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+"{\"id\": \"11128751\", \"name\": \"State of Wisconsin, Plaintiff-Respondent, v. Scott L. Stevenson, Defendant-Appellant\", \"name_abbreviation\": \"State v. Stevenson\", \"decision_date\": \"2000-06-28\", \"docket_number\": \"No. 98-2110-CR\", \"first_page\": \"86\", \"last_page\": \"112\", \"citations\": \"236 Wis. 2d 86\", \"volume\": \"236\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:52:14.108613+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Wisconsin, Plaintiff-Respondent, v. Scott L. Stevenson, Defendant-Appellant.\", \"head_matter\": \"State of Wisconsin, Plaintiff-Respondent, v. Scott L. Stevenson, Defendant-Appellant.\\nSupreme Court\\nNo. 98-2110-CR.\\nOral argument February 10, 2000.\\nDecided June 28, 2000.\\n(On certification from the court of appeals.)\\n2000 WI 71\\n(Also reported in 613 N.W.2d 90.)\\nFor the defendant-appellant there were briefs by Elizabeth Cavendish-Sosinski, Daniel P. Fay and Oakton Avenue Law Offices, S.C., Pewaukee, and oral argument by Daniel P. Fay.\\nFor the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.\", \"word_count\": \"6792\", \"char_count\": \"42599\", \"text\": \"ANN WALSH BRADLEY, J.\\n\\u00b6 1. This case is before the court on certification pursuant to Wis. Stat. (Rule) \\u00a7809.61 (1997-98). The defendant, Scott L. Stevenson, appeals the circuit court's judgment of conviction on two counts of making a videotape depicting a person in a state of nudity without the person's consent in violation of Wis. Stat. \\u00a7 944.205(2)(a). Stevenson contends that the statute is facially overbroad under the First Amendment. Because we conclude that Wis. Stat. \\u00a7 944.205(2)(a) suffers from unconstitutional overbreadth, and is not amenable to judicial limitation, we reverse the judgment of conviction and remand to the circuit court for re-sentencing on the charge of obstructing a police officer.\\n\\u00b6 2. The relevant facts to this appeal are not disputed by the parties. Scott Stevenson and his former girlfriend, R.L.H., were involved in a long-term relationship that R.L.H. ended in mid-1997. Subsequent to the end of the relationship, Stevenson went to the house where R.L.H. resided with her parents and climbed onto the roof outside her bedroom window. Perched upon the roof, he proceeded to videotape R.L.H. in various stages of undress as she moved about her bathroom. Stevenson made this videotape without R.L.H.'s knowledge or consent.\\n\\u00b6 3. Stevenson returned to the house the next evening, this time videotaping R.L.H. from a tree outside her bedroom window. Stevenson videotaped his former girlfriend partially nude while she stood in front of her mirror changing outfits. Again, R.L.H. neither knew of nor consented to the making of the videotape.\\n\\u00b6 4. Shortly thereafter, the Waukesha Police Department received a report of a \\\"peeping Tom\\\" on the roof of R.L.H.'s house. Upon arrival at the scene, police officers chased Stevenson from the roof and apprehended him in an alley. The officers then arrested Stevenson for disorderly conduct and resisting an officer. The next day, one of R.L.H.'s brothers recovered a video camera in the alley behind his parents' house and contacted the authorities. This video camera contained the tape made by Stevenson depicting his former girlfriend in the nude.\\n\\u00b6 5. The criminal information filed against Stevenson originally charged him with 31 counts, including numerous counts of making a videotape depicting R.L.H. nude without her consent contrary to Wis. Stat. \\u00a7 944.205(2)(a). In response to Stevenson's motion, the circuit court dismissed as multiplicitous 21 of the 31 counts charged in the information.\\n\\u00b6 6. Stevenson also challenged the constitutionality of Wis. Stat. \\u00a7 944.205(2)(a), asserting that the statute was both vague for failing to clearly define the unit of prosecution under the statute and overbroad for infringing on protected expression under the First Amendment. The circuit court rejected the constitutional challenge, finding that Wis. Stat. \\u00a7 944.205(2)(a) did not implicate First Amendment rights and that Stevenson had failed to satisfy his burden of proving that the statute was unconstitutional.\\n\\u00b6 7. Upon the reconsideration of the constitutional challenge and the circuit court's reiteration of its reason for rejecting that challenge, Stevenson entered no contest pleas to two counts of violating Wis. Stat. \\u00a7 944.205(2)(a) and one count of obstructing a police officer in violation of Wis. Stat. \\u00a7 946.41(1). The circuit court then sentenced Stevenson to the maximum of two years in prison on each violation of Wis. Stat. \\u00a7 944.205(2)(a), to run consecutively, and nine months in county jail on the obstruction count. The sentences were stayed in favor of four years probation with specific conditions, including one-year jail time in the Waukesha County Jail.\\n\\u00b6 8. Stevenson appealed, asserting the same constitutional arguments of vagueness and overbreadth raised before the circuit court. Subsequently, the court of appeals certified to this court the following question: Is Wis. Stat. \\u00a7 944.205(2)(a), subjecting a person who \\\"[t]akes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge and consent of the person who is depicted nude\\\" unconstitutionally overbroad?\\n\\u00b6 9. The certified question before this court requires us to examine whether Wis. Stat. \\u00a7 944.205(2)(a) survives constitutional scrutiny. The constitutionality of a statute presents a question of law that we review independently of the determinations rendered by the circuit court or the court of appeals. State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998).\\n\\u00b6 10. Statutes generally benefit from a presumption of constitutionality that the challenger must refute. County of Kenosha v. C&S Management, Inc., 223 Wis. 2d 373, 383, 588 N.W.2d 236 (1999). When the statute implicates the exercise of First Amendment rights, however, the burden shifts to the government to prove beyond a reasonable doubt that the statute passes constitutional muster. Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 20, 580 N.W.2d 156 (1998); City of Madison v. Baumann, 162 Wis. 2d 660, 668, 470 N.W.2d 296 (1991). Because Wis. Stat. \\u00a7 944.205(2)(a) implicates First Amendment rights, the State assumes the burden of proving that the statute is constitutional beyond a reasonable doubt.\\n\\u00b6 11. We begin our discussion by setting forth the general principles underpinning the First Amendment overbreadth framework to illuminate our subsequent examination of Wis. Stat. \\u00a7 944.205(2)(a). The genesis of the overbreadth doctrine has been attributed to the United States Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940), which recognized that broadly written statutes substantially inhibiting free expression should be open to attack even by a party whose own conduct remains unprotected under the First Amendment. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984); Henry P. Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 11-12 (1982).\\n\\u00b6 12. Litigants claiming that a statute suffers from a constitutional infirmity generally must have a personal and vested interest in the outcome of the litigation, demonstrating the statute's unconstitutional application to their individual conduct. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973). Yet, in the First Amendment context the traditional rules of standing have been modified due to the gravity of a \\\"chilling effect\\\" that may cause others not before the court to refrain from constitutionally protected speech or expression. Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392-93 (1988); State v. Tronca, 84 Wis. 2d 68, 88-89, 267 N.W.2d 216 (1978). In light of the critical significance of First Amendment rights, challengers may champion the free expression rights of others when their own conduct garners no protection. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Janssen, 219 Wis. 2d at 372.\\n\\u00b6 13. The prophylactic overbreadth doctrine further serves to prevent the selective enforcement of a statute that would target and discriminate against certain classes of persons. State v. Thiel, 183 Wis. 2d 505, 522, 515 N.W.2d 847 (1994). The danger inherent in overbroad statutes is that such statutes provide practically unbridled administrative and prosecutorial discretion that may result in selected prosecution based on certain views deemed objectionable by law enforcement. Little v. City of Greenfield, 575 F. Supp. 656, 662 (E.D. Wis. 1983). See also Richard H. Fallon Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 884 (1991). The overbreadth doctrine aims to alleviate that danger.\\n\\u00b6 14. Nevertheless, courts should only sparingly utilize the overbreadth doctrine as a tool for statutory invalidation, proceeding with caution and restraint. Lounge Management, 219 Wis. 2d at 22-23. Although a party may hypothesize situations in which the challenged statute reaches too sweepingly, when the statute's reach encompasses expressive conduct in addition to speech, the overbreadth must be both real and substantial before the statute may be invalidated. Id.; City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226, 466 N.W.2d 861 (1991). Marginal infringement or fanciful hypotheticals of inhibition that are unlikely to occur will not render a statute constitutionally invalid on overbreadth grounds.\\n\\u00b6 15. Having determined that a particular statute is overbroad, courts may pursue one of several options. First, courts may apply a limiting construction to rehabilitate the statute when such a narrowing and validating construction is readily available. Janssen, 219 Wis. 2d at 378. Second, courts may cure the constitutional defect by severing the unconstitutional provisions of a statute and leaving the remainder of the legislation intact. Thiel, 183 Wis. 2d at 522. Finally, courts may determine that the statute is not amenable to judicial limitation or severance and invalidate the entire statute upon a determination that it is unconstitutional on its face. Id.\\n\\u00b6 16. With these general overbreadth principles providing contextual guidance, we proceed next to examine the constitutionality of Wis. Stat. \\u00a7 944.205(2)(a), the statute at issue in this case. The statute provides:\\n(2) Whoever does any of the following is guilty of a Class E felony:\\n(a) Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge or consent of the person who is depicted nude, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.\\nWis. Stat. \\u00a7 944.205(2)(a). At the outset, we note that Stevenson's conduct of surreptitiously videotaping his former girlfriend in the nude is abhorrent and that such conduct is given no protection under the First Amendment. Stevenson concedes as much, yet contends that on its face Wis. Stat. \\u00a7 944.205(2)(a) overreaches in prohibiting other expression that should be sheltered under the First Amendment.\\n\\u00b6 17. Stevenson claims that the State may legitimately proscribe his conduct only under a properly drawn statute that is narrowly tailored so as to avoid any chilling effect on free expression. Although Stevenson's actions do not fall under the protective mantle of the First Amendment, we must be mindful that our overbreadth analysis centers on the statute, Wis. Stat. \\u00a7 944.205(2)(a), and its potential deterrent effect on others not before this court.\\n\\u00b6 18. To illustrate the overbreadth of Wis. Stat. \\u00a7 944.205(2)(a), Stevenson sets forth in his brief a myriad of protected artistic images and contends that the statute criminalizes these images as \\\"visual representations\\\" or \\\"reproductions.\\\" Included among these images are: (1) Titian's \\\"Venus of Urbino,\\\" a 1528 painting of a female nude reproduced by the Yale University Press; (2) a 1927 Imogen Cunningham photograph of a nude female torso featured in Forbes magazine; (3) the New York Times publication of a Pulitzer Prize winning photograph that depicts a Vietnamese girl running nude following a napalm attack; and (4) a political cartoon appearing in Penthouse magazine portraying Kenneth Starr along with partially clad Monica Lewinsky and Linda Tripp.\\n\\u00b6 19. Stevenson maintains that on its face Wis. Stat. \\u00a7 944.205(2)(a) prohibits artistic expressions from being reproduced in books and magazines because the original nude subjects did not consent to those specific reproductions. As to the Pulitzer Prize winning photograph and the political cartoon, he argues that the statute prohibits these original representations as well, since the depicted persons did not consent to the original representations.\\n\\u00b6 20. Furthermore, Stevenson contends that his attorney's decision to include these images in the appellate brief to this court subjects his attorney to criminal prosecution under Wis. Stat. \\u00a7 944.205(2)(a) for reproducing the images without the consent of the persons depicted nude. According to Stevenson, the State's decision not to prosecute his attorney underscores the danger of selective enforcement that the overbreadth doctrine seeks to prevent.\\n\\u00b6 21. At oral argument, the State conceded that Wis. Stat. \\u00a7 944.205(2)(a) is overbroad on its face. We agree. The statute not only properly prohibits Stevenson's surreptitious videotaping of his former girlfriend in the nude, but also improperly prohibits all visual expression of nudity without explicit consent, including political satire and newsworthy images.\\n\\u00b6 22. Wisconsin Stat. \\u00a7 944.205(2)(a) does not limit its reach to original depictions of nudity but rather overreaches to all reproductions. It chills the ability to include copies of masterpieces like Michael-angelo's \\\"David\\\" in a book devoted to famous sculptures and also prevents the dissemination of materials that may portray nudity for health or educational purposes. Accordingly, Wis. Stat. \\u00a7 944.205(2)(a) indiscriminately casts a wide net over expressive conduct protected by the First Amendment and is unconstitutionally overbroad.\\n\\u00b6 23. Having determined that the statute is over-broad, the question that remains is whether the taint of unconstitutional overbreadth may be dissipated by this court applying a hmiting construction to Wis. Stat. \\u00a7 944.205(2)(a). In attempting to sustain its burden of proving that the statute is constitutional, the State proffers language, as a cure for the statute's overbreadth.\\n\\u00b6 24. Adding its suggested language to Wis. Stat. \\u00a7 944.205(2)(a), the State maintains that the statute should apply when a person:\\nTakes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in circumstances where they have a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction (emphasis denotes additional language advanced by the State).\\n\\u00b6 25. The State argues that Wis. Stat. \\u00a7 944.205(2)(a) is an invasion of privacy statute aimed at prohibiting the surreptitious videotaping or visual representation of a person without consent while the person has a reasonable expectation of privacy. According to the State, the addition of the proffered language will rid the statute of its sweeping reach and rein in its application to conduct like that in which Stevenson has engaged.\\n\\u00b6 26. Stevenson recognizes the tension between the right to privacy and the necessity of promoting the free expression of ideas. He acknowledges that the language advanced by the State is presently included in the privacy statutes of Missouri and Oregon. Yet, Ste venson is quick to draw our attention to the legislature's inclusion of the \\\"reasonable expectation of privacy\\\" language in the Missouri and Oregon statutes and the legislature's provision of enumerated exceptions to a similar North Dakota statute. Although no cases appear yet to have challenged the constitutionality of any of the three state statutes, Stevenson posits that overbreadth concerns such as those presented in this case have been apparently addressed by the legislatures of the three other states without the judiciary's assumption of a legislative role.\\n\\u00b6 27. While it is this court's obligation to construe a statute so as to preserve its constitutionality, Wroten, 160 Wis. 2d at 233-34, we will not adopt a limiting construction unless the language of the statute is \\\"readily susceptible\\\" to such construction. Thiel, 183 Wis. 2d at 532 (quoting Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988)). Here, a broad and expansive interpretation is dictated by the unambiguous language of Wis. Stat. \\u00a7 944.205(2)(a).\\n\\u00b6 28. The State's proposed language would have the effect of adding two elements to the crime set forth in the existing statute: (1) that the person depicted nude have a reasonable expectation of privacy in the place or circumstances in which the person is depicted, and (2) that the person depicted be contemporaneously present at the time of the depiction. However, the State is unpersuasive in its argument that the addition of two elements will provide the necessary cure to the statute's overbreadth.\\n\\u00b6 29. The addition of two elements would significantly alter Wis. Stat. \\u00a7 944.205(2)(a) and would essentially require us to rewrite the statute. Yet, it is for the legislature to rewrite \\u00a7 944.205(2)(a) and to craft a clear and precise statute that reconciles the tension between the core concerns of privacy and free expression.\\n\\u00b6 30. \\\"[P]recision must be the touchstone of legislation\\\" that implicates the fundamental freedoms underpinning the First Amendment. Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964). When the statutory penalty is a criminal felony charge, as it is under Wis. Stat. \\u00a7 944.205(2)(a), statutory precision is of greater critical significance. The legislative arena represents the appropriate forum for weighing the myriad policy considerations underlying the interplay of fundamental rights. If statutes are to withstand constitutional attacks premised on the infringement of such fundamental rights, they should reflect with utmost clarity and exactitude the reconciliation of divergent policy concerns.\\n\\u00b6 31. The State contends that this case differs from prior cases in which we have refused to apply a limiting construction to the statutes or ordinances at issue, because unlike those legislative enactments, Wis. Stat. \\u00a7 944.205(2)(a) does not express a legislative intent to apply the statute broadly. See, e.g., Lounge Management, 219 Wis. 2d at 16 n.3; Janssen, 219 Wis. 2d at 366. Although there is no parallel language in \\u00a7 944.205(2)(a) expressing the intent of broad application, the State acknowledges that likewise there is no expressed intent to narrow the scope of application.\\n\\u00b6 32. The State's recognition of this silence underscores the fatal flaw of its argument that we may apply a limiting construction without running afoul of the legislative purpose. Adopting such a limiting construction would have us substitute our judicial intent for legislative intent.\\n\\u00b6 33. In further support of its limiting language, the State cites to numerous cases in which courts have supplied a judicial construction to salvage a statute's constitutionality. See, e.g., United States v. X-Citement Video, 513 U.S. 64 (1994); Hamling v. United States, 418 U.S. 87 (1974); State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977). These cases are distinguishable.\\n\\u00b6 34. Several of the cases address the addition of a scienter element, which is the rule rather than the exception in our criminal jurisprudence, benefiting from a presumption in criminal statutes. X-Citement Video, 513 U.S. at 70; State v. Alfonsi, 33 Wis. 2d 469, 476, 147 N.W.2d 550 (1967). Other cases cited by the State permit a limiting construction in the face of either guidance from prior judicial construction of analogous language or the ready availability of language in the plain text of the statut\\u00e9 supporting the limiting construction. Here, we have not been asked to supply the element of scienter to Wis. Stat. \\u00a7 944.205(2)(a), and language is not readily available in the text of the statute to support the State's limiting construction.\\n\\u00b6 35. Stevenson maintains that our adoption of the two additional elements advanced by the State would not cure the constitutional infirmity inherent in Wis. Stat. \\u00a7 944.205(2)(a). He argues that a constitutional defect remains unless the terms \\\"visual representation\\\" and \\\"reproduction\\\" are excised from the statute.\\n\\u00b6 36. According to Stevenson, the statute as judicially construed nevertheless criminalizes the drawing of a person in the nude as in the political cartoon depicting Monica Lewinsky, Linda Tripp, and Ken Starr if the person is depicted in a place where the person has a reasonable expectation of privacy. He also claims that the rewritten statute reaches the photocopying or reproducing of artistic expressions in which the model is depicted in a place of privacy and has not given consent to the reproduction of the original portrait.\\n\\u00b6 37. Arguably the contemporaneous presence element adequately addresses the political cartoon, subjecting a cartoonist to criminal prosecution only when the cartoon is based on a contemporaneous view of the nude and unconsenting person, not on the artist's imagination. Yet, the term \\\"reproduction\\\" continues to pose a vexing problem for the State.\\n\\u00b6 38. The commingling of the State's proffered element of required contemporaneous presence and the term \\\"reproduction\\\" set forth in Wis. Stat. \\u00a7 944.205(2)(a) would render the statute internally inconsistent. To reproduce is to recreate or subsequently produce. By definition, a reproduction is not contemporaneous to the event. Thus, the second element of contemporaneous presence suggested by the State fails to address the constitutional dilemma posed by the inclusion of the term \\\"reproduction.\\\" The judicial construction of Wis. Stat. \\u00a7 944.205(2)(a) advanced by the State would then necessarily require a severance of the problematic term. A severance coupled with an addition of two new elements reflects the considerable degree of the statute's infirmity.\\n\\u00b6 39. As a proposed solution, the State would have us inject into Wis. Stat. \\u00a7 944.205(2)(a) implied consent to all future reproductions once a person has voiced consent to the original representation. This simply veers too far by further muddying the waters and demonstrates the extent of our revision were we to apply a judicial construction.\\n\\u00b640. The extent of revision necessary to save Wis. Stat. \\u00a7 944.205(2)(a) would require us to adopt the role of the legislature. We decline to do so. Ours is not the proper forum for the lively debate and discourse necessary to reconcile the conflicting demands of the right to privacy and the right of free expression. We leave the drafting of a narrowly tailored statute to the legislature, and we refrain from adopting a judicial construction to cure the overbreadth of Wis. Stat. \\u00a7 944.205(2)(a). The State has thus failed to satisfy its burden of proving beyond a reasonable doubt that the statute survives constitutional scrutiny.\\n\\u00b6 41. In sum, we conclude that Wis. Stat. \\u00a7 944.205(2)(a) on its face is unconstitutionally over-broad because it prohibits protected expression under the First Amendment. Additionally, the statute is not susceptible to a limiting construction by this court. Because Stevenson was convicted under an unconstitutional statute, we reverse the judgment of conviction and remand the cause to the circuit court for re-sentencing on the charge of obstructing an officer.\\nBy the Court. \\u2014 The judgment of the circuit court is reversed and the cause is remanded.\\nAll future references to the Wisconsin Statutes are to the 1997-98 volumes unless otherwise indicated.\\nThe defendant appeals a judgment of the Circuit Court for Waukesha County, Donald J. Hassin, Judge, convicting him of two counts of making a videotape depicting a person in a state of nudity without the person's consent under Wis. Stat. \\u00a7 944.205(2)(a) and one count of obstructing a police officer under Wis. Stat. \\u00a7 946.41(1).\\nThis statute provides:\\n(2) Whoever does any of the following is guilty of a Class E felony:\\n(a) Takes a photograph o\\u00ed makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge or consent of the person who is depicted nude, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.\\nBecause we decide this case on overbreadth grounds, we do not reach the claim of unconstitutional vagueness under Wis. Stat. \\u00a7 944.205(2)(a). Additionally, we note that although Stevenson raised a vagueness claim before the court of appeals, he has not argued or briefed the vagueness challenge before this court.\\nThe State refers to a letter in the legislative drafting file for the statute and notes that the legislation was precipitated by an incident in the city of River Falls, in which an adult male secretly videotaped female foreign exchange students visiting or residing in his home while the students appeared undressed in the bathroom. See Letter of Chief of Police of River Falls to State Representative Sheila Harsdorf, October 11, 1993, Legislative Reference Bureau Drafting File for 1995 Wis. Act 249. The State notes that although the comments of those who propose legislation are not binding as legislative intent, the comments nevertheless represent persuasive authority as to the intent underlying the statute. State Pub. Defender v. Circuit Court for Dane County, 184 Wis. 2d 860, 868-69, 517 N.W.2d 144 (1994).\\nApparently, three states have enacted privacy statutes that contain similar language to Wis. Stat. \\u00a7 944.205(2)(a).\\nThe Missouri invasion of privacy statute, Mo. Ann. Stat. \\u00a7 565.253 (West 1999), provides in relevant part:\\n(1) A person commits the crime of invasion of privacy if he knowingly views, photographs or films another person, without that person's knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where he would have a reasonable expectation of privacy.\\nOregon's privacy statute, Or. Rev. Stat. \\u00a7 163.700 (1997) reads in pertinent part:\\n(1) Except as provided in ORS 163.702 [enumerated exceptions], a person commits the crime of invasion of personal privacy if:\\n(a) The person knowingly malees or records a photograph, motion picture, videotape or other visual recording of another person in a state of nudity without the consent of the person being recorded; and\\n(b) At the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy.\\nThe North Dakota statute addressing the possession or distribution of certain photographs or other visual representations, N.D. Cent. Code \\u00a7 12.1-31-08 (Michie 1997), states in relevant part:\\nA person is guilty of a class A misdemeanor if, knowing of its character and content, a person surreptitiously acquires and knowingly possesses or distributes any photograph or other visual representation that exhibits a nude or partially denuded human figure. . .without the individual's written consent. . . . This section does not apply to any book,. . .photograph, video recording, motion picture film, or other visual representation sold in the normal course of business through wholesale or retail outlets that possess a valid sales tax permit or used by a licensed attorney, attorney's agent, or any other person obtaining evidence for a criminal investigation or pending civil action, or by a medical professional or a peace officer acting within that person's scope of employment.\"}"

