ten times this to *3 completed. ascertain when the work would be When Clausen, speak Borda was able to with Clausen informed working him that he was not on the home because either the weather was inclement2 or his assistant was hos- pitalized or unavailable. Clausen never told Borda that complete he provided would be unable work or to the him with a date when work would the be finished. Evi- during March, dence in February, the record reveals that April, 1979, working and Clausen was on three or four 1 The transcript circuit court in this case reveals that Clausen apparently solicited the contract: “Q. Borda, you Mr. when first time that was the heard or employee saw Mr. Clausen? A. It was outside the house when repair program belonged city looking from the to was at house done; left, ap- around what be has to and he Clausen after Mr. proached, job and he me I had asked if to be done some say, you,’ house. I I can for he And ‘Yeah.’ ‘What do said. looking around, then he then I I be and told him what want to done to the house.” temperature Clausen at trial would have testified primed be 60° and F. before the wood the Borda house could painted. remodeling’ contracts, notably Ben for the a
other store, and that “in most instances” Clausen Franklin performed the work on those contracts himself. April 15, 1979, phoned Borda informed
On Clausen and complete him that he had one week to the work before attorney. Borda his would consult week When the elapsed, complete Borda hired new contractor job.3 violating Clausen then was 100.- sec. 20(2), 1977,4 by implemented Stats. as Adm. Code complaint The this matter reveals that Clausen tailed complete following upper (1) work: lower interior window room; scrape, sand, paint, peeling front and or brush loose or prime wood; (3) paint trim; (4) prepare new exterior and paint gutters downspouts. At trial Borda some testified unsatisfactory. of the work Clausen did For ex was ample, gutter Clausen installed a which fell a month down later. allegedly railing upper porch Clausen constructed a new on the wood, properly deck with used instead of new and he failed to prepare railing painting. 100.20, provides: Sec. Stats. competition practices. “100.20 Methods of trade Meth- competition practices ods of in business and trade in business shall competition be fair. Unfair methods of unfair in business and practices hereby prohibited. trade in business are “(2) department, public hearing, may general after issue forbidding competition prac- orders methods of in business or trade by department tices business which are determined to be department, public general hearing, may unfair. The after issue prescribing competition orders methods in business or trade practices department in business which are determined be fair. *4 “(3) department, public hearing, may The after issue a special against any person, enjoining person order such from any employing competition prac- of method business or trade by department tice in business which is determined to be un- department, may public hearing, special The fair. after issue against any person, requiring person employ order such to competition practice method of in business or trade in business department which is determined to be fair. Ag 110.02(7) (b) 100.26(3), sec. and sec. Stats. 1977.5 all will citations be to the [Hereinafter Stats.] complete Clausen’s defense was that he was unable to project delay beyond because of a his control. appeal propriety The issue before us on this is the constitutionality given of a instruction at Clau- sen’s trial. failing Clausen was with to “(4) department justice may complaint The of file a written department alleging person employing with the that the named is competition prac- unfair methods of in business or trade unfair complaint tices business or both. Whenever such a it filed duty department proceed, proper be the of shall after hearing adjudication rules, and in accordance with its alleged, representative department of the matters justice designated by and a of attorney general may appear before the department proceedings. department justice in such The shall judicial be entitled to review of the of the decisions orders department under eh. 227.
