¶ 46. (dissenting). The majority in this case is in the uniquely unenviable position of rendering a decision that is wrong on the law as well as being fundamentally unfair and unjust. Because neither the law nor fundamental fairness and justice can support the majority opinion's conclusions, I dissent.
¶ 47. The majority opinion frames the legal issue as follows: whether the rule announced in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, can be applied retroactively to a defendant whose opportunity for a direct appeal expired before Douangmala was decided.1 This court did not decide in Douangmala whether its decision was to be retroac*110tively applied to an individual such as Lagundoye who raised the issue in a collateral post-conviction proceeding.
¶ 48. Although this court is not required to follow federal rules regarding the retroactive application of changes in the criminal law, this court has, in the past, relied on federal interpretations in this area and has explicitly adopted three United States Supreme Court cases elaborating upon various aspects of the doctrine of retroactivity: Bousley v. United States, 523 U.S. 614 (1998), Teague v. Lane, 489 U.S. 288 (1989), and Griffith v. United States, 479 U.S. 314 (1987).
¶ 49. Following the federal rules of retroactivity is not easy. One commentator has noted that "the Court's decisions in this area have spawned a veritable cottage industry of academic attempts to impose some order on the chaos."2 Another concluded that the Court's jurisprudence in this area seems to be the product of a split personality.3
¶ 50. Retroactivity under these cases turns on whether a court announces a new or an old rule, whether the new rule is one of substantive criminal law or criminal procedural law, and whether the defendant's challenge is made on direct appeal (or while in the direct appeal pipeline) or on collateral review.4 New rules of substantive criminal law are presumptively *111retroactive;5 new rules of criminal procedure are generally not retroactive to cases that became final before the new rule was announced.6 This case is a review of a collateral post-conviction proceeding. The majority opinion concludes that the present case involves a new rule of criminal procedure.
¶ 51. The lines between a "new rule" and an "old rule,"7 and between a substantive and a procedural change in the law,8 are blurry and often difficult to perceive. But blurriness is no excuse for myopia. The majority opinion's failure to come to grips with the difficult, nuanced issues presented by this case is vexing, and I cannot agree with its short-sighted conclusions.
¶ 52. I agree with the majority opinion that this case is governed by the United States Supreme Court's decisions in Teague and Bousley. I conclude, however, that Lagundoye's conviction must be vacated for the following reasons:
¶ 53. First, the rule announced in Douangmala is not a new rule under the Bousley decision.
*112¶ 54. Second, Douangmala did not announce, under Teague, a new rule even though it overruled prior court of appeals decisions.
¶ 55. Third, Douangmala announced, under Teague, a substantive rule, not a procedural rule.
¶ 56. Fourth, the majority determines the effective date of a statute instead of abiding by the legislative determination of the effective date of Wis. Stat. § 971.08.
¶ 57. Fifth, even if Douangmala is viewed as having announced a new procedural rule, this case falls under the Teague exception that allows retroactive application of a " 'small core' of rules required in the concept of ordered liberty."9 This case implicates significant concerns of liberty and fairness.
I
¶ 58. First, the rule announced in Douangmala is not a new rule under the Bousley decision.
¶ 59. This case is very similar to Bousley. Both Bousley and the present case involve whether a plea was knowingly and intelligently made. The Court concluded in Bousley that the requirement that a plea be knowing and intelligent is an old rule and therefore even a new rule governing what constitutes a knowing and intelligent plea is applied retroactively. Bousley governs this case.
¶ 60. In Bousley, the petitioner pled guilty to the charge of "knowingly and intentionally us[ing] firearms during and in relation to a drug trafficking crime."10 The petitioner's guilty plea was accepted, and he was *113sentenced. The petitioner appealed, challenging the sentence, not the guilty plea.
¶ 61. After the appeal was final, the petitioner sought a writ of habeas corpus, "challenging the factual basis for his guilty plea on the ground that neither the 'evidence' nor the 'plea allocution' showed a 'connection between the firearms in the bedroom of the house, and the garage, where the drug trafficking occurred.' "11 The district court dismissed the petitioner's habeas petition, and the petitioner appealed.