wis/11234297.json

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+"{\"id\": \"11234297\", \"name\": \"Beverly Hayen, Petitioner-Appellant, v. Barry Hayen, Respondent-Respondent\", \"name_abbreviation\": \"Hayen v. Hayen\", \"decision_date\": \"1999-12-23\", \"docket_number\": \"No. 99-1361\", \"first_page\": \"447\", \"last_page\": \"461\", \"citations\": \"232 Wis. 2d 447\", \"volume\": \"232\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:53:30.300554+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Vergeront, Roggensack and Deininger, JJ.\", \"parties\": \"Beverly Hayen, Petitioner-Appellant, v. Barry Hayen, Respondent-Respondent.\", \"head_matter\": \"Beverly Hayen, Petitioner-Appellant, v. Barry Hayen, Respondent-Respondent.\\nCourt of Appeals\\nNo. 99-1361.\\nSubmitted on briefs November 18, 1999. \\u2014\\nDecided December 23, 1999.\\n2000 WI App 29\\n(Also reported in 606 N.W.2d 606.)\\nOn behalf of the petitioner-appellant, the cause was submitted on the briefs of Julie L. Cabou, Milwaukee.\\nOn behalf of the respondent-respondent, the cause was submitted on the brief of Dennis M. McFarlin, Friendship.\\nA nonparty brief was filed by John S. Greene and Thomas Dosch, assistant attorneys general and James E. Doyle, attorney general.\\nBefore Vergeront, Roggensack and Deininger, JJ.\", \"word_count\": \"3364\", \"char_count\": \"20660\", \"text\": \"DEININGER, J.\\n\\u00b6 1. Beverly Hayen appeals an order granting a domestic abuse injunction against her husband, Barry Hayen. Beverly contends the circuit court erred when it refused her request for a two-year injunction and instead issued the injunction for only six months. She also argues that the circuit court erred when it declined to order the sheriff to assist in placing her in physical possession of her residence. We agree with both of Beverly's contentions. Accordingly, we reverse the order for an injunction and remand for the entry of an order consistent with the opinion which follows.\\nBACKGROUND\\n\\u00b6 2. Beverly petitioned the circuit court for a domestic abuse injunction against her husband, Barry, under \\u00a7 813.12, Stats. In her petition, she requested the court to enter a two-year injunction against Barry requiring him to (1) avoid her residence, (2) avoid contacting her, (3) refrain from committing acts of domestic abuse, and (4) avoid her place of work. She also asked the court to \\\"[djirect the sheriff to assist in placing me in physical possession of my residence.\\\"\\n\\u00b6 3. A family court commissioner heard Beverly's petition and issued a temporary restraining order against Barry, which included all of the relief for which Beverly had petitioned, including an order to the sheriff to assist in placing her in physical possession of her residence. Five days later, the circuit court conducted an injunction hearing, at which Beverly appeared pro se and Barry appeared with counsel. The court denied Beverly's request for a two-year injunction, and instead issued a six-month injunction which the court stated would apply to both Beverly and Barry. The court also declined to order the sheriff to assist in placing Beverly in physical possession of her residence.\\n\\u00b6 4. Beverly subsequently wrote to the court and requested that it reconsider certain terms of the injunction order. Specifically, Beverly asked the court to reconsider its decisions (1) to issue a mutual injunction, (2) to order the injunction for only six months, and (3) to decline her request for the sheriffs assistance in obtaining physical possession of her residence. In her letter, Beverly told the court that Barry had changed the locks, preventing her from gaining access to the residence. The court scheduled a hearing on Beverly's request, at which she again appeared pro se and Barry appeared with counsel. A different judge presided over the second hearing. Beverly informed the court that she had not yet commenced a divorce action but intended to do so \\\"as soon as I can come up with the money\\\" for an attorney. She also told the court that both she and Barry owned the residence.\\n\\u00b6 5. During the hearing, the court clarified that only Barry was subject to the injunction. It declined, however, to extend the six-month time limit on the injunction, stating that \\\"[ajlthough [Beverly] asked for two years, that is still a discretionary call by the court.\\\" The court also refused to order the sheriff to assist in placing Beverly in physical possession of her residence, concluding that physical possession of the home is a \\\"divorce consideration\\\" which should be decided in \\\"family court.\\\" The court entered an amended order for an injunction which did not differ materially from the original order. Beverly appeals the amended order.\\nANALYSIS\\n\\u00b6 6. This appeal involves issues of statutory interpretation, which are questions of law subject to our de novo review. See Truttschel v. Martin, 208 Wis. 2d 361, 364r-65, 560 N.W.2d 315, 317 (Ct. App. 1997). Our objective is to ascertain the intent of the legislature, and to discern it, we look first to the plain language of the statute. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563, 566 (1997). If the plain language of the statute clearly sets forth the legislature's intent, we look no further and simply apply the statute to the facts and circumstances before us. See Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519, 522 (1996).\\n\\u00b6 7. Beverly contends first that the trial court erred in refusing her request that the injunction be effective for two years. Beverly bases her contention on the language of \\u00a7 813.12(4)(c), Stats., which provides that an injunction issued under the statute is \\\"effective according to its terms, for the period of time that the petitioner requests,\\\" but not longer than two years. Beverly argues that under the plain language of this paragraph, the circuit court was required to grant the injunction for two years, as she requested. Barry responds, however, that the court retains discretion under \\u00a7 813.12(4)(c) to determine the appropriate time period for the injunction.\\n\\u00b6 8. We have already resolved this issue in Beverly's favor. See Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996). We concluded in Laluzerne that the language of \\u00a7 813.12(4)(c), Stats., \\\"clear[ly] and unambiguous[ly]\\\" establishes that a domestic abuse injunction is \\\"effective for the period of time the petitioner requests.\\\" Laluzerne at 188, 546 N.W.2d at 186. Thus, once a circuit court determines that it will issue a domestic abuse injunction, the court is required to issue the injunction for the length of time the petitioner requests. Beverly petitioned the court for a two-year injunction against her husband Barry, and the circuit court was required under the statute to grant relief for two years or not at all.\\n\\u00b6 9. Barry argues, however, that this conclusion renders the statute constitutionally infirm. He begins by noting that an injunction is an equitable remedy, and that courts inherently retain discretion , to grant and fashion equitable remedies. He contends that the duration of a domestic abuse injunction must therefore be committed to the discretion of the circuit court. According to Barry, if \\u00a7 813.12(4), Stats., is interpreted so as to remove this discretion, the statute is unconstitutional. Specifically, he contends that \\u00a7 813.12(4), if interpreted as unequivocally requiring the circuit court to grant a domestic abuse injunction for the period of time that a petitioner requests, violates a respondent's rights to a jury trial, to due process, and to equal protection of the law. We disagree on all three points.\\n\\u00b6 10. Whether a statute is unconstitutional is also a question of law which we decide de novo, and the party who makes the challenge bears the burden of showing that the statute is unconstitutional \\\"beyond a reasonable doubt.\\\" See State v. Akins, 198 Wis. 2d 495, 502-03, 544 N.W.2d 392, 395 (1996). Barry argues first that, if the circuit court has no discretion to determine the duration of an injunction, the statute converts what is otherwise an equitable proceeding into an \\\"action at law.\\\" He asserts further that all \\\"actions at law\\\" must be tried to a jury if the defendant/respondent requests, and that he was therefore entitled to have a jury determine whether Beverly had proven the grounds for issuing a domestic abuse injunction. The right to a jury trial, however, attaches only to actions at law that were \\\"known to the common law in 1848.\\\" See State v. Ameritech Corp., 185 Wis. 2d 686, 698, 517 N.W.2d 705, 709 (Ct. App. 1994). Thus, even if we were to accept Barry's premise that our interpretation of \\u00a7 813.12(4)(c), Stats., converts the proceeding into an \\\"action at law,\\\" because domestic abuse injunction proceedings were not \\\"known to the common law in 1848,\\\" respondents in these type of proceedings are not constitutionally entitled to a jury trial.\\n\\u00b6 11. Barry next contends that \\u00a7 813.12(4), Stats., violates his constitutional right to equal protection because it discriminates against respondents in domestic abuse injunction proceedings. Specifically, he asserts that respondents in domestic abuse injunction proceedings are denied \\\"the right to have the term of their injunction fashioned by the [circuit court] judge,\\\" whereas respondents in other types of injunction proceedings are accorded that right. According to Barry, the statute, under our interpretation, violates the equal protection clause's guarantee that \\\"those who are similarly situated will be treated similarly.\\\" See Thomas M.P. v. Kimberly J.L., 207 Wis. 2d 388, 397, 558 N.W.2d 897, 901 (Ct. App. 1996) (citation omitted). We disagree.\\n\\u00b6 12. The equal protection clause does not prohibit the legislature from enacting statutes that treat certain categories of people differently than others. See Village of Oregon v. Waldofsky, 177 Wis. 2d 412, 418, 501 N.W.2d 912, 914 (Ct. App. 1993). A statute will be upheld as constitutional as long as the classification has a \\\"reasonable basis\\\" and \\\"rests upon some ground of difference that bears a fair and substantial relation to\\\" the purpose behind the statute's enactment. Id. A statute violates the equal protection clause only if the legislature has made an irrational or arbitrary classification. See GTE Sprint Communications Corp. v. Wisconsin Bell, Inc., 155 Wis. 2d 184, 193, 454 N.W.2d 797, 801 (1990). Moreover,\\n[i]f any state of facts can reasonably be conceived to justify a statutory discrimination, it will not be set aside. If the legislative body has not set forth its rationale for creating a classificatory scheme it is the court's obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination.\\nSchramek v. Bohren, 145 Wis. 2d 695, 711, 429 N.W.2d 501, 507 (Ct. App. 1988) (citation omitted).\\n\\u00b6 13. We conclude that \\u00a7 813.12(4), Stats., does not violate Barry's right to equal protection because there is a reasonable basis for the legislature to treat parties in domestic abuse injunction proceedings differently than parties in other types of injunction proceedings. We noted in Schramek that, in enacting \\u00a7 813.12, the legislature acknowledged the unique nature of the crime of domestic violence, and it recognized that domestic abuse victims need particular protective measures:\\nIn 1979, our legislature acknowledged that domestic abuse was a serious statewide social concern which necessitated a comprehensive and informed response. Sec. 1, ch. Ill, Laws of 1979. It recognized the critical need for specialized assistance, not only to the victims of domestic abuse but also to the abusers. More resources had to be marshaled and new methods formulated to meet the challenge of this tragic social phenomenon. Id. As an additional means of alleviating the problem, the legislature enacted sec. 813.12, STATS. See sec. 19, 1983 Wis. Act 204.\\n[T]he state legislature created protective measures for those individuals who, as a member of either an adult family or a household, were domestically abused by other family or household members. Only individuals within precise settings who were victims of clearly defined physical abuse were deemed to receive protection by state action. The legislature sought to help both the abused and the abusers. The uniqueness of this relationship is obvious. Because of the sensitive nature of the circumstances in which this conduct arises, the procedural mechanisms were created to alleviate the inherent problem of preventing further abuse of family or household members. There is a reasonable basis for the legislature to create special procedures for these circumstances... .\\nSchramek, 145 Wis. 2d at 702, 711, 429 N.W.2d at 503-04, 507.\\n\\u00b6 14. We concluded in Schramek that the \\\"sensitive nature\\\" of the circumstances in which domestic abuse issues arise provides a reasonable basis for the legislature to treat respondents in domestic abuse injunction proceedings differently than defendants charged with battery in criminal proceedings. See id. at 710-11, 429 N.W.2d at 507. We now conclude that the nature of these circumstances also provides a reasonable basis for the legislature's decision to permit a domestic abuse victim, rather than the court, to determine the duration of protection from an abuser that may be necessary for the victim's health and well-being.\\n\\u00b6 15. Finally, Barry asserts that if \\u00a7 813.12(4), Stats., requires that the duration of a domestic abuse injunction must be determined solely by a petitioner's request, the statute violates substantive due process because it removes the circuit court's discretion to fashion injunctive relief on a case-by-case basis. Barry contends that a statute which essentially mandates a two-year injunction and does not allow a court to deter mine the amount of time necessary to reasonably protect a domestic abuse petitioner is arbitrary and capricious. Further, Barry contends that this statute does not bear a \\\"reasonable and rational relationship\\\" to the purpose or objective of its enactment. See Reginald D. v. State, 193 Wis. 2d 299, 307-08, 533 N.W.2d 181, 185 (1995) (citation omitted).\\n\\u00b6 16. Like his equal protection claim, Barry's substantive due process claim is without merit. We have discussed above why the legislature could reasonably conclude that parties in domestic abuse proceedings should be treated differently than parties in other actions for equitable relief. Those same considerations demonstrate that the procedures set forth in \\u00a7 813.12, Stats., bear a rational relationship to the purpose behind its enactment. See Schramek, 145 Wis. 2d at 711-12, 429 N.W.2d at 507 (\\\"Because of the sensitive nature of the circumstances in which this conduct arises,\\\" the legislature found it necessary to create \\\"special procedures\\\" to prevent \\\"further abuse of family or household members.\\\"). The legislature concluded, for example, that the nature of the circumstances made it necessary for a domestic abuse victim to be able to obtain relief promptly, and to do so on a relatively low threshold of proof. See \\u00a7 813.12(2m), (3) and (4), STATS.; and see note 3, above. Permitting the victim to specify the duration of the protection to be afforded him or her, not exceeding two years, is also responsive to the special circumstances surrounding domestic abuse, and hence is neither arbitrary nor capricious.\\n\\u00b6 17. A final issue remains. Beverly contends that the circuit court erred when it refused to order the sheriff to assist in placing her in physical possession of her residence. She again argues that the plain lan guage of the statute requires the court to order this assistance, and again, we agree. We conclude that \\u00a7 813.12(6), Stats., plainly requires the court, if it elects to grant an injunction and the petitioner so requests, to direct the sheriff s assistance in placing the petitioner in physical possession of his or her residence.\\n\\u00b6 18. Section 813.12(6)(a), Stats., states that \\\"[i]f an order is issued under this section, upon request by the petitioner the court or family court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence-\\\" (emphasis added). In interpreting statutory language, the general rule is that the word \\\"shall\\\" is presumed to be mandatory. See Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214, 217 (1978). Barry offers no reason why the general rule should not apply to \\u00a7 813.12(6)(a), Stats., and we conclude that the paragraph creates a mandate upon the court.\\n\\u00b6 19. We agree with the circuit court's observation that physical possession of the parties' residence is a \\\"divorce consideration\\\" that may be decided in \\\"family court.\\\" We also agree with Beverly, however, that \\u00a7 813.12(2)(b) and 767.23(lm), Stats., indicate the legislature's intent \\\"not to mix divorce relief with remedies designed specifically to end abuse,\\\" and vice versa. That is, the determinations made and the relief granted under \\u00a7 813.12, Stats., are separate and distinct from determinations and relief under ch. 767, but the statutes are not mutually exclusive. Nothing in \\u00a7 813.12, or in this opinion, should be viewed as interfering with a family court's authority to determine which party should have temporary possession of the residence during the pendency of a divorce action, if one is commenced, or how the parties' property might ultimately be divided upon divorce. See \\u00a7 767.23(l)(g) and 767.255, Stats.\\n\\u00b6 20. At the time of the hearings on Beverly's petition in this action, however, no family court had entered any order regarding occupancy of Barry and Beverly's residence, nor had either party commenced a divorce action. Beverly concedes, and we agree, that if she were restored to physical possession of the parties' residence with the sheriffs assistance under \\u00a7 813.12, Stats., and a family court were subsequently to award possession of the residence to Barry, Beverly \\\"would then have to make arrangements to leave.\\\" The injunction, if still in effect, would require Barry to avoid Beverly's new residence. Similarly, if a family court had awarded possession of the parties' residence to Barry prior to the injunction hearings under \\u00a7 813.12, those premises would no longer constitute Beverly's residence, and she would have no right under \\u00a7813.12(6) to the sheriff s assistance in obtaining physical possession of it.\\nCONCLUSION\\n\\u00b6 21. We conclude that the circuit court erred in refusing to issue an injunction for the length of time that Beverly requested, and in refusing to order the sheriff to assist in placing Beverly in physical possession of her residence. Accordingly, we reverse the circuit court's injunction order and remand for the-entry of an order consistent with this opinion.\\nBy the Court. \\u2014 Order reversed and cause remanded with directions.\\nA11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.\\nThe first court hearing was conducted by Reserve Judge James Rice, who was apparently sitting in the absence of Judge Polivka, who presided at the second hearing.\\nThe court may grant a domestic abuse injunction if it \\\"finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.\\\" Section 813.12(4)(a)3, Stats.\\nWe did not address \\\"the constitutionality of a statute that does not give the trial court discretion to determine the appropriate time period for the injunction\\\" in Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996), because the parties did not argue the issue. See id. atl88 n.2, 546 N.W.2d at 186.\\nThe sum total of Barry's argument on this issue is as follows. Whether an order for a respondent to \\\"avoid the petitioner's residence\\\" should be included in an injunction under \\u00a7 813.12(4), Stats., is discretionary with the court. And, \\\"[i]f the trial court declines to order injunctive relief imposing a restriction upon respondent to avoid petitioner's residence, then the enforcement assistance provided at sec. 813.12(6)(a) simply is not applicable.\\\" Assuming without deciding that these propositions are correct, they are irrelevant on the present facts: the trial court in this case did order Barry to avoid Beverly's residence as a part of the injunction it granted.\\nSection 813.12(2)(b), Stats., provides as follows:\\nA petition may be filed in conjunction with an action affecting the family commenced under ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or family court commissioner may not make findings or issue orders under s. 767.23 or 767.24 while granting relief requested only under this section....\\nSection 767.23(lm), Stats., in turn, provides:\\nIf a family court commissioner believes that a temporary restraining order or injunction under s. 813.12 is appropriate in an action, the court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the family court commissioner shall submit the motion to the court within 5 working days.\"}"

