Because it is our constitutional duty to say what the law is, we are not bound by a party's concessions of law. Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n. 5, 306 Wis.2d 385, 742 N.W.2d 337. However, for the sake of argument, we assume, without deciding, that A.H.'s testimony was admissible under the present sense impression exception to the hearsay rule.

See State v. Evans, 77 Wis.2d 225, 227–28, 252 N.W.2d 664 (1977) (concluding that certain statements were compelled). Because it is our constitutional duty to declare what the law is, we are not bound to accept concessions of law. Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n. 5, 306 Wis.2d 385, 742 N.W.2d 337. Therefore, I do not accept the concession.

The majority concludes that it cannot distinguish the Youth Concerts from the Classical and Pops Concerts because the Milwaukee Symphony Orchestra did not argue that the Youth Concerts are distinguishable and because it "relie[d] on the nature of the music itself as presenting primarily educational content." Majority op., ¶ 26. While the Milwaukee Symphony Orchestra may have presented its case to this court as the majority states, we are not bound by a party's concession of law or arguments. Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n. 5, 306 Wis. 2d 385, 742 N.W.2d 337 (concluding an appellate court is not bound by a party's concession of law, particularly where the concession involves an erroneous interpretation of a statute). Furthermore, the Tax Appeals Commission analyzed the Youth Concerts separately from the Classical and Pops Concerts in its decision.

More importantly, “[w]e are not bound by the parties' concessions of law, ... particularly a concession based on an erroneous interpretation of the law.” Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n. 5, 306 Wis.2d 385, 742 N.W.2d 337.? ¶ 10 Turning to the case at hand, the totality of the circumstances supported a community caretaking function.

The board does not argue that its application of the rules to Henke and Clarson in this case was constitutional, only that the issue is now moot. Although the board has essentially conceded that their attempt to apply the rules to Henke and Clarson was unconstitutional, we are not bound by this concession. SeeLloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n. 5, 306 Wis. 2d 385, 742 N.W.2d 337 (we are not bound by a party's concession of law); State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (the constitutionality of a statute is a question of law). ¶ 26 The problem is that we do not know if the board attempted to restrain Henke from engaging in the types of activities the funeral board prohibited in Walker.