¶ 62. While the petitioner's appeal was pending, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), which held that "active employment of [a] firearm" required a use such as "brandishing, displaying, bartering, striking with, . . . [or] firing or attempting to fire the weapon."12
¶ 63. The Eighth Circuit affirmed the district court's dismissal of the habeas petition on the ground that the petitioner had waived any challenges to his guilty plea or conviction by failing to raise these challenges in his direct appeal. The United States Supreme Court granted review to resolve a circuit split over the "permissibility of post -Bailey collateral attacks on convictions under the use of firearms in drug trafficking statute where the conviction was obtained pursuant to a guilty plea."13
¶ 64. At the United States Supreme Court, the petitioner contended that "neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged."14 *114Petitioner therefore argued that he was not correctly informed "as to the true nature of the charge against him."15
¶ 65. The United States Supreme Court ruled that the underlying constitutional claim Bousley made (although based on the new Bailey case) was that the petitioner's guilty plea was not "knowing and intelligent."16 The Court concluded that "nothing was new about this principle."17
¶ 66. Bousley emphasized that the critically important factor was not the change in the substantive law made in Bailey, but rather how the change in the substantive law affected the knowing and intelligent entry of a guilty plea.
¶ 67. For entry of a guilty plea to be knowing and intelligent, a defendant must "understand^ . . . the nature of the charge and the consequences of his plea."18 The reason for this requirement is that a guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts."19 In Bousley, the Court concluded that the petitioner may collaterally attack the entry of a guilty plea without running afoul of Teague.20
*115¶ 68. The United States Supreme Court ultimately concluded in Bousley, however, that the petitioner waived the argument that his plea was not "knowing and intelligent" when he failed to raise it on direct appeal.
¶ 69. In this case, unlike in Bousley, waiver is not an issue. The Wisconsin legislature has conclusively determined that the failure to advise an accused of potential deportation justifies vacating the conviction. The statute "does not limit the ability to withdraw a plea of guilty or no contest on any other grounds" than those stated in the statute.21 Langudoye has met all the statutory conditions. The Douangmala court concluded that the Wisconsin legislature intended that if the statutory conditions are met (as they are in the present case), the circuit court shall vacate the judgment.22 The legislature has, in effect, declared that when an accused enters a guilty plea without having received the admo*116nition about deportation from the circuit court, the guilty plea is invalid and must be vacated. The legislature declared that a plea entered without the admonition is not knowingly and intelligently made. The harmless error rule does not apply. Neither does the waiver rule. The legislature has explicitly provided a different rule from the ones usually applicable when determining whether a plea was made knowingly and intelligently.
¶ 70. For these reasons, I conclude that Douangmala involves the old notion that a guilty plea must be knowingly and intelligently made. The legislature has set forth a special rule that if an admonition about deportation is not given, the guilty plea is not knowingly and intelligently made and the conviction must be vacated. Such a decision is, according to Bousley, retroactive.
II
¶ 71. Second, Douangmala did not announce a new rule even though it overruled prior court of appeals decisions. Under Teague, a federal court will not disturb a final state conviction "unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court."23
¶ 72. A unanimous court in Douangmala concluded that the earlier court of appeals cases interpreting the statute were "objectively wrong under the *117language of the statute."24 Thus Douangmala did not announce a new rule under Teague.25
¶ 73. According to the majority opinion, "a case announces a new rule if its outcome was susceptible to debate among reasonable minds."26 It concludes that the court of appeals' harmless error analysis in cases prior to Douangmala was susceptible to debate among reasonable minds. Not so, said the court in Douangmala.
¶ 74. When the Douangmala court declared the court of appeals' prior interpretations to be "objectively wrong," it was saying that no reasonable court would conclude that the statute meant something else.
¶ 75. As this court has explained, we do not examine the reasonableness of the mind of the person or the court making the interpretation, but rather, we look *118at the reasonableness of the interpretation itself.27 Thus, according to the case law, reasonable people, the objective test, can reach unreasonable interpretations. When an interpretation adds words to the explicit language of a statute, such as adding the concept of harmless error to a statute that contains no such concept, it is, as this court has stated, "not a case of conflicting, reasonable 'plain meaning' interpretations; it is a case of lower court error."28
¶ 76. Douangmala was not a case in which the "outcome was susceptible to debate among reasonable minds."29 Douangmala was not a case in which this court declared that the language of the statute supported multiple reasonable interpretations.30 All of the members of this court agreed in Douangmala that the text of the statute prescribed both the warning to be given about possible deportation and the remedy for a circuit court's failure to give the warning. Douangmala is a decision in which this court held that the court of appeals reached what this court viewed as an unreasonable interpretation, "a case of lower court error."31
¶ 77. In Douangmala, we unhesitatingly concluded that "[t]he precise words of § 971.08(2) lead inexorably to one conclusion... : the circuit court *119must permit the defendant to withdraw his plea."32 Our ruling in Douangmala "merely clarified the plain language of the statute."33 It didn't change the law. Douangmala finally and conclusively declared what Wis. Stat. § 971.08 has always meant since its enactment in 1986 because its interpretation of the statute was the only reasonable one.