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+"{\"id\": \"11280260\", \"name\": \"Cawley, Respondent, vs. La Crosse City Railway Company, Appellant\", \"name_abbreviation\": \"Cawley v. La Crosse City Railway Co.\", \"decision_date\": \"1898-11-01\", \"docket_number\": \"\", \"first_page\": \"145\", \"last_page\": \"155\", \"citations\": \"101 Wis. 145\", \"volume\": \"101\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Cawley, Respondent, vs. La Crosse City Railway Company, Appellant.\", \"head_matter\": \"Cawley, Respondent, vs. La Crosse City Railway Company, Appellant.\\nOctober 14\\nNovember 1, 1898.\\nStreet railways: Injury to person driving upon track: Negligence: Contributory negligence: Failure to look and listen: Court and jury.\\nPlaintiff was traveling on the highway along defendant\\u2019s street-railway track where she could have seen and heard a car approaching from behind, for several hundred feet, had she looked and listened for that purpose. She said she did look and listen but did not see or hear a car. She turned and drove onto the track for the purpose of passing a wood wagon that was going the same way she was. Before she got by the wood wagon, so as to turn to the right off the track in front of it, she was struck by a car and injured. After the accident the car stood about two car lengths from where it struck plaintiff\\u2019s vehicle, and the wrecked vehicle was in the behind the wood wagon. The motorman sounded his signal bell before and after plaintiff turned toward the track, and as soon as he observed she was going on the track he turned off the current, set the brakes, and did all that he could to stop the car. Held:\\n(1) That there is no room on the facts to say defendant was negligent; and that the evidence conclusively shows contributory negligence of the plaintiff.\\n(2) That the rule of look and listen before going upon a railway track, whether steam or electric, is inflexible, and the nohobservance of it is negligence per se; that it is a rule of law,\\u2014 not a rule of evidence permitting a jury to say that there was or was not negligence where the duty was not performed.\\n(3) Where there is any credible evidence that, under any reason\\u2022able view of it, will admit of an inference either for or against the plaintiff, the rule that the proper inference to be drawn is a question for the jury should be firmly adhered to, but when the evidence is not susceptible of reasonable' conflicting inferences, the motion for a nonsuit or the direction of a verdict should be granted as a right of the moving party, and that implies a judicial duty on the part of the court to decide that way.\\n[Syllabus by MARSHALL, J.]\\nAppeal from a judgment of the circuit court for La Crosse 'county: O. B. Wxmax, Circuit Judge.\\nReversed.\\nAction to recover compensation for personal injuries alleged to have been caused by the negligence of defendant\\u2019s employees. The negligence complained of was running an electric car at a rapid rate, without ringing any bell or giving any warning of its approach. At the close of plaintiff\\u2019s case there was a motion fora nonsuit on the ground that the evidence in her behalf failed to show actionable negligence and did show that plaintiff carelessly placed herself in the place of danger where she was injured, by driving on the track when a rapidly approaching car, in plain sight and hearing, was in close proximity to her. The motion was denied. At the close of the evidence there was a motion by defendant\\u2019s counsel for the direction of a verdict, which was denied. After verdict for the plaintiff there was a motion for a new trial on the same grounds urged in favor of the two pi\\u2019evious motions, which was denied. All the rulings mentioned were duly excepted to. Judgment was rendered in plaintiff\\u2019s favor on the verdict, and the defendant appealed.\\nFor the appellant there was a brief by Losey & Woodward,, and oral argument by G. M. Woodward.\\nThey argued, among other things, that it was plaintiff\\u2019s duty to look and listen for a coming car. Lena v. Whiteonib, 96 Wis. 310; SeJvmolze v. G., M. da St. P. R. Go. 83 id. 659; Sclilwigen v. G., M. da St. P. R. Go. 90 id. 186; Uaetsch v. 0. <& Jt. W. R. Go. 87 id. 304; Schneider v. G., It. d\\u00e9 St. P. R. Go. 99 id. 318; Gardner v. J?., L. da N. R. Go. 97 Mich. 240; Gilmartin v. L. V. R. T. Go. 40 Atl. Rep. 322. This rule applies to electric as well as to steam roads. Young v. Citizens\\u2019 St. R. Go. 148 Ind. 54; Everett v. Los Angeles G. E. R. Co. 115 Cal. 105. It is negligence in law to get on the track in front of an approaching car. Weiss v. Metrrojpotitcm St. R. Go. 33. App. Div. (1ST. Y.), 221; Fenton v. Second Ave. R. Go. 126 RT. Y. 625; Thompson v. Buffalo R. Go. 145 id. 196; Rohe v. Third Ave. R. Go. 31 RT. Y. Supp. 797. Failure to see and hear approaching danger when there is nothing to obstruct sight or hearing raises the presumption that the look which plaintiff pretends to hare given when she trotted onto the track was not in fact given, or that it was given in such a hasty and careless way as to he useless. Gibncurtin v. L. V. R. T. Go. 40 Atl. Rep. 322; Roth v. S. E. Ba/rrett Mfg. Go. 96 Wis. 618; Yoimg v. Citizens\\u2019 St. R. Co. 148 Ind. 54; Herbert v. S. P. R. Go. 121 Cal. 227; Greengard v. St. Pcrnl C. R. Go. 75 RT. W. Rep. 221; Ring v. G., St. P. & K. G. R. Go. id. 492; Sclmeider v. 0., M. c& St. P. R. Go. 99 Wis. 378.\\nRay S. Reid, for the respondent.\", \"word_count\": \"3743\", \"char_count\": \"20514\", \"text\": \"MaRshall, J.\\nThe sole question involved on the various assignments of error which we deem necessary to consider is, Was there evidence, under the most favorable view that can be reasonably taken of it, to warrant a verdict for the plaintiff ? If there was not, and that situation was apparent at the close of plaintiff's case, the court erred in denying the motion for a nonsuit. If such was the situation at the close of the evidence on both sides, the motion for the direction of a verdict should have been granted, and the errors in denying the two previous motions of course were repeated in failing to set the verdict aside and grant a new trial.\\nThe circumstances of the accident, as shown conclusively by the evidence, are substantially as follows: It occurred in the early par\\u00a3 af the evening, a little after dark, on a railway track laid on a broad, level, raised street, not crossed by any other street for a distance of about 2,400 feet. On the -west side of the street were two electric railway tracks, occupying some twelve feet in width. .At a safe distance east of the tracks there was a macadamized roadway about twenty feet wide, specially fitted for public travel by vehicles, and east of that for a distance of some fifty feet the street was reasonably level and smooth so there was ample opportunity for teams to pass each other by night or day without driving onto the railway tracks. Plaintiff, while proceeding north, riding in a phaeton drawn by one horse, traveling on the macadamized roadway behind a heavy wood wagon, turned to the left and drove onto the railway track for the purpose of passing such wagon. The reason given for driving to the left instead of to the right was that plaintiff deemed the latter a little rough so that, had she turned that way, the parcels she had in the phaeton were liable to fall out. She drove at quite a brisk trot as she turned to the left and drove onto the railway track. She had proceeded, in endeavoring to pass the wood wagon, but a short distance when she was run into by a car going in the same direction. That caused the injury. She said she looked and listened for a car before driving onto the track, but did not see or hear any. The car was in perfect condition, being supplied with all the customary appliances, such as a brake, a suitable headlight, and a signal bell. It was running at a lawful rate of speed and the motorman was at his post, keeping a sharp lookout ahead. As he approached the teams driving along at the right of the track, and before plaintiff turned toward the track, he sounded his signal bell. As soon as he observed the movement of the horse toward the track he sounded the bell, and immediately turned off the current and did all that was in his power by applying the brake to stop the car. It nevertheless ran into the plaintiff's phaeton, throwing it off the track to the right, plaintiff at the same time falling out of the phaeton to the left. After the collision the car went about two or three car lengths and stopped. The wrecked phaeton was then found in the roadway behind the wood wagon. /\\nWe search in vain in the foregoing to find any support whatever for the charge of negligence contained in the complaint. In view of that, upon what theory the learned trial judg\\u00e9 submitted the case to the jury we are unable readily to perceive. Without any evidence whatever to sustain the charge of negligence made in the complaint, but, on the contrary, in the face of evidence showing that everything was done td guard against all dangers reasonably to have been apprehended respecting the personal safety of plaintiff as she was traveling on the road along the street-car track, and to warn her off the track when she turned to the left, and to avoid injuring her after she entered upon the track, it was left to the jury to say whether the defendant was culpably negligent or not, as if negligence under the circumstances were a disjDuted question of fact. The rule seems to have been overlooked that when the evidentiary facts are all undisputed and there is only room for one reasonable inference as to the ultimate fact in issue, it is for the court to draw the proper inference as a matter of law. There does not appear to be a scintilla of evidence tending to show negligence on the part of defendant. The only evidence in that regard, claimed by plaintiff's counsel, is that the motorman did not use reasonable diligence after he saw, or might have seen, the plaintiff turn toward the track. That is predicated solely on the theory that plaintiff's testimony shows, or tends to show, that she traveled the distance requisite to pass two or three teams before she was struck by the car. A careful examination of her evidence leads to the conclusion that the jury were not warranted in saying from it that plaintiff passed more than one team before the accident, while the undisputed fact in the case, that the wrecked phaeton was found immediately after the accident behind the wood wagon shows that it must have been struck very soon after the horse turned in upon the track and before it had time to pass such wagon far enough to turn to the right ahead of it. It is easy, to see how plaintiff might have been mistaken, in view of the very uncertain nature of her evidence and her interest in the result'of the trial; but the undisputed fact as to the location of the wrecked phaeton with reference to the \\\"wood wagon leaves no room for a reasonable belief other than that plaintiff had not passed fully by that wagon before the car reached her. All the evidence and all reasonable inferences therefrom are consistent with that theory, and with no other; so if there were anything in plaintiff's evidence, standing alone, tending to show that she had passed two or three teams before, and we say there is not, the rule of law often announced, that the testimony of an interested party contrary to the facts otherwise conclusively established in the case and all reasonable inferences from the situation disclosed by the evidence, does not raise a conflict requiring a finding by the jury. Flaherty v. Harrison, 98 Wis. 559; Badger v. Janesville Cotton Mills, 95 Wis. 599.\\nSo it follows, as before stated, that on the question of defendant's fault 'there was not only no evidence tending to establish the allegations of the complaint, but the evidence affirmatively established the contrary. The failure, therefore, to grant the nonsuit and to direct a verdict for defendant, and to set aside the verdict and grant a new trial, are errors too plain to require more to make them apparent than a mere statement of the facts-established by the evidence.\\nBut, if it were not for the failure to establish negligence of the defendant, plaintiff could not recover on account of her contributory negligence, which appears as a matter of law from the undisputed facts. The situation was such that it was plaintiff's duty, in the exercise of ordinary care, to look and listen before going upon the track. \\u00bfThat is con\\u2022.ceded. The court so instructed the jury in the following language: \\\" It is negligence as a matter of law for a person to drive upon the track of an electric railway without looking or listening for approaching cars; \\\" and again, \\\"If you find from the evidence that plaintiff went onto the railway track without looking carefully down the track for cars, then your verdict must be for defendant.\\\" The effect of those instructions, obviously intended, was that if the plaintiff knew, or might have known, by the use of her senses of seeing and hearing, that a car was approaching in dangerous proximity when she drove upon the track, she was guilty of contributory negligence, precluding a recovery. Thai is the law respecting the duty of persons to avoid danger from injury upon electric railway tracks, as well as upon steam railway tracks, as is abundantly shown by cases cited in defendant's brief. Young v. Citizens' St. R. Co. 148 Ind. 54; Everett v. Los Angeles C. E. R. Co. 115 Cal. 105; Hall v. West End St. R. Co. 168 Mass. 461. See, also, Omslaer v. Pittsburg & B. T. Co. 168 Pa. St. 519; Flanagan v. People's P. R. Co. 163 Pa. St. 102; Henderson v. Detroit C. St. R. Co. (Mich.), 74 N. W. Rep. 525; Blaney v. Electric T. Co. 184 Pa. St. 524; McQuade v. Metropolitan St. R. Co. 17 Misc. (N. Y.), 154; Booth, St. Ry. Law, \\u00a7 311, 312; Kane v. People's P. R. Co. 181 Pa. St. 53. In Omslaer v. Pittsburg & B. T. Co., supra, it is said that the rule of \\\" look and listen \\\" before attempting to cross the tracks of a steam railroad is inflexible, and that the nonobservance of it is negligence per se. The rule is just as applicable to the crossing of a \\u2022street-railway track operated by a cable or electricity, and we need not go outside of our own court to find that extension of it. In Johnson v. Superior R. T. R. Co. 91 Wis. 233, the present chief justice said, in effect, that if a person drive upon a street-railway track without looking for approaching cars, and receive an injury, and the facts in that regard appear conclusively in a subsequent action by the injured party against the railway company for damages, it is the duty of the court to nonsuit the plaintiff or direct a verdict in favor of the defendant.\\nThe theory upon which the court sent this case to the jury on the subject of contributory negligence manifestly was that, conceding the rule of law requiring plaintiff to look and listen, her testimony that she did so was sufficient to require the jury to find where the trouble lay, as if it were permitted to them to say on such evidence that she did in fact look and listen and yet did not see or hear the car that was unquestionably in plain sight and hearing. In that there was a failure to observe the limits beyond which a jury cannot go. They cannot_ go beyond the boundary of reasonable probabilities in determining facts from evidence without going into the realms of conjecture or perversity. This court has often held that the rule of law that requires a person to look and listen before going upon a railway track requires him to see and hear an approaching car if it is so located as to be plainly within view and hearing; that evidence of a person so circumstanced, that he looked but did not see, or listened yet did not hear, the car, if believed at all, is only to establish contributory negligence by showing that he knowingly placed himself in a place of danger. Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378; Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123; Haetsch v. C. & N. W. R. Co. 87 Wis. 304. In Burke v. N. Y. C. & H. R. R. Co. 73 Hun, 32, the court said, if a person looks he is supposed to do so for the purpose of seeing, and if the object is in plain sight and he apparently looks but does not see it, it is manifest that he does not do what he appears to do and has not complied with the rules of law. On the same subject in Young v. Citizens' St. B. Co. 148 Ind. 54, the court, by Mr. Justice McCabe, stated the rule thus: \\\"If a traveler by looking could have seen the approaching train in time to escape, it will be presumed, in case he is injured by a collision, either that he did not look, or if he did look that he did not heed what he saw. Such conduct is negligence per seAnd again, the same court, in Cones v. C., I., St. L. & C. R. Co. 114 Ind. 328, further emphasizing the rule as one of law,, said: \\\"The law will presume that he saw what he could have seen if he had looked, and heard what he could have heard if he had listened.\\\" In Blaney v. Electric T. Co. 184 Pa. St. 524, the supreme court of Pennsylvania used language quite as strong, as witness the following: \\\" \\\"When a person places himself in danger, and is struck by a car on a road that is in plain sight and hearing, the unavoidable inference is that he did not look for a car when ordinary intelligence and prudence disclosed that there might be one, or, seeing one perilously near him, placed himself in its way.\\\"\\nSo we may say that the duty is absolute to look and listen before going upon either a steam railroad track or an electric street-railway track, and to see and hear an approaching car, if within plain view and hearing to a person exercising his senses of hearing and seeing with ordinary prudence to detect it, having regard for the dangers reasonably to be apprehended, and that failure to perform that duty, or, after-performing it, to keep out of the region of danger, is negligence per se; that it is not a mere rule of evidence which a jury may be permitted to consider, and say there was or was not negligence in a given case, according to their notions,, but that it is a rule of law to be applied by the court when the facts are undisputed, and by the jury under the direction of the court when the facts are disputed. Thus far, at least, the law-of negligence has proceeded in the natural process of development, through the wisdom of courts in adapting old principles to new conditions brought about by the means-of rapid transit through populous districts, demanded by the times, and the dangers incident thereto, and the mutual obligations of the various members of the community to shape their conduct with reference to the circumstances surround ing them and administering daily to their comfort, prosperity, .and happiness. The bench and bar, and litigants as well, will partake of benefits that unquestionably flow from having definite and certain rules of law so far as practicable on this most important branch of jurisprudence recognized and enforced.\\nCandor compels us to say that in this case the learnqd trial court appears to have shifted a duty onto-the jury which was plainly judicial, and when they failed to discharge it properly, allowed the result to stand as the law of the case. The jury did not find the fact because there was no controversy in that regard. They said that conduct on the part of defendant was actionable negligence, and conduct on the part of plaintiff was consistent with ordinary care, when the proper application of well-settled rules of law would have led to a contrary result.\\nThe peculiar circumstances of this case move us to reiterate what has often before been said by this court, that though the rule that where there is any credible evidence which, under any reasonable view of it, will sustain a recovery, and there is opposing evidence, it is for the jury to say where the truth lies, should be firmly adhered to, where the evidence is clearly susceptible of only one reasonable inference, the motion for a nonsuit, or the direction of a verdict accordingly, should be granted as a matter of right, which implies a judicial duty to decide that way and hot to abrogate the judicial function and shift it onto the jury. Finkelston v. C., M. & St. P. R. Co. 94 Wis. 270. A proper administration of justice requires that such a situation should be met and the duty involved be discharged as contemplated by our judicial system, just as much as that the province of the jury to decide the facts from the evidence, where there is any conflict in that regard, should not be invaded by the court. The scope of judicial duty, and of that of the jury as well, is clearly marked, and a failure to maintain the integrity and inviolability of either is subversive to the system itself, and tends to throw doubt upon its efficacy to secure the highest attainable degree of justice between individuals, and to promote the ends of good government.\\nBy the Gourt.\\u2014 The judgment of the circuit court is reversed, and the cause remanded for a new trial.\"}"