“(5) Any person suffering pecuniary loss because of a violation by any person any may other order issued under this section damages any competent jurisdiction sue for therefor in court pecuniary loss, together and shall recover twice the amount of such costs, including attorney’s a reasonable fee. “(6) may department The commence an action in circuit court by temporary in the name of the permanent state to restrain or injunction any the violation of order issued under this section. may discretion, prior entry judgment court in its of final judgments necessary make such or as orders be to restore any person any pecuniary loss suffered because of the or acts practices provided action, proof involved in the thereof is sub- department may mitted to the satisfaction of the court. The use authority investigate its ss. 93.14 and 93.15 to violations order issued under section.” this 100.26(3), provides: Sec. Stats. Penalties. . . “100.26 . “(3) Any person 100.15, 100.19, 100.22, who violates s. 100.20 or intentionally refuses, neglects obey any regula- or who fails 100.20, shall, offense, made tion under s. 100.19 or for each $5,000, imprisoned fined not less than nor more than $25 in the year county jail for not more than one or both.” *5 specified improve- in
work on the date the Borda home contract, ment in violation of the Wisconsin Administra- provision dealing prohibited prac- tive Code trade Ag tices. Wis. Adm. Code sec. 110.02 [hereinafter provides pertinent part: 110.02] practices. “Ag trade 110.02 Prohibited No seller shall engage following in the competition unfair methods of practices: or unfair trade “(7)' . . “(b) begin complete Fail to or work on the dates or period specified improve- within the time in the home contract, ment represented, or as otherwise unless the delay is stoppage, unavailability for reason of labor supplies other materials, casualties, any or unavoidable or beyond changes cause Any the seller’s control. periods the dates or time stated a written contract agreed writing. shall be to in “(c) give timely Fail to notice to the of rea- sons per- seller’s control formance, begin and when the work will or be com- pleted.” specifically charged Clausen was Ag 110.02(7) (6) under grounds above. He defended on the he that had informed Borda that unavailability inclement help weather and precluded timely completion his of the contract. After instructing on the offense,6 elements gave trial court following instructions which are the subject of our review: requires “Wisconsin law that a home begin
contractor complete or work on the dates or within 6 The four (1) elements of the crime are: That the defendant engaged operation was in an or work which constituted home improvement; (2) improve the defendant entered into a home owner, ment contract tenant, with an prop or lessee of residential erty; represented the defendant either in the contract verbally or begin complete when he improve would the home work; ment begin failed to represented the work within time he that he would do so. *6 represented period contractor in which the the time verbally that he would do so in the contract or either delay stoppage, un- reason of labor unless the availability is for materials, supplies unavoidable casual- of ties, beyond other the seller’s control. cause improvement recognizes law that there “The home be reasons of seller home im- the control the of provements delay performance the work. that which his However, requires the home time- law buyer ly given improvements notice be the the home informing per- the reasons of completed.” begin and when the work will or be formance (Emphasis added.) authority As instruction, for the the trial above italicized upon Ag 110.02(7) (c). court relied The defense counsel objected contending instruction, pre- this that he had charge pared complaint a defense tailored to the in the [Ag 110.02(7) (6)] regarding that the instruction charged notice broadened of the of- elements by including description fense of a violation under 110.02(7) (c). responded by noting The trial court that (c) subsection “wouldn’t have to be ... it purpose jury order have become relevant. The jurors is to instructions advise the as to the law.” The say, trial if, court went on in fact, “that this is the regarding up law and performance defense has come contract, under a is entitled to that in- formation.” beginning defendant Clausen claimed that at the brought
of the trial the state had drafted and to the court dealing an instruction crime, elements of the given jury. it had been to the The court noted the in- given struction beginning was at the of the trial at the request of the counsel. objected Defense counsel defense being to the given at instruction the close of the said, predicated my trial he because “I defense what thought going I the instruction was to be.” The court ob- distinguishable offense are
served elements must on the law from and that the court instruct defenses testimony, giving after the close of attention to the law raised; applies it the state can- as defenses expected to know what defenses will be at beginning of the trial. The trial court stated that the defense was based on justifiable delay, and the state then asked for the in- dealing requirement struction on the law with the notice brought jury. of that defense to be to the attention of the say, you The court went on to “It would seem to me that regard- would also be assumed to know what the law was ing you upon.” the defense on which relied The court dealing require- concluded that the instruction with the *7 given ment that notice be for the reasons of de- lay performance modify” did “not the instructions on charged offense, gave requested elements and it instruction. appeals holding affirmed, court of fact “[t]he incorporates language the instruction drawn from (c)
subsection appropriateness does not alter the of the charge instruction in the violating context of a sub- (b). reject section We the defendant’s contention that the instruction an pursuant offense other than regulation (b).” to We affirm the decision of the court appeals rights and hold that process Clausen’s to due adequate by notice were not violated inclusion of the jury instruction at issue.7 appeals following The court of also drew the conclusion which reject: we (b)] provides delays “[Subsection relief for uncontrollable if they requires the seller establishes that are his control and negotiate agreement changes him to a written with the to periods specified
the dates and time
in the. written contract.”
(Emphasis
original.)
(“Any changes
We read the last sentence of subsection
improvement
subject
note that
We
home
trade is
stringent
designed
comprehensive
protect
to
rules
dealing
the consumer.