¶ 78. Yet, the majority opinion persists in asserting that merely because the court of appeals' decisions in State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993); State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180 were overruled by Douangmala does not mean that those interpretations were unreasonable.34 The only way the majority opinion can come to this conclusion is to declare that an objective reading of a statute now includes unreasonable interpretations as well as reasonable ones.
¶ 79. If this court were following federal law, as it very frequently does, and if this court were following Teague and Bousley, as it professes to do, it should conclude that Douangmala was merely an objectively correct reading of the language of an existing statute *120and therefore not a new rule. I conclude that Douangmala did not announce a new rule, and it should therefore apply retroactively.
Ill
¶ 80. Third, even if Douangmala announced a new rule, the rule is not procedural but substantive.
¶ 81. Douangmala is not, as the majority opinion claims, new procedural law. Rather, it is old substantive criminal law.35
¶ 82. I acknowledge that if one reads the statute superficially, it appears to be procedural. Section 971.08(1)(c), governing the admonition about deportation, has the surface feel of a procedural statute because it addresses, at least in part, the procedure for taking a guilty plea.
¶ 83. Rules do not, however, "fall neatly under either the substantive or procedural doctrine category."36 They may partake of attributes of both.
¶ 84. The statute and the Douangmala case do more than govern the procedure for taking a guilty plea. Douangmala declared that a conviction based on a guilty plea made without a circuit court's admonition *121about deportation must, as a matter of law, be vacated. Douangmala thus affects the scope and application of all criminal statutes because it challenges the validity of all guilty pleas and, for purposes of Teague, has a substantive impact.
¶ 85. Wisconsin Stat. § 971.08 sets forth the procedure for a circuit court to warn a defendant about deportation but makes the warning a substantive right by vacating a conviction when a circuit court fails to give the warning. In adopting the procedure outlined in § 971.08, the legislature statutorily determined the substantive consequence of a circuit court's failure to adhere to the statute.
¶ 86. Under Bousley, a court holding is "substantive" when it affects the scope and application of a substantive criminal statute.37 In Bousley the Court ruled that the Bailey decision affected the scope and application of a substantive criminal statute. So, too, does Douangmala affect the scope and application of substantive criminal statutes. Accordingly, I conclude that the rule in Douangmala is substantive and should be applied retroactively.
¶ 87. Furthermore, because Wis. Stat. § 971.08 and Douangmala were, objectively, the law when Lagundoye entered his pleas and was convicted, the majority's failure to provide the remedy established by the legislature and requested by Lagundoye has, in my opinion, deprived Lagundoye of the substantive right to knowingly and intelligently enter a plea and interfered with his statutorily created right to have his conviction vacated. I conclude that validating a conviction explic*122itly required to be vacated by state statute might very well violate the due process clause of the Fourteenth Amendment.38
IV
¶ 88. Fourth, the majority has determined the effective date of a statute instead of abiding by the legislative determination of the effective date.
¶ 89. In the present case, in which the prior interpretation of a statute was "objectively wrong," the majority opinion effectively ignores the legislature's prerogative to determine when a statute goes into effect. Section 971.08 went into effect on April 24,1986, and it has remained unchanged ever since, even though this court did not definitively declare what it objectively meant until 2002.
¶ 90. Lagundoye's crimes, pleas, and convictions all occurred after the effective date of the statute. Section 971.08 was, according to the legislature, in *123effect when three circuit court judges failed to inform Lagundoye personally that he was subject to deportation. When the majority opinion declares Douangmala to be a new rule effective after the opinion was announced, it rewrites the effective date of the statute, contrary to the directive of the legislature, and exceeds the authority of this court.