wis/11281396.json

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+"{\"id\": \"11281396\", \"name\": \"Buck, Respondent, vs. Pond, Appellant\", \"name_abbreviation\": \"Buck v. Pond\", \"decision_date\": \"1905-12-12\", \"docket_number\": \"\", \"first_page\": \"382\", \"last_page\": \"385\", \"citations\": \"126 Wis. 382\", \"volume\": \"126\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:34:40.811889+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Buck, Respondent, vs. Pond, Appellant.\", \"head_matter\": \"Buck, Respondent, vs. Pond, Appellant.\\nNovember 16\\nDecember 12, 1905.\\nTendor and purchaser of land: Specific performance: Incomplete contract: Recovery for labor, etc., expended on land.\\n1. Where a contract for the sale of land contemplates or provides for deferred payments or the giving of credit for a part of the purchase money, hut the times when such deferred payments are to he made are not fixed, the contract is uncertain and incomplete and cannot be specifically enforced.\\n:2. One who improves a tract of land in pursuance of a contract for the purchase thereof which, by reason of indefiniteness, cannot be specifically enforced, is entitled to recover for his labor and materials expended upon the land at the owner\\u2019s implied request.\\nAppeal from a judgment of the circuit court for Marquette county: E. Ray SteveNS, Circuit Judge.\\nAffirmed.\\nThis is an action for the value of services performed and money expended by ithe plaintiff in clearing, breaking, and fencing a forty-acre tract of land belonging to the defendant. The answer of the defendant admitted the ownership of the land, and alleged that,\\\" before the performance of the labor and the furnishing of materials by the plaintiff, the defendant \\u2022 sold the premises to the plaintiff by a valid contract of sale, which the plaintiff failed to perform. The evidence showed that the plaintiff and defendant, in October, 1902,'made a bargain for the purchase of the land in question by the plaintiff of the defendant, and that the defendant delivered to the plaintiff the following written memorandum of the bargain:\\n\\u201cWestfield, Wisconsin, October 21st, 1902.\\n\\u201cI agree to give a land contract to Chandes K: Bucle for my forty of land .on Section 19, T. 17, R. 7, for $125, one hundred and twenty-five dollars, with int. when he fences and breaks at least fifteen acres and pays me $25 down, interest to commence now at six per cent. The $25.00 to be paid on or before January 1st, 1904, with interest.\\n\\u201cSlME\\u00d3N POND.\\u201d\\nIt further appeared that the plaintiff went into possession of the land, and grubbed and broke a part thereof, paid taxes thereon for one year, and built a fence; and that after he had broken seventeen acres he offered to pay the defendant $25 with interest, and demanded a land contract, and the defendant refused to comply and told the plaintiff he had sold the land to other parties. It further appeared that at the time of this demand the defendant had in fact deeded the land to one Blackburn, who had taken possession thereof. Upon this evidence the court directed a verdict for the plaintiff for the value of the labor performed and materials furnished, and 'from judgment upon the verdict the defendant appeals.\\nEor the appellant there was a brief by Buchanan Johnson and Kronshage, McGovern & Corrigan, and oral argument by W. D. Corrigan.\\nTo the point that the written memorandum itself could be enforced and that the so-called defect as to the time of payment in the land contract is not fatal, they cited Waterman v. Dutton, 6 Wis. 265; Nucid v. Wells, 11 Wis. 407; Radfield v. BaHlett, 66 Wis. 634; Bartz v. Paff, 95 Wis. 95; School Disi. No. \\u00a7 v. Macloon, 4 Wis. 79; Rusel v. Watson, L. N. 11 Ch. Div. 129; Britton v. Erickson, 80 Wis. 466, 468.\\nFor the respondent there was a brief by P. Q. OoTlip and Qoggms & Brazeau, and oral argument by F. W. Brazeau.\", \"word_count\": \"1068\", \"char_count\": \"6113\", \"text\": \"WiNsnow, T.\\nThe defendant's claim is that the evidence shows that the plaintiff went into possession of the premises and performed the labor for which he sues under a valid and enforcible contract for the sale of the land, and that hence the plaintiff's remedy,is by action to enforce the contract and not by action for the value of labor performed and materials furnished. Cameron v. Austin, 65 Wis. 652, 27 N. W. 622. This claim was rejected by the trial court, and we think rightly so. Specific performance of a contract will not be decreed unless its essential terms are clearly and definitely expressed. Courts will enforce a contract already made, but will not supply material and missing portions and thus at the same time malee as well as enforce a contract. Where a contract contemplates or provides for deferred payments, or the giving of credit for a part of the purchase money, the times when such deferred payments are to be made are essential parts of the contract, and, if such times be not fixed, the contract is uncertain and incomplete and cannot be enforced. Schmeling v. Kriesel, 45 Wis. 325. The memorandum before us in the present case very clearly contemplates that there was to be credit given for $100 of the purchase price; but it is absolutely silent as to the term of that credit, hence it comes within the rule of the case last cited.\\nNut the appellant claims that, even if there was no valid written contract, still, if there was a definite parol contract under wbicb tbe plaintiff went into possession and performed tbe labor, it was enforcible under familiar rules of law, and be further claims that be offered to show such a parol contract and that tbe evidence was rejected. Examination of tbe case shows that there was no such offer. Tbe defendant was asked what tbe agreement be made with tbe plaintiff was, and an objection to bis statement because it was not tbe best evidence was sustained. He then stated that be bad seen tbe writing (wbicb was evidently tbe memorandum aforesaid) before, and that \\\"that is tbe agreement that I gave Mr. Bucle in tbe sale of this land.\\\" There was no intimation that there was any oral agreement differing from or in addition to tbe written memorandum, and there was no offer to prove any such oral agreement.\\nIt is claimed that tbe doctrine of tbe Schmeling Case was overruled in tbe case of Hadfield v. Bartlett, 66 Wis. 634, 29 N. W. 639, but we are unable to see bow this claim has any foundation.\\nThere being no contract wbicb tbe plaintiff could enforce for tbe conveyance of tbe land or tbe execution of a land contract, be was clearly entitled to recover for bis labor and materials expended upon tbe defendant's land at bis implied request.\\nBy the Oowrt. \\u2014 Judgment affirmed.\"}"

wis/11282355.json

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+"{\"id\": \"11282355\", \"name\": \"Coppins, Respondent, vs. Town of Jefferson, Appellant\", \"name_abbreviation\": \"Coppins v. Town of Jefferson\", \"decision_date\": \"1906-01-09\", \"docket_number\": \"\", \"first_page\": \"578\", \"last_page\": \"587\", \"citations\": \"126 Wis. 578\", \"volume\": \"126\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:34:40.811889+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Coppins, Respondent, vs. Town of Jefferson, Appellant.\", \"head_matter\": \"Coppins, Respondent, vs. Town of Jefferson, Appellant.\\nDecember 15, 1905\\nJanuary 9, 1906.\\nHighways: Injury from obstruction near traveled trade: Contributory negligence: Knowledge of defect: Deviation from traveled way: Instructions to jury: \\u201cOrdinary care.\\u201d\\n1. In an action for injuries sustained by plaintiff while driving at night by reason of the wheels of his vehicle striking an obstruction within the limits of the highway and close to the traveled track, it appeared that plaintiff knew of the obstruction, but there was evidence tending to show that it was so dark that neither the obstruction nor the exact course of the horse could easily be observed, that he supposed he had passed the obstruction, and that he had been engaged in conversation with a friend who was following in another vehicle. Held, that it was a question for the jury whether plaintiff was negligent in not paying more efficient attention to the defect.\\n2. An instruction in such action, that \\u201cif a traveler leaves a traveled track which is in a reasonably safe condition, without cause or necessity therefor, and goes outside thereof, and thereby receives an injury from some cause outside of the \\u2022 traveled track, he will he deemed guilty of contributory negligence,\\u201d was misleading and erroneous. Such rule is applicable only to the case of an actual leaving of the traveled way \\u2014 voluntarily and without reasonable cause turning aside and going wholly or substantially out of such way, \\u2014 resulting in an injury by reason of the existence of an object not rendering the traveled track itself unsafe.\\n3. A definition of ordinary care as \\u201csuch care as persons 'of ordinary prudence and intelligence exercise under the same or similar circumstances,\\u201d is held not to have been erroneous because of the failure to use the word \\u201cusually\\u201d or other word of similar import before the word \\u201cexercise,\\u201d since the expression used suggests by reasonable, if not necessary, inference the idea of the usual conduct of such persons.\\n4. Failure to instruct the jury as to the burden of proof is not error whei\\u2019e m\\u00a1> instruction on the subject is requested.\\n6. Eefusal to give requested instructions upon subjects fairly covered by the general charge is not error.\\nAppeal from an order of the circuit court for Jefferson county: B. E. Dunwiddie, Circuit Judge.\\nAffirmed.\\nAction to recover for personal injuries alleged to have been caused by the negligence of the defendant in respect to the safety of one of its highways.\\nThe defect complained of consisted of a pile of stone within the limits of the highway on the westerly side of the traveled track so near thereto that, in view of the fact that such track necessarily diverged somewhat easterly from a direct line in passing the same, a traveler driving a horse, or horses, drawing a vehicle at that point, in the nighttime would be liable to cause a collision between such vehicle and the obstruction. Plaintiff claimed that such condition of the highway had existed for more than a year prior to the 10th day of October, 1903 ; and that in the nighttime of said day, while he, in the exercise of ordinary care, was driving a horse drawing a road cart, in which he was riding, by the obstruction, the right wheel of the cart collided with a stone forming part of such obstruction, which stone was within a few inches of the wheel track, by reason of wbicb be was thrown upon tbe stone pile and dragged by tbe borse a considerable distance, severely injuring bim. Tbe facts in regard to tbe matter were stated in tbe complaint by proper allegations with all essentials to make out a cause of action against tbe defendant. Tbe latter answered, denying that plaintiff was injured through any negligence on its part, and pleaded contributory negligence.\\nTbe cause was submitted to tbe jury with instructions, resulting in these special findings: (1) Tbe highway at tbe time and place where plaintiff was injured was not reasonably safe for public travel by persons in tbe exercise of ordinary care. (2) Tbe insufficient condition of tbe highway was tbe proximate cause of such injury. (3) Want of ordinary care on tbe part of tbe plaintiff contributed to bis injury. (4) Two thousand dollars will be required to compensate plaintiff for bis injury.\\nPlaintiff moved tbe court to set tbe verdict aside and grant a new trial for errors in giving and refusing instructions. Tbe motion was granted and tbe defendant appealed.\\nB. B. Ki/rklcmd, for tbe appellant.\\nEor tbe respondent there was a brief by Rogers & Rogers, attorneys, and Burr W. Jones, of counsel, and oral argument by W. H. Rogers and Mr. J ones.\", \"word_count\": \"3113\", \"char_count\": \"17960\", \"text\": \"Maeshall, J.\\nTbe first proposition submitted for consideration on behalf of appellant is this:\\n\\\"Notwithstanding tbe fact, if it be a fact, that tbe trial court committed reversible error in its charge to tbe jury on tbe subject of contributory negligence, still tbe motion of defendant for judgment should have been granted for tbe reason that tbe evidence shows that tbe plaintiff was guilty of contributory negligence as a matter of law.\\\"\\nThat is grounded on tbe undisputed evidence that respondent was perfectly familiar with tbe condition of tbe highway- and did not bear it in mind as be approached tbe stone pile and drive bis borse with a view of avoiding tbe danger of bis- vehicle colliding therewith. The rule is invoked that if a person using a public way knows of a dangerous defect therein and is injured by coming in contact therewith notwithstanding such knowledge, the legal presumption of fact, in the absence of evidence sufficient in some reasonable view thereof to rebut it, is that he either remembered such defect or was guilty of want of ordinary care in not doing so, and that the injury happened by reason of his contributory negligence. Cuthbert v. Appleton, 24 Wis. 383; Wheeler v. Westport, 30 Wis. 392; Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40; Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322; Collins v. Janesville, 111 Wis. 348, 356, 87 N. W. 241, 1087; Devine v. Fond du Lac, 113 Wis. 61, 66, 88 N. W. 913; Seaver v. Union, 113 Wis. 322, 330, 89 N. W. 163; Collins v. Janesville, 117 Wis. 415, 427, 94 N. W. 309.\\nAs said in the first Collins Case, the presumption mentioned is one which yields readily to any reasonable explanation of the failure to avoid the defect, so as to carry the case to the jury on the subject of contributory negligence. Perhaps as good an illustration of the rule last stated as can be found in any case is in Crites v. New Richmond, supra. A person of mature years walking upon the sidewalk in the daytime stepped into a hole in the decking and was injured. He was perfectly familiar with the defect and considered it dangerous. Had he paid attention to the matter as he proceeded the hole could not have escaped his notice. He was caused, momentarily, to direct his attention away from his line of travel by reason of a person calling to him from the opposite side of the street. While his attention was so diverted the accident happened. In the second Collins Case the person received her injury by stepping into a hole in a sidewalk while traveling thereon. She was familiar with the defect and it would necessarily have attracted her attention if she had looked where she was going. Her attention was momentarily diverted by endeavoring to discover where a child had gone, who, an instant before, was on the walk before her but had disappeared. Further, she thought the defect was a little farther on.\\nIn view of the above authorities it is considered that there was evidence from which the jury might fairly have decided that respondent was excusable for not paying more efficient attention to the defect causing his injury. The obstruction was so near the wheel track that if the horse in passing traveled on the side next thereto the wheel on such side was liable to leave the track and reach it. It was a dark night, \\u2014 so-dark that a person was liable to- drive past the obstruction without observing it. One circumstanced as respondent was in. approaching the defect could not readily have observed nearby objects with reasonable distinctness. He did not forget the existence of the defect. ITe was mistaken as to whether he had passed it or not. For some time before the accident he had been, at intervals, engaged in conversation with a friend, who was following him driving a horse drawing a covered carriage. Those circumstances, it seems, amply justified the court in sending the case to the jury. True, respondent's attention was not diverted from the region of the defect by anything outside thereof, but the conditions were such that neither the obstruction nor the course of the horse, as regards keeping exactly in the proper line of travel so as to avoid it, was readily observable. By reason of the darkness opportunity for observing the obstruction or the exact course of the horse was efficiently interfered with, and there was interference also as to observing other objects, which was liable to cause a mistake on the part of respondent respecting his exact location with reference to the defect. All these matters must for the purposes of testing the error assigned be considered as established, since the jury might have so found the facts from the evidence. Probably it is within the experience of most men who have driven a single horse on a country road on a dark night that the animal would frequently take one side of the track or the other causing the vehicle upon the side of divergence to leave the track without the driver being immediately conscious of it, rendering liable a collision with obstructions slightly outside thereof, in case of there being any.\\nCounsel's next and only other proposition may be stated thus: The court did not commit harmful error in respect to charging on the subject of contributory negligence. Therefore, conceding for the purposes of argument that there was evidence sufficient to carry the question in that regard to the jury, defendant's motion for judgment on the verdict should have been granted.\\nIn answer to that respondent's counsel point to this language of the court's instructions as fatally erroneous:\\n\\\"By the words 'ordinary care,' as used in this question, is meant such care as persons of ordinary prudence and intelligence exercise under the same or similar circumstances.\\\"\\nThe suggested infirmity consists of failure to use the word \\\"ordinarily,\\\" or \\\"usually,\\\" or \\\"customarily,\\\" or some word of like import after the word \\\"intelligence.\\\"\\nCounsel refers to Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946, as justifying his contention. We are unable to discover that the citation supports such contention. The language in that case is this:\\n\\\"If you find that a person of ordinary intelligence and prudence would do what the plaintiff did, then she was free from contributory fault.\\\"\\nIt was said, among other things, the fact that a person of ordinary care on a particular occasion assumed a risk and received a personal injury would not suggest necessarily that his conduct was consistent with ordinary prudence. The court gave as the correct test as to any particular situation this: \\\"Would a person of ordinary intelligence and prudence under the same or similar circumstances so conduct himself?\\\"\\nNow, it may be that the better way to define ordinary eare is by some phrasing that will expressly convey the idea of the ordinary conduct of the great mass of mankind. It is believed that in most of the decisions here, where attempts were made to correctly define the term, that element has been expressly incorporated in the language used. The following are instances: Duthie v. Washburn, 87 Wis. 231, 58 N. W. 380; Nass v. Schulz, 105 Wis. 146, 81 N. W. 133; Schrunk v. St. Joseph, supra; Rylander v. Laursen, 124 Wis. 2, 102 N. W. 341; Pumorlo v. Merrill, 125 Wis. 102, 103 N. W. 464; Eastern R. Co. v. Tuteur, 127 Wis. -, 105 N. W. 1067. The following are instances where that was not done: Dreher v. Fitchburg, 22 Wis. 675; Olwell v. Milwaukee St. R. Co. 92 Wis. 330, 66 N. W. 362; Hanlon v. Milwaukee E. R. & L. Co. 118 Wis. 210, 95 N. W. 100; Dehsoy v. Milwaukee E. R. & L. Co. 110 Wis. 412, 85 N. W. 973. In Pumorlo v. Merrill, supra, those cases are referred to and instructions not having therein, expressly, the element of the ordinary conduct of the ordinarily prudent man were approved as free from harmful error, but it was said that ordinary care in the abstract is such care as the great mass of mankind generally exercise, and that as applied to officers it is the care generally exercised by such officers as a class.\\nA general review of the subject shows that the court has uniformly held that the element under discussion must be present, expressly or impliedly, in any accurate definition, but that the language \\\"such care as ordinarily careful persons exercise\\\" suggests by reasonable, if not necessary, inference the idea of the conduct of such persons generally. If one wishes to define ordinary care in respect to a person's conduct in any particular circumstance, leaving nothing to be inferred, it is believed that this language would fully meet the case: Such care as the great mass of mankind ordinarily exercise under the same or similar circumstances.\\nRespondent's counsel insist that the court erred in failing to instruct the jury on the subject of the burden of proof. No instruction in that regard was requested. That being the case, under the established practice the failure to do so must be deemed to have been waived. Seyring v. Eschweiler, 85 Wis. 117, 55 N. W. 164; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171.\\nA further suggestion is made that prejudicial error was committed in refusing to give a specific requested instruction to the effect that defendant was bound to keep the highway _ reasonably safe for ordinary travel by persons using ordinary care by night as well as by day; and further by failing to :give a specific requested instruction to the effect that plaintiff's knowledge of the highway did not create any conclusive presumption of want of ordinary care in failing to avoid it. In our view, both ideas were fairly covered by the general charge.\\nThis instruction is called to our attention as one which would have worked a reversal of the judgment, had one been rendered in defendant's favor:\\n\\\"If a, traveler leaves a traveled track which is in a reasonably safe condition, without cause or necessity therefor, and \\u2022goes outside thereof, and thereby receives an 'injury from some cause outside of the traveled track, he will be deemed .\\u2022guilty of contributory negligence.\\\"\\nThe court in giving that probably had in view language in Boltz v. Sullivan, 101 Wis. 608, 615, 77 N. W. 870, without appreciating the fact that as there used it referred to a situation where the injury was not caused by colliding with something which was a defect in the highway, but by leaving the highway, which was reasonably safe, and thereby reaching the obstruction. The instruction given was harmful in two aspects. It is not the law that the mere leaving of the traveled track, which is reasonably safe, raises a presumption of negligence. Under any one of many conditions that could be suggested, such mere deviation from the customary and usual route of travel might not suggest any negligence whatever. In the instant case the fact that the horse turned aside from the course which would have kept the wheels of the vehicle in the wheel tracks did not of itself suggest negligence-of the driver, necessarily, since it was so dark that he most likely depended somewhat on the fidelity of the horse to keep-in the proper course, and there was no actual leaving of the highway to reach the defect.\\nThe rule is, as respondent's counsel suggest, that it is the voluntary turning aside by a traveler from the customary and reasonably safe route of travel prepared for that purpose, to one which is unsafe, or in a course where there is no traveled track at all, and thereby colliding with some object or in some other way causing a personal or other injury, which creates-a presumption of fact that the person guilty of the fault failed to exercise ordinary care. It is where a person with some degree of deliberation chooses between the safe and the unsafe way, or carelessly chooses the latter, that he is at fault. Welsh v. Argyle, 89 Wis. 649, 62 N. W. 517; Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514, and similar cases. Charging on the subject of leaving the track at all, as if the rule as to choosing between two routes of travel, or the rule as to actually leaving the traveled track and reaching the object immediately causing the injury as in Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656, was applicable, was highly misleading, as the facts of the case did not call for any such instruction. Where a highway is not reasonably safe because of some obstruction so near to the traveled track that a slight deviation of a vehicle drawn by a horse, from the proper course, such as might probably occur by the mere shying of the animal or his failing to make a sharp curve in the road so as to keep the wheels of the vehicle in their proper places would reach it, such a deviation is not a leaving of the track prepared for travel. The rule which the learned court gave to the jury only applies in a case of an actual leaving of the place prepared for travel \\u2014 voluntarily and -without reasonable cause turning aside and going wholly or substantially out of such way, \\u2014 resulting in an injury by reason of the existence of an object not rendering the traveled track itself unsafe.\\nSome other matters are referred to and discussed in the briefs of counsel which do not seem to he of sufficient moment to require treatment in this opinion. Enough has been said to indicate clearly that the order setting aside the verdict and granting a new trial cannot be regarded as erroneous.\\nBy the Court. \\u2014 The order is affirmed.\"}"