In a recent
with
decision
a viola-
Chapter Ag
penalty imposed
tion
110 and a
under
Stats.,
100.26(3),
appeals
sec.
the court of
concluded:
history
[100.26(3)]
plain
“The
of the statute
it
makes
legislature
that the
intended
there be no excuse
failing
cerning
years,
public outcry
in
to follow the rules.
con-
With
improvement
the home
trade
the last several
anyone
one would think that
connected with the
home
sure that
trade would first and
make
foremost
they
following
explicitly.
were
the rules
In
case, despite
unconfusing guidelines
this
mentioned in
the clear and
relating
prepar-
the administrative code
ing a
consumers,
contract with
deviated
[the defendant]
from the
imprudence
specifically
directions. That
is
what
excuse for
designed
prevent.
statute was
There
no
failing
to follow the code.”
State v. Balestrieri,
8,1,
87 Wis. 2d
nize the
rule
107,
Schaller,
v.
2d
233 N.W.2d
stated in State
70 Wis.
strictly
(1975),
penal
are to be
con
416
statutes
accused,
equally
that this
it is
true
strued
favor of the
only the narrow
rule
not mean that
of construction does
disregard
possible
adopted
est
construction must be
purpose
Tronca,
State v.
84
2d
of the statute.”
Wis.
80,
(1978).
68,
also: State ex rel.
A trial jury court has wide discretion in in- Pruitt, 69, structions. State v. 80-81, 95 2dWis. 289 (Ct. App. 1980) (no spe- N.W.2d 343 error to refuse cial they erroneous); instructions even when are not State v. Lenarchick, 455, 74 Wis. 2d N.W.2d (dealing with a refusal re- defendant’s quested instruction); Ingalls 647, 653, v. State, 48 Wis. (it N.W. is a matter in the discretion of judge the trial acquit whether he will instruct the prisoner guilt when there is no evidence of his ex- cept testimony uncorroborated accomplice). “ Furthermore, resolution of the issue of the [ultimate appropriateness giving particular instruction turns on
241 case-by-case evidence, with each case of the a review ground.” necessarily standing factual John- its own (1978) State, 22, 28, 153 son v. 85 2d 270 N.W.2d Wis. requested spe- (review refusal a of trial court’s of the defendant instruction on identification cific jury included offense refusal to instruct on lesser Accord, second-degree Dix, murder). State v. 86 Wis. (1979); Combs, 474, 486-87, Kink v. 250 2d 273 N.W.2d viewing 65, 76, (1965). In 2d 789 N.W.2d it, a court the facts circumstances before trial Asfoor, supplement jury State v. instructions as needed. (trial 411, 432-33, 75 Wis. 249 N.W.2d modify jury jury prevent court could instruction to from being closing argument). misled counsel’s prosecution that record this case reveals dealing and defense evidence with the communi- offered concerning parties cations between the failure of the diligently project prior work on the buy- completion colloquy date. This involved er of reasons for the failure to improvements. upon home The defendant relied these ex- concerning noncompletion escape cuses criminal liabili- ty failing to meet the time constraints of the contract. record, Once the matter of notice was introduced into the properly the trial court exercised discretion determin- ing instructed on the should be statute dealing discretion. with notice. This was not abuse of regulation under
We note that the administrative (b) [Ag has which the defendant was 110.02 ] judicially Defendant as- heretofore been considered. serts, agree, Ag 110.02(7) pre- and we would owing completed if to reasons scribes work is not unavailability stoppage, supplies materi- “labor als, casualties, unavoidable other cause statutorily control,” stated seller’s this serves as liability. precluding De- affirmative defense criminal *10 regarding jury time the instruction asserts that fendant ly his affirmative defense notice served as limitation on shortage help and, of of such inclement weather guar process regard, deprived procedural him of his due essence, charge against In antee to notice of him. instruction, argues jury im that home defendant “the requires timely given provement that notice law informing buyer improvements of the home performance of the reasons of the and when begin completed,” the work will or be broadened the ele charged ments of the offense to include element of uncharged offense, contrary mandates. to constitutional Randolph State, 630, 644, See: 266 v. 83 2dWis. N.W.2d (1978) regardless (instruction injury 334 on conduct first-degree charged life in error when defendant with rder) ; State, 133, v. 128, Geitner 207 59 Wis. 2d mu N.W.2d 837 (instruction
(1973) imprisonment false on charged cannot be included when defendant with crime kidnapping). State, 102, Holesome 95, v. 40 Wis. 2d Cf. (court 161 (1968) properly 283 N.W.2d included instruc endangering safety tion on of another when defendant charged first-degree murder). responds state was informed that charged Ag
he was
110.02(7) (b)
with the
violation
seeking
and that
impose
the state is not
criminal
penalties
Ag
violation
110.02(7) (c).