¶ 91. The court commented in Bousley that Teague is inapplicable to criminal statutes. The court stated that "because Teague by its terms applies only to procedural rules, we think it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress."39
¶ 92. The Bousley Court did not further explain what it meant when it declared that Teague did not apply to criminal statutes. The Court may have meant that all criminal statutes, including criminal procedural statutes, enacted by the legislature are not subject to Teague because that doctrine only applies to court-made rules of constitutional procedure.40 Alternatively, it may have meant that Teague does not apply to substantive criminal statutes.41
*124¶ 93. Justice Stevens' concurrence in Bousley provides a more nuanced explanation as to why Teague does not apply to criminal statutes. In his concurrence, Justice Stevens expressed the view that Bousley did not raise any Teague retroactivity issues because "Bailey . . . did not change the law. It merely explained what [the statute] had meant since [it] was enacted. The fact that a number of Courts of Appeals had construed the statute differently is of no . . . legal significance .. . ."42
¶ 94. Justice Stevens' concurrence in Bousley was consistent with a line of cases, both criminal and civil, that state the rule that when the United States Supreme Court interprets a statute, the decision ordinarily applies retroactively because the Court declares what the statute always meant.
¶ 95. The United States Supreme Court's construction of a federal statute "is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construc*125tion."43 Under this theory, when the Court interprets the meaning of a statute, it "explain[s] its understanding of what the statute has meant continuously since the date when it became law. In statutory cases, the Court has no authority to depart from the congressional command setting the effective date of a law that it has enacted."44
¶ 96. If this court were following Teague and Bousley, as it professes to do, I suggest that it should not trump the legislature's authority to decide when a statute becomes effective and should conclude that Douangmala is the authoritative statement of what the statute meant since the effective date of the law set by the legislature. For these reasons, I conclude that Douangmala is retroactive.
*126V
¶ 97. Fifth, even if Douangmala is viewed as having announced a new procedural rule, this case falls under the Teague exception that allows retroactive application of a " 'small core' of rules required in the concept of ordered liberty."45
¶ 98. Under the Teague exception, a new rule must seriously enhance the accuracy of the proceedings and alter our understanding of bedrock procedural elements essential to the fairness of the proceeding.46 A *127guilty plea based on information required by the legislature to be imparted to a defendant enhances the accuracy of the proceedings. That's why the legislature adopted the statute. It wanted a defendant facing deportation to be informed of the consequences of a guilty plea.
¶ 99. Wisconsin Stat. § 971.08 and the Douangmala decision alter our understanding of bedrock procedural elements essential to the fairness of the proceedings because at issue is the statutorily mandated legal principle that a guilty plea must be knowingly and intelligently made and cannot be knowing or intelligent if the circuit court does not admonish the defendant about possible deportation consequences flowing from his plea.
¶ 100. In other words, this court should be examining "whether the claimed error of law was a 'fundamental defect which inherently results in a complete miscarriage of justice' and whether Ti]t presents] exceptional circumstances where the need for the remedy afforded' in a collateral proceeding" is evident.47
¶ 101. This case implicates significant concerns of liberty and fairness. Deportation may result in the loss of "all that makes life worth living."48 The United States Supreme Court clearly and persuasively articulated the significant interests involved in deportation in Bridges v. Wixon as follows:
*128Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.49
¶ 102. The legislature of this state has explicitly-decided in Wis. Stat. § 971.08 that a defendant facing deportation deserves to be expressly and explicitly informed on the record each time he or she enters a guilty plea that may actually result in deportation. Our state legislature understands the seriousness of deportation. To ensure absolute fairness, an individual facing deportation must personally be reminded by a circuit court of this serious consequence so that he or she can carefully consider the consequences before entering a guilty plea.
¶ 103. A comment in the drafting record of § 971.08 describes similar statutes in other states "as going a long way to alleviate the hardship and unfairness when an alien unwittingly pleads guilty to a charge without being informed of the immigration consequences of a plea."50 Our legislature went further than these other state legislatures to alleviate that hardship and unfairness by ensuring that whether or not an alien enters a plea unwittingly, a court must allow the alien to withdraw his plea if he or she was not personally *129informed about possible deportation.51 That an accused is aware of the deportation consequences of a plea at the time he or she entered the plea is irrelevant.52 Today the majority opinion breaks the legislature's commitment to that noble goal.