wis/11285334.json

@@ -0,0 +1 @@
+"{\"id\": \"11285334\", \"name\": \"Johnston vs. The City of Oshkosh and another\", \"name_abbreviation\": \"Johnston v. City of Oshkosh\", \"decision_date\": \"1866-06\", \"docket_number\": \"\", \"first_page\": \"184\", \"last_page\": \"187\", \"citations\": \"21 Wis. 184\", \"volume\": \"21\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:48:29.101355+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johnston vs. The City of Oshkosh and another.\", \"head_matter\": \"Johnston vs. The City of Oshkosh and another.\\nAssessments for city improvements; work let without notice to the oioner.\\nPleading : averment that land was exempt from taxation.\\n1. Where, by a city charter, lot owners are to be notiSed to do work on streets adjoining their lots, before contracts for suck work are let, an assessment upon the lot to pay for the work done by contract without such notice, is invalid.\\n2. A provision in such charter that the directions therein given for assessing lands and levying and collecting taxes and assessments, shall be deemed only directory, and no error or informality in the proceedings of the officers entrusted with the same, not affecting the substantial justice of the tax itself, shall affeet its validity, held to apply only to, proceedings after the debt or liability for which a tax is levied, has been lawfully created. In case of such failure to notify the lot owner, no liability on his part is created.\\n8. An answer to a claim of tax title (under ch. 22, Laws of 1859), that the land was not liable to taxation, without specifying the ground of exemption, heldh ad on demurrer.\\nAPPEAL from the Circuit Court for Winnebago County.\\nAction to establish the plaintiff\\u2019s title to a lot in tbe city of Oshkosh, under a tax deed executed by the city treasurer in 1864, upon a sale in 1859, for the taxes assessed in 1858. The defendant Stringham was the owner of the lot when the tax was assessed, but in 1860 conveyed it to the Oity of Oshkosh, by warranty deed. The defendants answered, 1. That the lands were not liable to taxation, at the time when, &c.; but no cause of exemption is specified. 2. That all taxes of 1858 on said lot were paid before said sale. 3. That the sale was \\u201c for the non-payment of an alleged improvement tax; that no notice was ever given to the defendant Stringham, who was the owner of said premises, they being unoccupied at the time, requiring him to do any wort, for the non-performance of which by him said lands would be liable to assessment for the year 1858 and that no tax for improvements was assessed or levied on the said premises for the said year 1858.\\nA general demurrer to the first and third defenses was sustained ; and defendants appealed.\\nBari P. Finch, for appellant:\\n1. The first defense is in the language of the statute (sec. 38, ch. 22, Laws of 1859), and is sufficient. Jarvis v. Hamilton, 16 Wls., 574: Schroeppel v. Corning, 2 Corns., 132 ; Hunt v. Butcher, 18 How., 538; Footv. Harris, 2 Abb., 454; The People v. Bennett, 6 id., 343 ; Ford v. Babcock, 2 Sandf., 518, 523 ; Golev. Jessup, 6 Seld., 96; Bellv. Yates, 33 Barb., 627. If the defense is not sufficiently definite and certain, the remedy is by motion and not by demurrer. Flanders v. Me Vichar, 7 Wis., 372 ; Bachv. Bell, id., 433.\\nL. W. Halsey, for respondent,\\ncontended that the first defense is bad, not stating any facts, but merely a conclusion of law. 1 Ohitty on PL, 213-14, 540 ; Y\\u00e1nSantv. PL, 355-6, 249, 253-4, 265 ; 2 Duer, 673 ; 4 How. Pr., 502, 98 ; 5 id., 14; 13 Barb., 147; 17 id., 482; 1 Code R, 91. 2. Hnder that provision of the charter which declares that no error or informal ity in. the proceedings, &c., not affecting the substantial justice of the tax, shall affect its validity, it is doubtful whether the failure to give the owner of the land notice, as alleged, would amount to a defense if well pleaded, and accompanied by a deposit of the tax, interest, &c., required by sec. 38, cb. 22, Laws of 1859. But there being no statement (as required by that section) of \\u201c the fact that such deposit has been made, and the amount thereof, and that defendant is ready to pay such portion of the costs and disbursements in said action as shall be adjudged just and reasonable,\\u201d the answer is totally insufficient.\", \"word_count\": \"1221\", \"char_count\": \"6880\", \"text\": \"Dixon, C. J.\\nThe charter of the city of Oshkosh, under which the taxes were assessed and the lands sold, provides (secs. 4 and 6, ch. 7, Pr. Laws of 1856, pp. 244-5), that notice shall be given by the street commissioners of any public improvement determined upon by them, to the owners or occupants of the lots or parcels of land fronting on any street, alley or sidewalk ordered to be graded, graveled, planked or paved, requiring such owners or occupants to do the work mentioned in such notice, within a reasonable time therein to be specified; and if such work shall not be done within such time, the commissioners shall enter into a contract for the doing thereof. It is alleged in the third separate defense made by the answer, that no such notice was given to the. defendant Joseph Stringham, who was then the owner of the lot in question, the same being at that time unoccupied ; and that allegation is admitted by the demurrer. This is an insuperable objection to the validity of the taxes for the non-payment of which the deed was executed. The street commissioners bad no power to enter into the contract without having given the notice. Kneeland v. Milwaukee, 18 Wis., 411.\\nSection 19 of chapter 8 of the charter, p. 253, provides that \\\" all the directions hereby given for the assessing of lands and the levying and collecting of taxes and assessments, shall be deemed only directory, and no error or informality in the proceedings of any of the officers entrusted with the same, not affecting the substantial justice of the tax itself, shall vitiate or in any wise affect the validity of the tax or assessment.\\\" It is contended for the plaintiff that the giving of the notice is only directory, and that the omission does not avoid the tax. It is obvious that the provisions of this section do not apply to the notice, but are intended to govern the proceedings of the officers after the debt or liability for which the taxes are assessed or levied, has once been lawfully created. Without any debt or liability the very ground work of the tax is wanting, and there can be no valid assessment or levy. As well might the municipal authorities attempt to assess or levy a tax without any improvement having been directed at all, or without its having been made. But if this section does apply to the notice, it is still within the exceptions contained in the section itself. Every one having had the slightest experience in such matters knows that the right reserved to owners and occupants to make the improvements themselves is a substantial right, and one which cannot be dispensed with without very great danger of oppression and injustice.\\nThe first separate defense contained in the answer, and which is demurred to, is not well pleaded. The grounds of exemption from taxation are numerous, and the facts showing the property not to have been liable should have been stated.\\nBy the Court. \\u2014 The order of the court below is affirmed as to the first separate defense, and reversed as to the third; and the cause remanded for further proceedings according to law.\"}"