Accord-
ing
state,
challenged
appro-
instruction was
priate for two basic
(1)
reasons:
The instruction on
merely
went
credibility
to the defendant’s
uncontrollability
as to the
per-
the reasons for the
delay;8
(2)
formance
The instruction had no dele-
8
quote
We
appeals
from the state’s court of
brief in this case:
jury
“The issue for the
to decide
whether
was
the defendant’s
testimony
why
the reasons
he was
able
to finish the work
by April 15,
were
his control was credible. The fact
notify
he failed to
Mr. Borda that
the work would not be finished
clearly
terious effect because it was
set outside the ele-
ments of the
offense.9 The state concludes that
given
even if error,
were
instruction
Chapman
error
California,
18,
was
v.
harmless.
386 US
(harmless beyond
doubt) ;
a reasonable
Larson
State,
187, 197,
v.
There is history a dearth of 110.- *11 02 precedent and construing no case this section. We Ag 110.02(7) note that (7) (c) and were both added in 1974. Construction of a par statute in relation to a ticular question set of Bucyrus-Erie facts is a of law. v. ILHR Department, Co. 408, 90 417, Wis. 2d 280 N.W. ; (1979) 2d 142 Bingo Supply Equipment Wisconsin & by April 15 credibility story. tends to decrease the of his credibility of this excuse is further diminished the fact just courtesy, notice is requirement a matter of but a Respondent’s of law.” Appeals Court of Brief at 3. 9 immediately We note that detailing after the four elements of immediately preceding offense and the instruction on timely notice, following the court read the instruction: you beyond “If are satisfied a reasonable doubt that the state offense, you has established the four elements of this should find guilty. you satisfied, you If are not so then guilty.” should find the defendant not deciding We particular note that in whether a de instruction prived rights, a defendant of his constitutional the court must “ way jury determine ‘the in which a reasonable have could ” interpreted 131, Israel, Supp. instruction.’ Ross v. 503 F. (ED 1980) [quoting Montana, 133 Wis. Sandstrom v. 442 U.S. 510, (1979)]. Furthermore, single 514 ‘“a instruction to a judged isolation, not be in artificial but must be viewed ” charge.’ Israel, supra the context of the overall Ross v. at 133 [quoting Cupp Naughten, 141, (1973)]. v. 414 US 146-47
244 293,
Co., Bingo Bd., v. 2d Inc. Wisconsin Control 88 Wis. 308, (1979). 276 716 N.W.2d construing statute,
In a the entire section and related in- sections are to its construction or be considered terpretation. 50, Phillips, 46, State v. 99 2d 298 Furthermore, (Ct. App. 1980). 239 N.W.2d a statute leading idea, should be construed to effect to its brought harmony the entire statute should into purpose. the statute’s Pella Farmers Mutual Insurance Co., v.Co. Hartland Richmond Town Insurance 26 Wis. 41, 29, (1965). 2d 132 225 N.W.2d Sections statutes relating subject to the same matter must be construed pari Jung State, 714, v. 720, materia. 55 2dWis. 201 (1972). Accord, Burkman, N.W.2d 58 State v. 96 Wis. 642, Coble, (1980); 641 State N.W.2d 717, 722, (Ct. App. 1980). Wis. 2d N.W.2d Ag separate Most of the sections 110.02 define prohibitions. example, 110.02(7) distinct (a) For prohibition deals with pressure on tactics used to into a not, home contract.10 We do however, Ag 110.02(7) (b) view (7) (c) being as so sections, unrelated. As we read spe- those both deal cifically with reasons the seller’s control for de- lay performance beyond completion contracted *12 (7) (b) date. acknowledges Subsection and enumerates that statutorily there are which, identified reasons if “beyond shown to be control,” the seller’s will excuse a perform seller’s failure to on (7) (c) time. Subsection requires give the seller to notice of those reasons buyer. Construing to the (7) (b) in isolation of the Ag- 110.02(7) provides: 10 Wis. Adm. Code (a) sec. “Perform (a) materials, begin ance. Deliver any work, use other tactic pressure buyer to the into a home contract, or make any binding claim or agreed assertion that a contract has been upon agreement no understanding where final exists-.”'