¶ 104. Lagundoye came to the United States from Nigeria as a nine-year-old in 1984, about 20 years ago, with his mother, younger brother, and sister. He attended public elementary and high school in Milwaukee. He enrolled in college at the University of Wisconsin-Milwaukee. In short, Lagundoye spent most of his life in the United States. Lagundoye's mother, father, two sisters, and brother are all U.S. citizens.
¶ 105. Lagundoye was 21 years old when he committed the first crime for which he was convicted and was 22 or 23 years old when he committed his last crime. He was deported when he was 27 years old.
¶ 106. Lagundoye was convicted of five crimes. The crimes are classified as property crimes, not crimes against life and bodily security: two counts of misdemeanor theft (involving his employer's business), burglary (entering a building with intent to steal), and two counts of forgery (taking credit card slips from his employer and forging them). He was sentenced to prison on the forgery count in 1998, and, while completing his sentence, he was deported in 2002.
¶ 107. Lagundoye's criminal behavior was and is deplorable and inexcusable. With all the opportunities afforded him, by the age of 23 he was a criminal, five times over. He had been in the House of Corrections, on *130probation, and in prison. Although he was still relatively young, he was not a promising prospect to live a productive life in society.
¶ 108. The State deprived him of liberty for more than 8 years by imprisoning him but left him with the opportunity to return to his home in Milwaukee to try to make a fresh start at the end of his prison term. The federal government banished Lagundoye to Nigeria, isolated from his family, friends, and the American culture in which he grew up. The federal government deprived him of any hope or opportunity to return to his family or this country.
¶ 109. The question before us is whether Lagundoye deserves to be punished by banishment when, after his first conviction, three circuit courts failed to follow the requirements set forth in Wis. Stat. § 971.08 by failing to warn him that a conviction would subject him to deportation. Yet each circuit court is held to know that its failure to give the warnings would result in the conviction being vacated.
¶ 110. The majority relies on a technicality to allow the convictions to stand. The technicality is that the defendant made his challenge to the convictions by collateral attack rather than on direct appellate review. The majority concedes that Lagundoye would prevail, and his convictions would be vacated, if his challenge were being heard on direct appellate review. Yet had Lagundoye challenged his convictions by direct appellate review, the challenges might have been viewed as frivolous because the court of appeals had already ruled on the challenge he might have made and does not have the power to overturn its own decisions.53
*131¶ 111. The majority opinion's decision is wrong on the law and shocks the conscience, at least my conscience. I dissent.
¶ 112. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.Majority op., ¶ 2.
Trevor W Morrison, Fair Warning and the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455, 466 (2001).
Linda Meyer, "Nothing We Say Matters": Teague and New Rules, 61 U. Chi. L. Rev. 423, 459 (1994). See also Barry Friedman, Failed Enterprise, 83 Cal. L. Rev 485, 524-25 (1995) (describing Teague as a nearly impenetrable disaster).
Majority op., ¶¶ 11-13.
Majority op., ¶ 12.
Teague v. Lane, 489 U.S. 288, 301 (1989); majority op., ¶ 13.
The United States Supreme Court has fully acknowledged that "[i]t is admittedly difficult to determine when a case announces a new rule for retroactivity purposes." Teague v. Lane, 489 U.S. 288, 301 (1989). The Court has sought to provide some guidance in this area, but its guidance on what constitutes a new rule has often proved more opaque than clarifying.
See, e.g., Hanna v. Plumer, 380 U.S. 460, 471 (1965) ("The line between 'substance' and 'procedure' shifts as the legal context changes. 'Each implies different variables depending upon the particular problem for which it is used.'").
Majority op., ¶ 34.
Bousley v. United States, 523 U.S. 614, 616 (1998).
Id. at 617.
Bailey v. United States, 516 U.S. 137, 144 (1995).
Bousley, 523 U.S. at 618.
Id.
Id.
Id. at 620.
Id. (citing Smith v. O'Grady, 312 U.S. 329 (1941), for the proposition that pleas must be entered knowingly and intelligently).
McCarthy v. United States, 394 U.S. 459, 467 (1969). See also United States v. Ruiz, 536 U.S. 622, 629 (2002); Boykin v. Alabama, 395 U.S. 238, 242 (1969).