wis/11290821.json

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+"{\"id\": \"11290821\", \"name\": \"Kearney & Trecker Corporation, Petitioner-Appellant, v. Department of Revenue, Respondent\", \"name_abbreviation\": \"Kearney & Trecker Corp. v. Department of Revenue\", \"decision_date\": \"1979-10-09\", \"docket_number\": \"No. 77-028\", \"first_page\": \"746\", \"last_page\": \"756\", \"citations\": \"91 Wis. 2d 746\", \"volume\": \"91\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:38:35.058713+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kearney & Trecker Corporation, Petitioner-Appellant, v. Department of Revenue, Respondent.\", \"head_matter\": \"Kearney & Trecker Corporation, Petitioner-Appellant, v. Department of Revenue, Respondent.\\nSupreme Court\\nNo. 77-028.\\nArgued September 10, 1979.\\nDecided October 9, 1979.\\n(Also reported in 284 N.W.2d 61.)\\nFor the appellant there were briefs by Dale L. Sor den and Quarles & Brady of Milwaukee, and oral argument by Mr. Sorden.\\nFor the respondent the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.\", \"word_count\": \"2239\", \"char_count\": \"13685\", \"text\": \"WILLIAM G. CALLOW, J.\\nThis is an appeal from a judgment entered on May 23, 1977, affirming a decision and order of the Wisconsin Tax Appeals Commission. The Tax Appeals Commission affirmed the action of the Department of Revenue (Department) in denying the application of Kearney & Trecker (K & T) for abatement of an assessment of additional income and franchise taxes for the fiscal years ended September 27, 1964, through October 1, 1967. The issue in this case is the tax treatment of the income which K & T received from the rental and subsequent sale of machines located outside the state of Wisconsin.\\nDuring the years in issue, K & T was a Wisconsin corporation engaged in the business of manufacturing, selling, and leasing precision machine tools. K & T manufactured its machine tools in West Allis, the site of its general offices and principal place of business, and sold and leased its machine tools throughout the United States. K & T's Wisconsin operations constituted an integral part of a unitary, multistate business.\\nK & T sold both new and used machine tools. Machine tools were also leased pursuant to a \\\"Tool-Lease Agreement.\\\" The machine tools which were leased and later sold as used machine tools constituted tangible personal property and were treated as depreciable tangible property and not as inventory.\\nDuring these years, rental income (less depreciation and commissions) from leased machine tools and profits or losses from the disposal of leased machine tools were treated by K & T as income or loss which followed the situs of the property from which they were derived and were excluded from income subject to apportionment. As a result of a field audit, the Department notified K & T of an assessment of additional income subject to tax.\\nOriginally a variety of factual and legal disputes between K & T and the Department were presented. All were resolved by agreement of the parties except the single issue posed on this appeal. The parties stipulated to all facts believed by either party to be relevant. They stipulated to the correctness of alternate calculations of the additional tax or refund, interest, Wisconsin adjusted net income, and apportionment factors, the choice between the two depending only upon whose legal conclusion was determined to be. correct.\\nThe Tax Appeals Commission affirmed the assessment without opinion, citing its decision in Wisconsin Barge Line, Inc. v. Wisconsin Department of Revenue, 9 WTAC 367 (1973); and the decision of this court in Newport Co. v. Tax Commission, 219 Wis. 293, 261 N.W. 884 (1935).\\nOn review under Chapter 227, Stats., the circuit court for Dane County affirmed the decision and order of the Commission. Without addressing K & T's contentions, the trial judge ruled that the Department was empowered to tax all of K & T's rental income, including that derived from the rental of tangible personal property located outside of Wisconsin and that rental income was excludable situs income under sec. 71.07(2), Stats. 1967, only when it could be taxed by Wisconsin under some other provision of the tax law.\\nThis appeal presents a single issue: When a taxpayer is in the business of renting tangible personal property as well as manufacturing and selling similar property, should income or loss derived from such rentals of tangible personal property and from sales of the property previously rented be treated for tax purposes as business income subject to apportionment under sec. 71.07 (2), Stats. 1967, or should it he treated for tax purposes as nonapportionable income which follows the situs of the property under sec. 71.07 (1), Stats. 1967 ?\\nWe conclude that rental income (less related expenses) from K & T's leased machine tools and the profits (or losses) from the sale of K & T's leased machine tools follow the situs of the property from which derived and are nonapportionable income under the provisions of sec. 71.07, Stats. 1967.\\nWhen a taxpayer's Wisconsin business constitutes an integral part of a unitary, multistate business, sec. 71.07, Stats. 1967,' divides the income of the taxpayer into apportionable income and nonapportionable income. Ap-portionable income is that income which for income tax purposes must be allocated to two or more states in which the taxpayer's business is conducted. Nonapportionable income is that income which follows the situs of the property from which derived or the residence of the taxpayer and, as a result, is not allocated among two or more states. Department of Revenue v. Exxon Corp., 90 Wis.2d 700, 723, 281 N.W.2d 94 (1979); Transamerica Financial Corp. v. Dept. of Revenue, 56 Wis.2d 57, 65-66, 201 N.W.2d 552 (1972). Nonapportionable income is not included in the apportionment formula when com-, puting income allocable to Wisconsin. Racine v. Morgan, 39 Wis.2d 268, 289, 159 N.W.2d 129 (1968).\\nK & T relies on the text of sec. 71.07, Stats. 1967. Sec. 71.07 (1), Stats. 1967, provides that income derived from the rental or sale of tangible personal property follows the situs of the property. Sec. 71.07(2), Stats. 1967, provides that income (less related expenses) which follows the situs of the property shall be deducted from total net income to determine the amount of income to be included in the apportionment formula. Accordingly, K & T first deducted the net income derived from the rental and subsequent sale of its machine tools from K & T's total net income when calculating the amount of income subject to apportionment. K & T does not contend that the state cannot constitutionally tax its income derived from the rental and subsequent sale of out-of-state property. It only argues that the statutes explicitly exclude such rental and sale income from its income subject to apportionment.\\nThe Department contends that K & T's reading of the statutes produces an absurd result. The Department's theory is that business income, which follows the situs of the business, includes such rental and sale income if the taxpayer is in the rental business, notwithstanding the foreign location of the rental property. Under the Department's interpretation of sec. 71.07(1), Stats. 1967, the only rental income which follows the situs of the property is that which is not considered business income. This, however, is inconsistent with the first sentence of sec. 71.07(1) which provides that only business income which is not apportionable under subsections (2), (3), or (5) follows the situs of the business. Because K & T is a unitary business having income requiring apportionment, sec. 71.07 (1) does not provide a \\\"business situs\\\" to K & T's income, and the only provision assigning an income tax situs to K & T's rental income is the second sentence of subsection (1), making it taxable at the situs of the property. In an effort to give K & T's rental income a tax situs other than the situs of the leased property, the Department argues that this court has recognized a business situs concept independent of the statute. The Department urges this court to find that K & T's income from the leased machine tools is \\\"business income\\\" rather than the more specific \\\"[i]n-come . . . derived . . . from rentals . . . from . . . tangible personal property\\\" and then to ascribe a business situs to that income making the income taxable by Wisconsin. The Department relies on Newport Co. v. Tax Commission, supra, in urging the court to apply the business situs doctrine. While the Department does not claim the statute is ambiguous, it does argue that, when the plain meaning of a statute produces absurd or unreasonable results clearly at variance with the policy of the legislation as a whole, the statute should be construed to follow the legislative purpose. Connell v. Luck, 264 Wis. 282, 284-85, 58 N.W.2d 633 (1953). The Department contends that, unless this rule of construction is applied in this case, Wisconsin would not be able to tax the income derived from products leased outside Wisconsin but manufactured within this state.\\nWhen the Department and a taxpayer cannot agree on the proper interpretation to be accorded a particular section, there are certain fundamental rules of construction which the court may apply. Unless a statute is unclear or ambiguous, legislative intent must be found \\\" 'by giving the language its ordinary and accepted meaning.' \\\" National Amusement Co. v. Dept. of Revenue, 41 Wis.2d 261, 266, 163 N.W.2d 625 (1969); Transamerica Financial Corp. v. Dept. of Revenue, supra at 64. When the legislature imposes a tax, it must do so in clear and express language with all ambiguity and doubt in the particular legislation being resolved against the one who seeks to impose the tax. Id. at 64-65; Shelley v. Department of Revenue, 70 Wis.2d 551, 557, 235 N.W.2d 515 (1975). Although the benefit of the doubt shall be given to the taxpayer in cases where the language imposing the tax is ambiguous, we have said that there is no duty on the court \\\" 'to search for doubt in an endeavor to defeat an obvious legislative intention.' \\\" Transamerica Financial Corp. v. Dept. of Revenue, supra at 65.\\nA statute or any sentence, clause, or word thereof is ambiguous only when \\\"it is capable of being understood by reasonably well-informed persons in either of two or more senses.\\\" State ex rel. West Allis v. Dieringer, 275 Wis. 208, 218, 81 N.W.2d 533 (1957); Department of Revenue v. Nagle-Hart, Inc., 70 Wis.2d 224, 227, 234 N.W.2d 350 (1975). The test is whether well-informed persons could have become confused. Id. at 227; Recht-Goldin-Siegal Construction v. Dept. of Revenue, 64 Wis.2d 303, 306, 219 N.W.2d 379 (1974).\\nK & T argues that the Department's attempt to classify the rental income as business income is contrary to the interpretation of sec. 71.07(1), Stats. 1967. In construing sec. 71.07(1), this court has applied the rule set forth in Frank Lloyd Wright Foundation v. Town of Wyoming, 267 Wis. 599, 608, 66 N.W.2d 642 (1954), which states that:\\n\\\" ' [W] here there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.' \\\"\\nK & T notes that the rule was applied in Shelley v. Department of Revenue, supra, and in Whitney v. Department of Taxation, 16 Wis.2d 274, 114 N.W.2d 445 (1962).\\nIn Shelley, the court said:\\n\\\"Personal services may indeed be the 'business' of a particular taxpayer, and a professional person may likewise be in the 'business' of furnishing certain services for remuneration. However, the legislature has made a distinction between 'business' income, and income derived from 'personal services and from professions . . . ,' the former being nontaxable if earned out of state, and personal service and professional income of a resident being subject to taxation even though earned out of state.\\\" 70 Wis.2d at 558.\\nThe power of Wisconsin to tax the income of K & T is not in issue. The parties concede that Wisconsin can constitutionally tax the income of K & T, a Wisconsin corporation domiciled in this state, regardless of its source. Dromey v. Tax Commission, 227 Wis. 267, 273, 278 N.W. 400 (1938); Lawrence v. State Tax Commission, 286 U.S. 276, 281 (1932). The question to be resolved involves a determination of the legislative intent expressed in sec. 71.07, Stats. 1967.\\nWe conclude the language of sec. 71.07(1), Stats. 1967, is not ambiguous. Income derived from the lease and subsequent sale of machine tools which have a situs other than in Wisconsin is income derived from the rental and sale of tangible personal property and shall follow the situs of the property from which derived. Such income is not income from business as defined in see. 71.07 (1), Stats. 1967. We are not persuaded that treating K & T's rental income or income from the sale of rental property as income which follows the situs of the property from which derived will produce absurd consequences. An absurd result cannot be found merely because the taxpayer's construction of a taxing statute allocates some of the taxpayer's income out of Wisconsin where it is not taxed.\\n\\\"Once a taxpayer is 'engaged in business' within and without this.state, entitling the taxpayer to use the apportionment formula, Wisconsin is restricted to taxing 'only on such income as is derived from business transacted and property located within the state.' It is no concern of Wisconsin that some of the net business income may be allocated out of the state where, because of different taxing laws or the absence of them, it is not taxed. . . . Apportionment does not give the department the right to collect the most tax but only the fairest share and that share to be derived from business transacted and property in this state. Standard Oil Co. v. Wisconsin Tax Comm. (1929), 197 Wis. 630, 223 N.W. 85.\\\"\\nDepartment of Taxation v. Blatz Brewing Co., 12 Wis.2d 615, 626-27, 108 N.W.2d 319 (1961).\\nBy the Court. \\u2014 Judgment reversed and cause remanded for the entry of an order consistent with this opinion.\"}"