245 unreasonable, we must requirement would notice be “A not be construed should a result. statute avoid such Estate results.” as work or unreasonable so to absurd (court 101, Evans, 97, 185 832 28 2dWis. N.W.2d proposed construction of conserva- restrictive held that Accord, defy very purpose). torship would its statute supra 642; Environ- Burkman, at Wisconsin’s State v. 504, Comm., Decade Public mental Service (1978). N.W.2d concluding analysis observation Our leads us buyer implicit (7) (b). The is entitled that notice is going to is to claim that circum- know whether the seller beyond in the failure stances have resulted his control complete to time. information allows the work on This buyer pur- to the to whether make informed decision remedy anticipate sue to that an immediate or whether project the the reasons for will be resolved and completed on which will continued and will be a date acceptable buyer. is and reasonable to the conclude We legislature problems the for the intended to minimize give buyer, requiring the seller to nonperformance resumption for defenses date and a for legislature completion, buy- to intended judgment opportunity er the to make an informed con- cerning project the matter event a not com- pleted on the contracted date.11 adopt argument,
To the defendant’s we would have derogation adopt statutory a construction of common perceive requiring Ag 110.02(7) it, we As notice under buyer proceed leave in a of limbo as would a state how job completed If, example, in the event time. for is not work, buyer arranges another contractor up paying original could he end as the contractor twice resulted later claim control circumstances his justified. construction, may prove a delay, Such a which to know about seller has a but not have defense does clearly buyer unprotected. it, not what This is would leave the legislature intended. *13 that statutes cannot be construed dero-
sense. hold We gation Ag 110.02(7) is a consumer of common sense. protection regulation. requires complete It a seller to a designated a date. If a home contract on complete performance seller for reasons be- is unable to yond control, his he from criminal lia- excused provided bility gave timely that he notice of such rea- buyer. purpose sons to the In order to effect Ag entirety, 110.02(7), it in we read its and we con- Ag concept timely implicit clude notice is challenged 110.02(7) (b). We, therefore, hold that jury entirely timely proper. instruction on notice was The instruction does not run afoul of man- constitutional process adequate notice, dates to due and and it does not deny opportunity prepare the defendant the a defense. upon
In this case we been have called to review the giving instruction, trial court’s discretion in consequently directly we have dealt issue legislature as to whether the 110.02(7) (b) intended (7) (c) separate would, constitute crimes. We however, (7) (b) (7) (c) observe that reality con- (failure cern one offense a home im- provement contract) statutorily and the designated de- fense (factors to that offense the seller’s con- trol). If the defendant in this case had separately been charged and convicted violations both (b) and (7) (c) imposition with the separate penalties, might appealed well claiming have multiplicity charges. of the
Defendant also raises in appeal his the issue as to whether sec. 100.26(3), Stats., requires proof of intent. We have question answered that negative in the in State Stepniewski, 105 Wis. 2d 314 N.W.2d (1982). By the Court. —The decision of the court appeals \ affirmed. SHIRLEY S. ABRAHAMSON, (dissenting). J. I dis- sent. In its uphold effort to the convictions majority *14 (b) Ag 110.02(7) construction on places unreasonable (c), Code.1 Adm. and appeals, that the majority, of holds the court
The like Ag 110.02(7) (c) implicitly in- requirement of notice Ag regulation Ag (b) corporated 110.02(7) in and Ag (c) be 110.02(7) read to- (b) must 110.02(7) and give timely does not gether if the defendant to mean that delay, these reasons notice to the consumer of the the crime. a See reasons do not defense constitute majority page note 11. The reasons “[c]on- 245 and requirement struing (b) (7) in isolation of the [of swpra unreasonable,” p. because (7) (c) would be ] provi- require that the notice of the consumer the needs 110.02(7) Ag (b). Ag (c) 110.02(7) be read into of sion appeals, re- majority, of like the court the Nonetheless 110.02(7) (b) Ag and state whether subsections fuses to single or offenses. offense two (c) define (c) reading Ag 110.02(7) majority’s to- The regulations. wording As gether in the has no basis Ag majority subsections notes most sections Ag wording separate forth offenses. ch. set 