McCarthy, 394 U.S. at 466.
The Court in Bousley went on to explain that although the claim was not barred by Teague, the petitioner faced an *115uphill battle because "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Bousley, 523 U.S. at 621 (citing Mabry v. Johnson, 467 U.S. 504, 508 (1984)). Furthermore, the Court noted that the petitioner would have to show that the voluntariness and intelligence of the guilty plea was first challenged on direct review. Id.
State v. Douangmala, 2002 WI 62, ¶ 24, 253 Wis. 2d 173, 646 N.W.2d 1.
See Wis. Stat. § 971.08(d):
If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
O'Dell v. Netherland, 521 U.S. 151, 156 (1997). See Butler v. McKellar, 494 U.S. 407, 414 (1990) ("The 'new rule' principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.").
Douangmala, 253 Wis. 2d 173, ¶ 42.
This court may, regardless of Teague, judicially decide for itself whether an interpretation of a statute is a correct statement of the law as of the date of conviction or whether the interpretation of the statute creates new law. See Fiore v. White, 531 U.S. 225, 228 (2001), in which the United States Supreme Court asked a state supreme court to determine whether its statutory interpretation stated the correct interpretation of the disputed statute on the date the conviction became final. See also Great N. Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 365 (1932) (A "state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.... The alternative is the same whether the subject of the new decision is common law or statute.").
Majority op., ¶ 26 (quoting State v. Horton, 195 Wis. 2d 280, 291, 536 N.W.2d 155 (Ct. App. 1995) (quoting Teague, 489 U.S. at 301)).
Bruno v. Milwaukee County, 2003 WI 28, ¶ 22, 260 Wis. 2d 633, 660 N.W.2d 656.
Bruno, 260 Wis. 2d 633, ¶ 23.
Holland v. McGinnis, 963 F.2d 1044, 1053 (7th Cir. 1992) (citing Butler v. McKellar, 494 U.S. at 415).
Douangmala thus contrasts with Schmelzer, 201 Wis. 2d 246, in which the court had to interpret two statutes and draw reasonable inferences from them in order to reach the conclusion it did.
Bruno, 260 Wis. 2d 663, ¶ 23.
Douangmala, 253 Wis. 2d 173, ¶ 25.
Fiore v. White, 757 A.2d 842, 848-49 (Pa. 2000).
Majority op., ¶ 26, n.17. The majority opinion also argues that statutes relating to the same subject matter should be harmonized when possible. Although § 971.08 and § 971.26 reside in the same chapter, they can not be properly characterized as relating to the same subject matter when § 971.08 fully sets forth the conditions under which a conviction is vacated and when the court determined that inclusion of the harmless error analysis was objectively wrong.
For a discussion of substantive law, see State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756 (Abrahamson, C.J., dissenting), in which I argued in dissent that the change in the law made in State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), which the defendant sought to apply retroactively in Lo, was a substantive rather than a procedural change. I argued that as such, the change should have applied retroactively because it did not fall within the scope of Teague. Lo, 264 Wis. 2d 1, ¶ 113.
United States v. Woods, 986 F.2d 669, 677-78 (3d Cir. 1993).
Bousley, 523 U.S. at 620.
Compare Fiore v. White, 531 U.S. 225, 228 (2001), a unanimous per curiam opinion, in which the Court held that the Pennsylvania Supreme Court's failure to overturn the conviction of a defendant, when the proper interpretation of the statute existing at the time the defendant was convicted did not support his conviction, violated the Due Process Clause of the Fourteenth Amendment.
See also State v. Hazen, 198 Wis. 2d 554, 559, 543 N.W.2d 503 (Ct. App. 1995) ("The due process clause protects interests in life, liberty, and property, and state laws can create additional interests protected by the due process clause.") (citing Ky. Dept. of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)).
The precise mechanism by which state laws create liberty interests protected by the due process clause is not clear. See Kirsch v. Endicott, 201 Wis. 2d 705, 715, 549 N.W.2d 761 (Ct. App. 1996).
Bousley, 523 U.S. at 620.
At least one court, prior to Bousley, concluded that this justification makes little sense as statutes are of less importance than the Constitution. Hrubec v. United States, 734 F. Supp. 60 (E.D.N.Y. 1990).