wis/11846491.json

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+"{\"id\": \"11846491\", \"name\": \"Ken Kempfer, Plaintiff-Respondent, v. Automated Finishing, Inc., Defendant-Appellant\", \"name_abbreviation\": \"Kempfer v. Automated Finishing, Inc.\", \"decision_date\": \"1997-06-20\", \"docket_number\": \"No. 95-0649\", \"first_page\": \"100\", \"last_page\": \"139\", \"citations\": \"211 Wis. 2d 100\", \"volume\": \"211\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:42:10.866859+00:00\", \"provenance\": \"CAP\", \"judges\": \"AbRAHAMSON, C.J., concurs.\", \"parties\": \"Ken Kempfer, Plaintiff-Respondent, v. Automated Finishing, Inc., Defendant-Appellant.\", \"head_matter\": \"Ken Kempfer, Plaintiff-Respondent, v. Automated Finishing, Inc., Defendant-Appellant.\\nSupreme Court\\nNo. 95-0649.\\nOral argument October 31, 1996.\\nDecided June 20, 1997.\\n(Also reported in 564 N.W.2d 692.)\\nAbRAHAMSON, C.J., concurs.\\nBradley, J., joins.\\nSTEINMETZ, J., concurs.\\nFor the defendant-appellant there were briefs by Joseph E. Redding, Thomas R. Napierala and Glojek Limited, West Allis and oral argument by Thomas R. Napierala.\\nFor the plaintiff-respondent there was a brief by Joseph J. Welcenbach and Welcenbach & Widmann, S.C., Milwaukee and oral argument by Joseph J. Welcenbach and Patricia Meunier of Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Milwaukee.\\nAmicus curiae brief was filed by Timothy G. Costello and Krukowski & Costello, S.C., Milwaukee for the Wisconsin Manufacturers & Commerce.\", \"word_count\": \"9785\", \"char_count\": \"60565\", \"text\": \"JON P. WILCOX, J.\\n\\u00b6 1. This case is on certification from the court of appeals following a jury trial. The jury concluded that the plaintiff, Ken Kempfer (Kempfer), was entitled to damages of $22,167 for past wages and benefits and $145,000 for future lost wages and benefits from Automated Finishing, Incorporated (AFI) for his wrongful discharge. The Circuit Court for Waukesha County, Patrick L. Snyder, Judge, denied AFI's motions after verdict. AFI appealed.\\n\\u00b6 2. On certification, we consider: (1) whether, as a matter of law, Kempfer identified a fundamental and well-defined public policy, (2) whether Kempfer, an employee-at-will, demonstrated that he was terminated for refusing to act contrary to a fundamental and well-defined public policy; and (3) whether the circuit court erroneously exercised its discretion by allowing the jury to consider awarding damages of future wage loss. We hold that Kempfer identified a fundamental and well-defined public policy and that he was terminated for refusing to act contrary to that public policy; however, we also hold that the circuit court erroneously exercised its discretion when it allowed the jury to consider awarding damages for Kempfer's future wage loss. The circuit court should have determined whether reinstatement was feasible. If it was not feasible, the circuit court should have determined what amount, if any, of front pay was necessary to make Kempfer whole. Thus, we affirm in part and reverse in part the decision of the circuit court.\\n\\u00b6 3. The relevant facts are not in dispute. Kempfer was hired by the defendant, AFI, on October 8, 1981. He was initially assigned to perform urethane mold work. After approximately five years, Kempfer's job duties began to vary and at some point AFI began to ask Kempfer and three other employees to make as-needed deliveries with a 22-foot International Harvester flatbed truck. The truck had been purchased in 1984 and its weight was registered with the Department of Transportation as 32,000 pounds. At the time Kempfer began driving the truck, AFI indicated that the only requirement was that the drivers hold a valid, regular driver license.\\n\\u00b6 4. On March 1,1993, Kempfer, while returning from a delivery, was stopped by a state patrol officer who had noticed that the truck had a cracked windshield. The officer issued warning tickets to AFI for the cracked windshield and to Kempfer for not having a commercial driver license (CDL). The officer explained that due to the weight of his truck Kempfer was required by law to hold a CDL and that further violations would result in personal fines and/or jail time.\\nf 5. When he returned to the plant, Kempfer gave both citations to the plant manager. Kempfer then made the first of four trips to the Department of Motor Vehicles (DMV) to learn more about the CDL requirements. He picked up some informational booklets about the CDL requirements which he later gave to his employer.\\n\\u00b6 6. AFI subsequently asked Kempfer to drive the truck on six separate occasions. Kempfer refused each time stating that he did not have the required CDL to drive the truck. Kempfer stated that he was not told by AFI to get a CDL and that he would have needed to use AFI's truck to take the test. Accordingly, he never obtained a CDL.\\n\\u00b6 7. On the morning of April 16, 1994, the plant manager again told Kempfer to drive the truck. Kempfer refused stating that he did not have the proper licensing. The plant manager found another employee to drive the truck, and reported Kempfer's refusal. As a result, Kempfer was suspended for two days. Kempfer then went to the DMV for a fourth time. An employee at the DMV called AFI to explain the CDL requirement for operation of the company truck.\\n\\u00b6 8. Upon returning from his suspension on April 20, 1994, Kempfer was informed that his position had been eliminated, and, accordingly, he was fired. Kempfer's foreman, Mark Bonney, was also fired for refusing to sign Kempfer's suspension notice.\\n\\u00b6 9. Kempfer filed suit alleging that he was wrongfully discharged for refusing to violate public policy. AFI argued at trial that Kempfer was released because of cost-cutting efforts to reduce the labor force. Following a three-day trial, the jury found that Kempfer was suspended and fired for his refusal to operate the company truck without a CDL. Kempfer was awarded back pay and benefits in the amount of $22,167. The jury also awarded Kempfer $145,000 for future lost wages and benefits. The circuit court denied AFI's motions after verdict and AFI appealed.\\nH-i\\n\\u00b6 10. The first issue that we address is whether as a matter of law, Kempfer identified a fundamental and well-defined public policy. This issue is a question of law, Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573-574, 335 N.W.2d 834 (1983), that this court reviews de novo. Winkelman v. Beloit Memorial Hospital, 168 Wis. 2d 12, 24, 483 N.W.2d 211 (1992). The plaintiff-employee bears the burden of proving that the dismissal violates a clear mandate of public policy. Brockmeyer, 113 Wis. 2d at 574.\\n\\u00b6 11. Under the employee-at-will doctrine, an employer may discharge an employee-at-will \\\"for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.\\\" Id. at 567. However, this court has recognized a \\\"narrowly circumscribed public policy exception\\\" to this general rule. Id. at 574. Specifically, this exception provides that an employer may not discharge an employee for refusing a command to violate a fundamental and well-defined public policy. Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 141, 396 N.W.2d 167 (1986).\\n\\u00b6 12. This court first recognized the public policy exception to the employee-at-will doctrine in Brockmeyer. In that case, this court explained what was meant by a fundamental and well-defined public policy:\\nPublic policy is a broad concept embodying the community common sense and common conscience. . . .The provisions of the Wisconsin Constitution initially declared the public policies of this state. Each time the constitution is amended, that also is an expression of public policy. In addition, public policy is regularly adopted and promulgated in the form of legislation. These declarations of public policy are inherently incorporated into every employment at will relationship.\\nGiven the vagueness of the concept of public policy, it is necessary that we be more precise about the contours of the public policy exception. A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end.\\nWe intend to recognize an existing limited public policy exception. An employer may not require an employee to violate a constitutional or statutory provision with impunity. If an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior.\\nBrockmeyer, 113 Wis. 2d at 573 (emphasis added). However, this court warned:\\nCourts should proceed cautiously when making public policy determinations. No employer should be subject to suit merely because a discharged employee's conduct was praiseworthy or because the public may have derived some benefit from it.\\nId. at 573-74. This court's rejection of an expansive exception to the employee-at-will doctrine is also illustrated by the refusal in Brockmeyer to impose an implied covenant and fair dealing on employers:\\nWe refuse to impose a duty to terminate in good faith into employment contracts. To do so would \\\"subject each discharge to judicial incursions into the amorphous concept of bad faith.\\\" Moreover, we feel it unnecessary and unwarranted for the courts to become arbiters of any termination that may have a tinge of bad faith attached. Imposing a good faith duty to terminate would unduly restrict an employer's discretion in managing the work force.\\nId. at 569 (citation omitted).\\n\\u00b6 13. This court again considered Wisconsin's narrow public policy exception to the employee-at-will doctrine in Bushko, 134 Wis. 2d 136. In that case, this court considered whether the public policy exception included employees who were discharged for acting consistent with a fundamental and well-defined public policy when there was no order by the employer to violate the public policy. This court stated:\\nThe plaintiff is not required under Brockmeyer to prove the employer had an evil intent in the discharge. Likewise, gratuitous allegations or other evidence of evil intent will not save a cause of action from defendant's motion for summary judgment if the elements required by Brockmeyer are not present. Brockmeyer requires an employee allege and attest that he was discharged for refusing to violate a constitutional or statutory provision. Although Brockmeyer was intended to provide relief for the employee who was a victim of evil intent, it did so under very limited circumstances. Brockmeyer defined the cause of action and the standards for summary judgment in such a way that the trial judge need not inquire into the intent of the employer.\\nAn employee who refuses a command to violate public policy is acting consistent with public policy. However, if the employee of his own volition acts consistently with public policy, he does no more than obey the law. Such consistent action, without an employer's command to do otherwise, is merely \\\"praiseworthy\\\" conduct.\\nId. at 141-42. Accordingly, the public policy exception does not apply in cases where the employee-at-will is simply discharged for acting consistently with the fundamental and well-defined public policy; there must be an order by the employer to violate the public policy.\\n\\u00b6 14. We are provided with further guidance on the scope of this public policy exception by this court's decision in Winkelman, 168 Wis. 2d 12. In that case, this court considered whether a fundamental and well-defined public policy could be evidenced by an administrative rule rather than a statutory or constitutional provision. Id. at 21. This court stated:\\nWe hold that where a fundamental and well-defined public policy is evidenced by an administrative rule, a discharge for refusal to violate that public policy is actionable. The guiding principle of Brockmeyer is not a slavish adherence to the arbitrary requirement that the public policy be evidenced by a statutory or constitutional procedure; rather, it is that an employer must not be allowed to discharge an employee for the employee's refusal to violate a formally stated, fundamental and well-defined public policy which has the effect of law. Heretofore we have required that the public policy be evidenced by a statutory or constitutional provision as a means to protect the public from frivolous lawsuits by allowing the circuit court to screen cases on motions to dismiss or motions for summary judgment. [Brockmeyer, 113 Wis. 2d at 574]. The facts of this case make clear that public policy that is fundamental and important may be enunciated' in administrative rules and that to use such rules will not frustrate this type of screening. An administrative rule, as well as statutory or constitutional provision, may contain a clear expression of public policy.\\nId. at 22. Accordingly, in Winkelman, this court recognized that the definition of the public policy exception in Brockmeyer includes fundamental and well-defined public policies that are evidenced by statutory, constitutional, or administrative provisions. However, this definition does not include case law and it does not mean that every statutory, constitutional, or administrative provision evidences a fundamental and well-defined public policy.\\n\\u00b6 15. If a public policy is not contained in a statutory, constitutional, or administrative provision, it cannot fall under the public policy exception to the employee-at-will doctrine. However, just because a public policy is evidenced by a statutory, constitutional, or administrative provision does not mean that it falls under the exception. This was recognized by this court in Winkelman:\\nWe however do not hold that all administrative rules implicate fundamental public policy. Neither do all statutes. Rather, it is the content of either a rule or statute that determines whether a fundamental public policy is stated.\\nId. at 24. Accordingly, the public policy must still be found to be fundamental and well defined. This is determined by the guidelines set forth in Brockmeyer. See Brockmeyer, 113 Wis. 2d at 573-74.\\n\\u00b6 16. Thus, the Wisconsin public policy exception to the employee-at-will doctrine is very narrow. It only provides that an employee may not be discharged for refusing a command to violate a fundamental and well-defined public policy that is evidenced by a constitutional, statutory, or administrative provision. With the exception of such a public policy, an employer may discharge an employee-at-will for any reason or no reason.\\n\\u00b6 17. AFI contends that the public policy recognized by the circuit court \\u2014 that an employer cannot require someone to violate the law \\u2014 was not grounded in a specific constitutional or statutory provision which evidenced a fundamental and well-defined public policy. Kempfer asserts that the circuit court identified two fundamental and well-defined public policies: (1) the public policy against improperly licensed commercial drivers evidenced by Wis. Stat. \\u00a7 343.05(2)(a) (1993-94); and (2) the public policy against employers ordering employees to violate a statute that carried criminal penalties.\\n\\u00b6 18. We find that Kempfer identified a fundamental and well-defined public policy sufficient to invoke Wisconsin's public policy exception to the employee-at-will doctrine. Wis. Stat. \\u00a7 343.05(2)(a) sets forth the requirements for operating a commercial vehicle in Wisconsin. If a person operates a commercial vehicle without complying with these requirements the driver and his or her employer may be subject to penalties under Wis. Stat. \\u00a7 343.245. The guidelines for operating a commercial vehicle contained in \\u00a7 343.05(2)(a) which are designed to promote highway safety and violation of which may be punished by fine andlor incarceration constitute a fundamental and well-established public policy-to promote highway safety through the use of regulations and penalties.\\nII.\\n\\u00b6 19. The next issue that we address is whether Kempfer, an employee-at-will, demonstrated that he was terminated for refusing to act contrary to a fundamental and well-defined public policy. This is a jury finding that this court will not overturn if there is any credible evidence that supports the verdict. Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979). In addition, this court views the evidence in the light most favorable to the verdict. Roach v. Keane, 73 Wis. 2d 524, 536, 243 N.W.2d 508 (1976).\\n\\u00b6 20. As we have already found that Kempfer identified a fundamental and well-defined public policy, we need only determine whether any credible evidence supports the jury's finding that Kempfer was discharged for refusing to act contrary to that public policy. AFI contends that there is no evidence to support that Kempfer was terminated for failing to act contrary to a fundamental public policy. In support of this contention, AFT states that only Kempfer could have obtained a CDL and that AFI did not prevent him from doing so. AFI further states that it only told Kempfer to \\\"drive the truck.\\\"\\n\\u00b6 21. We conclude that under the facts of this case commanding Kempfer to drive the truck with full knowledge that he did not have the required license is tantamount to commanding him to violate public policy. At the time that AFI ordered him to drive the truck it knew that Kempfer did not have a CDL. Kempfer refused to drive the truck and was suspended by AFI. Accordingly, there is credible evidence to support the jury's finding that Kempfer was discharged for refusing to act contrary to a fundamental and well-defined public policy.\\nIII\\n\\u00b6 22. The last issue that we consider is whether the circuit court erroneously exercised its discretion by allowing the jury to consider awarding damages of future wage loss. Discretionary acts of the circuit court are upheld absent an erroneous exercise of discretion. Johnson v. Johnson, 78 Wis. 2d 137, 143-44, 254 N.W.2d 198, 202 (1977). Failure to apply the proper standard of law is an erroneous exercise of discretion. Loy v. Bunderson, 107 Wis. 2d 400, 411-15, 320 N.W.2d 175 (1982).\\n\\u00b6 23. During the course of the trial in this case, the circuit court decided to allow the jury to consider whether Kempfer would suffer a future wage loss. The circuit court gave the jury the following instruction:\\nIf you are satisfied that the plaintiff will suffer a future wage and benefit loss as the natural result of his wrongful discharge, then include in your answer to question 2 such sum as will fairly and reasonably compensate plaintiff for such future loss of wages and benefits .\\nAFI contends that this was an erroneous exercise of the circuit court's discretion because in an at-will employment relationship there are no foreseeable future damages upon which to base an award of future lost earnings because the parties cannot foresee the duration of the employment relationship. Kempfer asserts that the decisions of the court of appeals in Weyenberg Shoe Mfg. Co. v. Seidl, 140 Wis. 2d 373, 410 N.W.2d 604 (Ct. App. 1987), Brogan v. Industrial Casualty Ins. Co., 132 Wis. 2d 229, 392 N.W.2d 439 (Ct. App. 1986), and Hale v. Stoughton Hosp. Assoc., Inc., 126 Wis. 2d 267, 376 N.W.2d 89 (Ct. App. 1985), illustrate that future wages are an available remedy in public policy exception cases.\\n\\u00b6 24. In Weyenberg, a jury determined that the employee had been wrongfully terminated for participating in national guard exercises. The jury awarded the employee $57,000 for past damages, $35,000 for future damages, and $15,000 for lost employee benefits. The court of appeals agreed with the trial court that there was sufficient evidence to support the jury's finding that the plaintiff was terminated for participating in the national guard exercises. However, the court of appeals also held that the termination did not fall under the Brockmeyer public policy exception to the employee-at-will doctrine:\\nBecause [the plaintiffs] action in going to guard camp is consistent with public policy rather than a refusal to violate public policy, termination for said conduct does not fall within the extremely narrow exception of the employment at will doctrine under Brockmeyer smdBushko.\\nWeyenberg, 140 Wis. 2d at 383 (emphasis in original). The court of appeals instead upheld the jury's award of damages based on a finding that the plaintiff had been discharged in violation of the Vietnam Era Veterans' Readjustment Assistance Act, 38 U.S.C. \\u00a7 2021(b)(3) (1982). Kempfer contends that the Weyenberg decision is significant because the court of appeals upheld the propriety of the jury's award of future damages to an at-will employee. We do not find this case significant as it does not concern the public policy exception to the employee-at-will doctrine. Whether an award of future damages is appropriate under 38 U.S.C. \\u00a7 2021(b)(3) (1982) does not bear on whether such an award is consistent with Brockmeyer, and, thus, available under the public policy exception to the employee-at-will doctrine.\\n\\u00b6 25. The next case that Kempfer relies on, Brogan, also did not involve the public policy exception to the employee-at-will doctrine. This was a breach of contract case that centered on whether the contract was rendered void by Wis. Stat. \\u00a7 611.63 (1983-84). Brogan, 132 Wis. 2d at 233. The court of appeals held that the contract was not void and upheld the jury's award of future damages to the plaintiff. Of particular significance, according to Kempfer, is the court of appeals' statement that \\\"[t]he amount of damages awarded is a matter resting largely in the jury's discretion.\\\" Id. at 238. In so relying on the court of appeals' decision in Brogan, Kempfer fails to consider the distinction between those employed pursuant to a contract and those who are employed at will. This case does not pertain to the at-will employment relationship and is not relevant to our decision.\\n\\u00b6 26. Kempfer also relies on the court of appeals' decision in Hale. In that case, the plaintiff brought suit against his former employer for wrongful termination and tortious interference with contract. At trial, the jury was given two verdict questions. The first question involved whether the defendant-employer had wrongfully terminated the plaintiff-employee. This question and the accompanying instruction was derived from the court of appeals decision in Brockmeyer v. Dun & Bradstreet, 109 Wis. 2d 44, 325 N.W.2d 70 (Ct. App. 1982). The second question concerned the tortious interference with contract claim. The jury did not answer the second question, but found that the plaintiff had been wrongfully discharged. Shortly after the jury returned its verdict in Hale, this court rejected the court of appeals' holding in Brockmeyer. The circuit court concluded that it had applied the wrong law and ordered a new trial on whether the plaintiff-employee had been wrongfully terminated. Kempfer contends that Hale supports his position because the court of appeals endorsed the award of future wages in a wrongful termination case. What Kempfer fails to mention is that the plaintiff-employee in Hale was not an employee-at-will. The court of appeals stated:\\nNor does the wrongful termination question and instruction adequately describe the duty that the hospital accepted in its bylaw. We agree that the bylaw creates more than a mere \\\"at will\\\" employment relationship. Unlike an \\\"at will\\\" employer, the [defendant-employer] could not discharge [the plaintiff-employee] for any or even no cause.\\nHale, 126 Wis. 2d at 275. Thus, neither Hale, Weyenberg, nor Brogan is relevant to whether an employee- at-will who is discharged for refusing to violate a fundamental public policy is entitled to front pay.\\n\\u00b6 27. Our determination of this issue is controlled by this court's decision in Brockmeyer. In Brockmeyer, this court held that under Wisconsin's public policy exception to the employee-at-will doctrine, the wrongfully discharged employee's right to compensation is in contract. In reaching this conclusion, the court considered whether such a wrongful discharge suit would most appropriately be brought as a tort or contract action. This court determined that contract was more appropriate because the damages available in those suits best reflected the damages stemming from wrongful discharge suits:\\nThe most significant distinction in our view between the two causes of action in wrongful discharge suits is in the damages that may be recovered. In tort actions, the only limitations are those of \\\"proximate cause\\\" or public policy considerations. Punitive damages are also allowed. In contract actions, damages are limited by the concepts of foreseeability and mitigation. The remedies established by the majority of Wisconsin wrongful discharge statutes are limited to reinstatement and backpay, contractual remedy concepts. We believe that reinstatement and backpay are the most appropriate remedies for the public policy exception wrongful discharges since the primary concern in these actions is to make the wronged employee \\\"whole.\\\" Therefore, we conclude that a contract action is most appropriate for wrongful discharges.\\nBrockmeyer, 113 Wis. 2d at 575 (emphasis added). Accordingly, Brockmeyer stands for the proposition that reinstatement and backpay are the most appropriate remedies.\\n\\u00b6 28. Kempfer argues that Brockmeyer did not expressly limit the damages for a wrongfully discharged employee-at-will to reinstatement and backpay when there is a more appropriate remedy. According to Kempfer, it is more appropriate in this case to award him future wages instead of reinstatement. We agree that there may be some cases where an award of front pay in lieu of reinstatement is necessary to make the wronged employee whole. However, as Brockmeyer limited damages in almost all cases to reinstatement and backpay, front pay can only be available when there is no other avenue to make the employee whole. In other words, front pay is only an available remedy in those cases in which the employee has been discharged for refusing to violate a fundamental and well-defined public policy and reinstatement is not feasible.\\n\\u00b6 29. Reinstatement is not feasible if the employee cannot be placed in the same or a similar position or if the company refuses to reinstate the employee. However, reinstatement is not infeasible simply because a plaintiff claims that he or she does not get along with the employer or because the plaintiff claims that he or she is not comfortable working for someone who previously terminated him or her.\\n\\u00b6 30. In those situations where reinstatement is not feasible an award of front pay is still limited by the concepts of foreseeability and mitigation. See Brockmeyer, 113 Wis. 2d at 575; see also Klug v. Flambeau Plastics Corp., 62 Wis. 2d 141, 155, 214 N.W.2d 281 (1974) (requiring that the injured party in an employment situation \\\"must make reasonable efforts to mitigate damages.\\\"). Thus, in determining whether front pay is available, when reinstatement has already been deemed infeasible, the court must consider (1) the extent of front pay, if any, foreseeable under the circumstances of the case, and (2) what effect the employee's mitigation will have on the award of front pay.\\n\\u00b6 31. Accordingly, the circuit court must first determine whether reinstatement is feasible. If the circuit court concludes that reinstatement is not feasible then the court rather than the jury should determine the amount of front pay, if any, that is necessary to make the wronged employee whole. See Stafford v. Electronic Data Systems Corp., 741 F. Supp. 664, 667 (E.D. Mich. 1990). In the present case, the circuit court did not consider whether reinstatement was infeasible, but submitted the question of front pay to the jury. Thus, we hold that the circuit court erroneously exercised its discretion when it allowed the jury to consider future wage loss in its damages determination. The cause is remanded for a determination of whether reinstatement is not feasible, and, if so, for a calculation of front pay by the circuit court.\\nBy the Court. \\u2014 The decision of the circuit court is affirmed in part and reversed in part.\\nWe note that an administrative rule is less likely to satisfy the fundamental and well-defined requirements than a statutory provision and that a statutory provision is less likely to rise to the level of fundamental and well defined than a constitutional provision.\\nUnless otherwise stated, all future statutory references are to the 1993-94 volume. Wis. Stat. \\u00a7 343.05(2)(a) provides in relevant part:\\n(2) Commercial Motor Vehicles, (a) No person may operate a commercial motor vehicle upon a highway in this state unless the person is one of the following:\\n1. A resident who is at least 18 years of age, who is not disqualified under s. 343.315, who has a valid commercial driver license which is not revoked, suspended, canceled, or expired and, for the operation of any vehicle type under s. 343.04(2), has an endorsement authorizing operation of the vehicle type.\"}"