110.02(7) (b) (c) clearly sets forth two offenses: 110.02(7) (7) (c) provides Ag (b) and as follows: “Ag practices. engage 110.02 No shall Prohibited trade seller following competition unfair or unfair trade in methods of practices: “(7) . . . PERFORMANCE. “(b) begin complete or work on the dates or within Fail contract, period specified or as time' the home delay represented, is for reason of labor unless the otherwise supplies materials, stoppage, unavailability or unavoidable any beyond Any casualties, the seller’s control. or other cause periods changes or in a contract in the time written dates stated agreed writing. be shall timely give beyond “(c) notice to the of reasons Fail delay performance, any and when control for seller’s completed.” begin or will work period within the time failure to the work justifications
specified in the contract unless one of the regulation specified occurs, stop- in the is “labor page, unavailability supplies materials, unavoid- any beyond casualties, able other cause seller’s control,” Ag 110.02(7) (b) ; and failure to notice to the consumer “of reasons performance,” Ag seller’s control for 110.- 02(7) (c). 110.02(7) (b) makes no reference to no- *15 appeals requirement tice. The of court reads notice the of Ag 110.02(7) (c) (b) reasoning of into the notice requirement implicit Ag is in the last of 110.02 sentence (7) (b). majority rejecting the While is correct the reasoning appeals, of the court of it is then left without any wording Ag vehicle in 110.02(7) (b) the of for in- corporating requirement (c) the (b) of .2 into
Further, majority’s reading Ag the 110.02(7) (b) and (c) together required regulations is not to rénder the reasonable or to avoid absurd or unreasonable result. Ag 110.02(7) (b) (e) separate and can read as be offen- separate ses (or because two omissions) acts of the con- proscribed tractor separate are and two of interests the protected by consumer regulations: are (1) these The appeals The court of concludes that the last sentence of (7) (b) requires part justi as the contractor’s defense of delay fiable agree the contractor and the consumer must to setting starting completing new contract forth and dates. The appeals delay court of implicit then concludes notice of is requirement agreement. the of the written Thus the court of appeals sets forth (1) three of a elements contractor’s defense: justifiable the delay; contractor must have a reason for the notify the contractor must the consumer for reasons delay; and successfully the contractor and consumer must negotiate agreement starting a written to and as new dates of completion. appeals’ reasoning The court of leads absurd being power result of the deciding consumer able to wield the whether the By contractor can be convicted a criminal offense. agreeing agreement not to a new written the consumer can vitiate any justifiable delay may defenses based the contractor have had. timely penalized; perform is to failure contractor’s performance is getting prompt interest consumer’s fail- Ag (b). 110.02(7) (2) The contractor’s protected. penalized; the con- is keep advised to the consumer ure Ag being protected. kept informed interest sumer’s if interpretation, a contractor 110.02(7) (c). this Under delay does not any for have valid reason does not delay, notify for the the consumer of reason failing obey may prosecuted both for to contractor be Ag Ag 110.02(7) 110.02(7) (c); if a contractor delay justifiable not for but does has a reason may prosecuted the contractor be notice to consumer Ag (c); failing obey 110.02(7) if a contractor for but those notifies the reasons may prose- justifiable, are not the contractor reasons failing obey (7) (b). majority cuted for 110.02 The regulations creating think two offenses are not regula- wise, job it is rewrite but the court’s they tions if can be read as written. reading Ag (c) majority’s 110.02(7) (b) to-
gether refusing and at time whether the same decide (creates regulations or two these constitute one offenses prosecutors, confusion for counsel *16 defense and courts. convicting majority separately charging, The hints that penalizing and for violations of both (c) question multiplicity. George, raises State v. (1976); Wright, Federal 230 N.W.2d 142 (1969);. Practice Procedure —Criminal sec. If problem multiplicity, majority’s there is a it is of making. majority own The refuses decide whether Ag 110.02(7) (b) single (c) are multiple offenses and mixes the (c) (b). elements of with those of majority thus proper ap- creates confusion as to the proach charging regulations. under the
Because I am unable to discern a reasonable rationale majority’s decision uphold a desire bar, convictions the case at I dissent.