Subsequent decisions in the federal courts have not clarified this issue. Cases citing Bousley have arisen when the Court's interpretation of a criminal statute resulted in a substantive change in the law. See, e.g., United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001) ("Teague is inapplicable, because Richardson consisted of the Supreme Court's interpretation of a statute and is therefore retroactively available on collateral review."); Lanier v. United States, 220 F.3d 833, 838 (7th Cir. *1242000) ("Teague is inapt here where we interpret a criminal statute."); Glover v. Hargett, 56 F.3d 682, 685 n.4 (5th Cir. 1995) ("[B]ecause Teague concerned the retroactive application of court-made rules of criminal procedure, not state statutes" retroactivity analysis does not apply); United States v. Guardino, 972 F.2d 682, 687 n.7 (6th Cir. 1992) ("Teague prohibited the retroactive application of a new constitutional rule of criminal procedure to an existing conviction. Teague does not bar the retroactive application of Hughey because, unlike Teague, Hughey did not announce a new constitutional rule, but merely interpreted a statute ...").\
This court has, however, applied Teague to statutory interpretation. See State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 255, 548 N.W.2d 45 (1996).
Bousley, 523 U.S. at 625 (Stevens, J., concurring).
Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994).
Rivers, 511 U.S. at 313 n.12. See also United States v. Gonzales, 332 F.3d 825, 826 (5th Cir. 2003) ("A statement of what the law is and always was cannot be a new constitutional rule of criminal procedure."); United States v. City of Tacoma, Washington, 332 F.3d 574, 580 (9th Cir. 2003) (Interpretation of a statute "cannot be considered a 'change' of operative law. The theory of a judicial interpretation of a statute is that the interpretation gives the meaning of the statute from its inception, and does not merely give an interpretation to be used from the date of decision."); Dixon v. Dormire, 263 F.3d 774, 781 (8th Cir. 2001) ("Where, as here, there has been no change in the law, we must give effect to the Supreme Court’s enunciation of what the statute has always meant, even though our circuit precedent may have been otherwise when this dispute arose.") (internal citations omitted). See also Agee v. Russell, 751 N.E.2d 1043, 1047 (Ohio 2001) (decision overturning a lower court's statutory interpretation is retroactive in its operation; the former decision never was the law).
Teague, 489 U.S. at 307.
The notion of ordered liberty is a concept designed to limit the arbitrariness of government action. One scholar has classified the elements of fair process under ordered liberty as being twofold: the requirement of rule-obedience and the requirement of minimum procedures. Edward Rubin, Due Process and the Administrative State, 72 Cal. L. Rev. 1044, 1105 (1984). Rule-obedience requires that "government decisionmakers must follow preestablished rules in adjudicative processes." The minimum procedure principle argues that "certain minimum adjudicatory procedures must be followed in various situations."
Arguably, the majority opinion does not satisfy these strands of due process required to ensure the notion of ordered liberty. The legislature set forth in § 971.08 the minimum procedures required to be performed by an adjudicative body in order to ensure that a defendant facing deportation is fully and personally informed of the consequences of pleading guilty. By failing to apply the rule in Douangmala to Lagundoye, the majority opinion violates both the minimum procedures the legislature has provided to protect defendants facing deportation and the rule that this court itself adopted in Douangmala.
Tyler v. Cain, 533 U.S. 656, 665 (2001) ("To fall within this exception, a new rule must meet two requirements: Infringement of the rule must 'seriously diminish the likelihood of obtaining an accurate conviction," and the rule must' "alter our understanding of the bedrock procedural elements"' essential *127to the fairness of a proceeding.") (citations omitted); Sawyer v. Smith, 497 U.S. 227, 242 (1990); Teague, 489 U.S. at 311; Mackey v. United States, 401 U.S. 667, 693 (1971).
Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
Bridges v. Wixon, 326 U.S. 135, 154 (1945). See also Rose v. H.L. Woolwine, 344 F.2d 993, 995 (4th Cir. 1965); Handlovits v. Adcock, 80 F. Supp. 425, 427 (1948).
See Douangmala, 253 Wis. 2d 173, ¶ 28.
See id., ¶ 31.
Id., ¶¶ 3, 4, 17, 46.
Cook v. Cook, 208 Wis. 2d 166, 186-90, 560 N.W.2d 246 (1997).