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+"{\"id\": \"11917136\", \"name\": \"Gregory Barillari and Margaret Flanagan-Wilkie, Parents of Shannon Barillari, Margaret Flanagan-Wilkie, as Special Administrator of the Estate of Shannon Barillari, Erin Barillari, Sal Barillari and Dominic Barillari, Minors, by their Guardian ad Litem, Joseph J. Welcenbach, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent-Petitioner\", \"name_abbreviation\": \"Barillari v. City of Milwaukee\", \"decision_date\": \"1995-06-26\", \"docket_number\": \"No. 93-1334\", \"first_page\": \"247\", \"last_page\": \"264\", \"citations\": \"194 Wis. 2d 247\", \"volume\": \"194\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:06:56.918822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gregory Barillari and Margaret Flanagan-Wilkie, Parents of Shannon Barillari, Margaret Flanagan-Wilkie, as Special Administrator of the Estate of Shannon Barillari, Erin Barillari, Sal Barillari and Dominic Barillari, Minors, by their Guardian ad Litem, Joseph J. Welcenbach, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent-Petitioner.\", \"head_matter\": \"Gregory Barillari and Margaret Flanagan-Wilkie, Parents of Shannon Barillari, Margaret Flanagan-Wilkie, as Special Administrator of the Estate of Shannon Barillari, Erin Barillari, Sal Barillari and Dominic Barillari, Minors, by their Guardian ad Litem, Joseph J. Welcenbach, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent-Petitioner.\\nSupreme Court\\nNo. 93-1334.\\nOral argument May 24, 1995.\\nDecided June 26, 1995.\\n(Also reported in 533 N.W.2d 759.)\\nFor the defendant-respondent-petitioner there was a brief and argument by Grant F. Langley, city attorney.\\nFor the plaintiffs-appellants there was a brief by Joseph J. Welcenbach, Margaret A. Watt and Welcenbach & Widmann, S.C., Milwaukee and oral argument by Joseph J. Welcenbach.\", \"word_count\": \"4390\", \"char_count\": \"27315\", \"text\": \"JANINE P. GESKE, J.\\nThe petitioner, the City of Milwaukee (the City), requests review of a published decision of the court of appeals, Barillari v. Milwaukee, 186 Wis. 2d 415, 521 N.W.2d 144 (Ct. App. 1994), reversing a judgment of the Circuit Court for Milwaukee County, William D. Gardner, Circuit Judge. The circuit court, on summary judgment, dismissed an action against the City for the wrongful death of Shannon Barillari (Shannon). The action arose out of an incident in which Shannon was killed by her ex-boyfriend, Charles Estergard (Estergard), who then committed suicide. Shannon's parents, her estate, and her siblings (the Barillaris) filed suit against the City, claiming that the City, through the police department and two of its detectives, was negligent in failing to (a) apprehend and arrest Estergard or (b) otherwise notify Shannon and her mother that he had not been arrested. According to the Barillaris, once the detectives gave assurances that certain actions would be taken to apprehend Estergard, their discretionary acts, for which they enjoyed immunity from liability, were transformed to ministerial duties, to which no immunity attached.\\nThe Barillaris originally filed their complaint against the City in the Circuit Court for Milwaukee County. The action was thereafter removed to federal court where the City sought summary judgment dismissing the complaint in an action brought pursuant to 42 U.S.C. \\u00a7 1983. The federal district court summarily dismissed the plaintiffs' civil rights claim and remanded the case to the state court for resolution of the state law claim of negligence. The circuit court granted the City's motion for summary judgment of dismissal, finding that the complaint did not state a cause of action. Specifically,, the circuit court stated that the conduct complained of constituted discretionary acts during the investigation of a case, acts which are immune from liability under \\u00a7 893.80(4), Stats.\\nThe court of appeals reversed the decision of the circuit court and held that statutory immunity did not bar the Barillaris' claim because the detectives' assurances of protecting Shannon by arresting Estergard transformed the discretion associated with their official position into a ministerial duty, for which there was no immunity. For the reasons set forth below, we now reverse the decision of the court of appeals and hold that the police detectives' \\\"promise\\\" to apprehend and arrest Estergard for the alleged sexual assault of Shannon or otherwise notify Shannon and her mother that he had not been arrested did not transform the character of their discretionary acts during the investigation of the case into ministerial duties.\\nThe facts before the circuit court at the summary judgment hearing were as follows. On Thursday, July 30, 1987, Shannon filed a report with the Milwaukee Police Department, stating that she had been sexually assaulted by Estergard. Shannon dated Estergard for more than two years. In July 1987, she tried to end their relationship. Estergard responded by threatening to commit suicide. When Shannon made one last attempt to end the relationship on July 29, Estergard sexually assaulted her at knife point, threatening to kill her and himself. Attempting to avoid further harm, Shannon told Estergard that she would move in with him and that he should pick her up at her mother's house on July 30 at 3:30 p.m. Shannon informed her mother and sister of the assault on the morning of July 30 and then went to the hospital for an examination. While at the hospital, two Milwaukee police detectives, Raymond Stanczyck (Stanczyck) and Duane Luick (Luick), interviewed Shannon. The police also took photographs of Shannon's injuries to provide evidence for criminal charges against Estergard.\\nThe Barillaris state that after the interview was concluded, Shannon's mother told the police that she feared Estergard would once again harm Shannon. The Barillaris also claim that Luick promised that Ester-gard would not get near Shannon because the police department would (1) immediately obtain a warrant for his arrest and (2) be at Shannon's home at 3:30 p.m. that day to arrest Estergard.\\nLuick did issue an apprehension request for Ester-gard on July 30, giving the police department the necessary authority to arrest. Additionally, Luick advised Shannon to follow up on the prosecution of the matter because Estergard might try to assault her again. Finally, Luick recommended that Shannon meet with someone from the district attorney's office, Sensitive Crimes Unit, on Friday, July 31, to initiate the prosecution of Estergard. After this interview, Luick did not have any further contact with Shannon or her family.\\nDuring the interview at the hospital, Stanczyck also advised Shannon and her family to file a sexual assault complaint against Estergard in order to pre vent him from having any further harmful contact with her. He then contacted the police department, requesting that a squad be sent to Shannon's home at 3:30 on July 30 to arrest Estergard. The police, however, did not have contact with Estergard at that time. On Friday, July 31, Stanczyck briefly met with Shannon and her mother at the district attorney's office. Rather than seeking an arrest warrant, the assistant district attorney decided to give Estergard a few days to voluntarily turn himself in to the police. The assistant district attorney told Stanczyck that if Estergard did not voluntarily surrender by the beginning of the following week, Stanczyck should return to the office to obtain a warrant for Estergard's arrest.\\nEstergard did not turn himself in to police. On Tuesday, August 4,1987, he went to Shannon's home. He first killed Shannon and then himself with a gun he purchased over the weekend.\\nAccording to the complaint filed by Shannon's family following her death, the City, through its police department and officers, was negligent, inter alia, because the detectives failed to fulfill their promise to apprehend and arrest Estergard or to otherwise notify Shannon and her mother that he had not been arrested. Further, according to the complaint, Shannon and her family relied upon police assurances and canceled plans to leave the Milwaukee area so that Shannon could avoid threats arid physical violence from Estergard.\\nThe City filed a motion for summary judgment pursuant to \\u00a7 802.08, Stats., claiming that the Baril-laris' complaint failed to state a claim for relief because the City and its employees are immune from liability under \\u00a7 893.80(4), Stats. The circuit court granted the motion, holding that (1) the complaint did not state a cause of action; (2) the conduct complained of implicated only the discretionary acts of police during their investigation of the case; (3) discretionary acts by the police are immune from liability, under \\u00a7 893.80(4), Stats.; and (4) absent compelling and immediate danger, with evidence that the police officer had the opportunity to act, the officer should not face a lawsuit regarding his or her actions while conducting an investigation of a case.\\nThe court of appeals reversed the decision of the circuit court and held that summary judgment was not warranted in. this case because the \\\"alleged promise of protection and arrest... [established] the sufficiency of [the] complaint,\\\" Barillari, 186 Wis. 2d at 423, and that a jury must decide whether \\\"the police, in fact, [made] a promise; if so, what were its reasonably understood terms; and did the police fulfill their promise?\\\" Id. at 425. According to the court of appeals, if the detectives gave assurances that they would protect Shannon, the discretion which might otherwise have been associated with their official position dwindled. Id. at 424-25. Thus, the court concluded, statutory immunity did not bar the Barillaris' claim.\\nThe issue before this court is whether a \\\"promise\\\" made by a police officer to protect a crime victim from further harm deprives the officer of immunity from liability for discretionary acts to which the officer would be otherwise entitled under \\u00a7 893.80(4), Stats. We reverse the decision of the court of appeals and hold that the police detectives' \\\"promise\\\" to apprehend and arrest Estergard for the alleged sexual assault of Shannon or to otherwise notify Shannon and her mother that he had not been arrested did not transform the character of their discretionary acts during the investigation of the case to ministerial duties.\\nWe review a court's decision to grant or deny summary judgment de novo. Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994); see also Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The first step in a summary judgment procedure is for the court to determine whether the complaint states a claim for which relief can be granted. Green Spring Farms, 136 Wis. 2d at 315. A complaint \\\"should be dismissed as legally insufficient only if it is quite clear that under no circumstances can plaintiffs recover.\\\" Id. at 317.\\nBECAUSE THE CITY ENJOYS IMMUNITY FROM LIABILITY PURSUANT TO \\u00a7 893.80(4), STATS., THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION, AND SUMMARY JUDGMENT IS PROPER IN THIS CASE\\nThe City argues that summary judgment is warranted in this case because the Barillaris fail to state a claim for relief. Without conceding that any promises were made by Detectives Luick and Stanczyck, the City contends that (a) police conduct during the investigation of Shannon's case was discretionary and requires immunity under \\u00a7 893.80(4), Stats.; (b) even if assurances were given to Shannon and her mother, they were not of a specific nature so as to constitute a ministerial duty; thus, police retained the discretion as to their implementation; and (c) public policy requires that police be provided with discretion to conduct an investigation of a case without fearing liability for consoling the victim of a crime.\\nThe Barillaris argue that, under the facts of this case, statutory immunity does not bar their claim. First, the Barillaris claim that Detectives Luick and Stanczyck made a general promise to protect Shannon by apprehending and arresting Estergard and, more specifically, promised to send police to Shannon's house at 3:30 p.m. on July 30 to arrest him. They also allege that the detectives promised to notify Shannon if Estergard was not arrested. These specific assurances, according to the Barillaris, constitute ministerial duties for which there is no immunity. Second, even if the promises are not considered to be ministerial in nature, the Barillaris contend that Estergard posed a known and compelling danger, of which the detectives were aware; accordingly, an exception to the general rule of immunity existed.\\n\\\"The general rule acknowledged in Wisconsin is that a public officer or employee is immune from personal liability for injuries resulting from acts performed within the scope of the individual's public office.\\\" C.L. v. Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614 (1988) (citing Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976)). Section 893.80(4), Stats., provides immunity from liability for the discretionary acts of public officers or employees.\\nThree exceptions exist, however, to this general rule of immunity. First, a public officer or employee does not enjoy immunity if he or she engages in conduct which is malicious, willful, and intentional. Olson, 143 Wis. 2d at 711 (citing Ibrahim v. Samore, 118 Wis. 2d 720, 728, 348 N.W.2d 554 (1984)).\\nSecond, a public officer or employee is not immune from liability if he or she negligently performs a ministerial duty.\\\" 'A public officer's duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.'\\\" Olson, 143 Wis. 2d at 711-12 (quoting Lister, 72 Wis. 2d at 301). For example, in Domino v. Walworth County, 118 Wis. 2d 488, 490, 492-93, 347 N.W.2d 917 (Ct. App. 1984), the court of appeals held that a county sheriffs department dispatcher violated a ministerial duty by diverting a squad from dealing with a downed tree in a road without simultaneously assigning anyone else to provide for safe passage along the roadway. The duty of the public officer in that case was clear and absolute and, therefore, ministerial. Id. at 491 (citing Cords v. Anderson, 80 Wis. 2d 525, 542, 259 N.W.2d 672 (1977)).\\nThird, a public officer may also face liability when he or she is aware of a danger that is of \\\"such quality that the public officer's duty to act becomes 'absolute, certain and imperative.'\\\" Olson, 143 Wis. 2d at 715 (quoting Cords, 80 Wis. 2d at 541). In Cords, the court held that the immunity defense was not available to a state park manager who failed to either notify superiors of a hazardous 80-foot drop along a trail or erect signs which would warn park patrons of the trail's condition. In that case, \\\"the manager knew of the danger, had the authority to act, and failed to act.\\\" Barillari, 186 Wis. 2d at 421-22 (citing Cords, 80 Wis. 2d at 541).\\nIn Losinski v. County of Trempealeau, 946 F.2d 544, 546 (7th Cir. 1991), a case upon which the Baril-laris rely, the United States Court of Appeals for the Seventh Circuit considered the known and compelling danger exception to immunity when it examined \\\"the alleged failure of a deputy sheriff to protect a domestic violence victim from her husband, who shot and killed her in the deputy's presence.\\\" According to the facts of the case, Julie Losinski obtained a temporary restraining order after a violent domestic fight to prohibit her husband, Donald, from having any contact with her. Soon thereafter, she began divorce proceedings. A court commissioner granted Julie's request to return to her home to retrieve some personal belongings. Due to the violent tendencies of her husband, Julie was accompanied by a sheriffs deputy. When Julie and the deputy arrived at her trailer home, Donald asked to speak to her alone inside the trailer. After asking Julie if this was what she wanted, the deputy permitted her to enter. An argument ensued in one of the bedrooms. The deputy entered the trailer but did not try to interrupt the argument or go into the bedroom. Donald then shot Julie once in the head and once in the neck. Donald was arrested by the deputy. Julie died three days later. Id. at 547-48. The Seventh Circuit, reversing the decision of the United States District Court for the Western District of Wisconsin, held that the deputy was not entitled to immunity because\\n[ o]nce [the deputy] assumed the duty to protect, his obligation was no longer discretionary.... Once the deputy acted [aware of the TRO and Donald's violent tendencies], the discretion that may otherwise attach to his position diminished. The deputy therefore was not entitled to immunity for the decisions made at the [Losinski home].\\nId. at 554.\\nThe Barillaris argue that either the ministerial duty exception described in Domino or the known and compelling danger exception identified in Cords and Losinski is applicable to the facts of this case. We disagree. The situation faced by the detectives in this case differs from the cases just described. Detectives Luick and Stanczyck retained discretion regarding the manner of investigation into the alleged sexual assault, including their implementation of assurances given to protect Shannon. The dissent argues that \\\"an officer's promise to send law enforcement officers to an agreed upon place at a specified time to arrest an assailant\\\" (dissenting op. at 264) transforms the subsequent police activity from discretionary acts to ministerial duties. At first blush, this argument appears to have merit. Upon closer examination, however, we conclude that the nature of law enforcement requires moment-to-moment decision making and crisis management which, in turn, requires that the police department have the latitude to decide how best to utilize law enforcement resources. Unlike those professionals who have a set daily calendar they follow, police officers have no such luxury. For these reasons, it is clear that law enforcement officials must retain the discretion to determine, at all times, how best to carry out their responsibilities.\\nAs both the circuit court and the court of appeals correctly concluded, the detectives could not predict that Shannon would be killed by Estergard on August 4,1987. Furthermore,\\n[ u]nlike the 80-foot drop in Cords, or the tree lying across a roadway in Domino, the police in this case could not look at this situation and see a homicide just waiting to happen. Complaints of sexual assault and threats are, unfortunately, not rare in interspousal and boyfriend-girlfriend relationships. Nevertheless, as tragic and horrifying as these crimes are, the situations do not always lead to an immediately dangerous escalation of violence to the point of homicide.\\nBarillari, 186 Wis. 2d at 422-23.\\nWe look to our police departments to enforce our laws and to maintain order in what is becoming an increasingly dangerous society. Routinely, police face critical situations, many of which have the potential for violence. On a typical day, any given law enforcement officer may be arresting and questioning suspects, interviewing and counseling victims, talking to witnesses, rescuing children, and investigating criminal activity. In the course of their work, police must often try to console and reassure people who are distraught and fearful. Faced with escalating violence, they must continuously use their discretion to set priorities and decide how best to handle specific incidents. Police officers must be free to perform their responsibilities, using their experience, training, and good judgment, without also fearing that they or their employer could be held liable for damages from their allegedly negligent discretionary decisions.\\nUpon examination of the allegations in the Baril-laris' complaint against the City, we are not persuaded that the assurances offered by the detectives to be at Shannon's home on July 30, 1987, to arrest Estergard transformed the police department's discretionary actions into ministerial duties. We recognize that Shannon's death at the hands of Estergard was a very tragic event. However, the circuit court properly granted summary judgment in this case. The City is not liable for the discretionary acts of the police department and its officers, acts for which immunity is provided under \\u00a7 893.80(4), Stats.\\nFinally, the Barillaris argue that they should be able to amend their complaint to state a claim for relief under 42 U.S.C. \\u00a7 1983, in light of recent federal case law which suggests that DeShaney does not foreclose liability for public officers and employees when the state creates a dangerous situation or renders its citizens more vulnerable to danger. We conclude, however, that this court has no jurisdiction over an action that has been dismissed by a federal court.\\nBy the Court. \\u2014 The decision of the court of appeals is reversed.\\nAn apprehension order, issued in the form of a teletype message containing the physical description and address of the individual in question, requests police officers to be on the lookout for the subject of the order. In this case, the order included Estergard's physical description, address, make of car, and the fact that he was wanted for first-degree sexual assault. If located, Estergard was to be picked up. This order is to be distinguished from a warrant which, when completed, is filed in the computer system, authorizing the actual arrest of the individual in question.\\nThe complaint filed by the Barillaris on November 7,1988, sought damages for the wrongful death of Shannon Barillari under \\u00a7 895.04, Stats., and under the Fourteenth Amendment to the United States Constitution and the laws of the United States, including the Civil Rights Act found in Title 42 U.S.C. \\u00a7 1983. The federal action was dismissed by the United States District Court for the Eastern District of Wisconsin on June 22, 1990, Terence T. Evans, United States District Judge. In dismissing the Barillaris' civil rights claim, the court relied on the United States Supreme Court's decision in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), which held that Winnebago County social workers did not violate the Fourteenth Amendment rights of a child they failed to protect from abuse, even though they knew that the child's father was abusing him. The district court, however, remanded the instant case to the Milwaukee County circuit court for consideration of the state law claim of negligence.\\nSection 802.08(2), Stats., provides in pertinent part:\\n802.08 Summary Judgment....\\n(2) Motion. . The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.\\nSection 893.80(4), Stats., provides:\\n893.80 Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits....\\n(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.\\nWe do not reach the issue of whether Losinski was correctly decided under Wisconsin law.\\nEven using the dissent's view of the case, the circuit court properly granted summary judgment. The police could not have been causally negligent as a matter of law because there is no dispute between the parties in the record that Estergard was not at Shannon's residence at 3:30 p.m. on July 30. Had the police complied with the alleged promise to be there at 3:30, they would have discovered that Estergard was not present. At that point, the police would have again possessed the discretion to leave and, therefore, would have been immune from liability for that decision.\\nThe court of appeals noted the fact that \\\"[o]ver 24,000 incidents of domestic abuse were reported in seventy Wisconsin counties in 1991. Wisconsin Department of Justice \\u2014 Office of Crime Victim Services, Domestic Abuse Incident Report: 1990 & 1991, at 5 (1993). Additionally, 24% of all Wisconsin homicides in 1991 were domestic-abuse related.\\\" Barillari, 186 Wis. 2d at 423 n.4.\"}"

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+"{\"id\": \"11924758\", \"name\": \"In the Matter of Arbitration Between: Employers Ins. of Wausau, a Mutual Company, Petitioner-Respondent, v. Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies, Respondents-Appellants\", \"name_abbreviation\": \"Employers Ins. of Wausau v. Certain Underwriters at Lloyd's London\", \"decision_date\": \"1996-06-04\", \"docket_number\": \"No. 95-2930\", \"first_page\": \"673\", \"last_page\": \"693\", \"citations\": \"202 Wis. 2d 673\", \"volume\": \"202\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:45:58.615273+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Cane, P.J., LaRocque and Myse, JJ.\", \"parties\": \"In the Matter of Arbitration Between: Employers Ins. of Wausau, a Mutual Company, Petitioner-Respondent, v. Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies, Respondents-Appellants.\", \"head_matter\": \"In the Matter of Arbitration Between: Employers Ins. of Wausau, a Mutual Company, Petitioner-Respondent, v. Certain Underwriters at Lloyd's London, and Certain London Market Insurance Companies, Respondents-Appellants.\\nCourt of Appeals\\nNo. 95-2930.\\nSubmitted on briefs May 6, 1996.\\nDecided June 4, 1996.\\n(Also reported in 552 N.W.2d 420.)\\nOn behalf of respondents-appellants, the cause was submitted on the brief of Robert E. Shumaker and Kristin M. Huotari of DeWitt Ross & Stevens S. C. of Madison, and Robert A. Knuti and Jane H. Veldman of Lord, Bissell & Brook of Chicago, Illinois.\\nOn behalf of petitioner-respondent, the cause was submitted on the brief of Timothy J. Muldowney and Jeffrey J. Kassel of LaFollette & Sinykin of Madison, and Mark C. Kareken of Zelle & Larson LLP of Minneapolis, Minnesota.\\nBefore Cane, P.J., LaRocque and Myse, JJ.\", \"word_count\": \"4931\", \"char_count\": \"30971\", \"text\": \"LaROCQUE, J.\\nCertain underwriters at Lloyd's London and certain London Market insurance companies (Lloyd's) appeal a judgment and an order of the circuit court confirming an arbitration panel's decision awarding Employers Insurance of Wausau (Employers) $7,783,324 under its reinsurance contracts with Lloyd's. Lloyd's argues: (1) the panel exceeded its power by awarding Employers a recovery on contracts which the parties did not submit to arbitration, (2) the panel improperly extended the time the parties had to submit their case and (3) the award must be modified or vacated because it exceeded Lloyd's policy limits.\\nWe conclude: (1) the panel's determination of the scope of the issues submitted derived its essence from the parties' agreement, (2) the arbitration contract empowered the panel to extend the time for the parties to submit their case and (3) the panel had the authority to award an amount greater than the policy limits. Therefore, the judgment and order are affirmed.\\nBACKGROUND\\nBeginning in 1966, Employers and Lloyd's agreed to a series of contracts called \\\"excess retrocessional insurance treaties.\\\" Under these treaties, Lloyd's reinsured Employers' reinsurance contracts with other insurance companies. Each of the insurance companies Employers reinsured is called an \\\"original assured.\\\"\\nThe treaties each lasted one year, and the parties renewed the treaties on a yearly basis. Employers and Lloyd's structured the contracts in multiple layers of excess of loss coverage through separate contracts with different syndicates of Lloyd's and other insurance companies in the London and United States insurance markets. The separate retrocessional contracts contained common arbitration clauses and common provisions defining \\\"disaster and/or casualty.\\\"\\nUnder the treaties, Employers paid the first $200,000 caused by one \\\"disaster and/or casualty.\\\" The first-layer retrocessional reinsurer was liable for 95% of the next $800,000, and the second-layer retroces-sional reinsurer was liable for 95% of the next $1,000,000. Later, Employers added a third-layer treaty in which the third-layer retrocessional reinsurer paid 95% of the first $500,000 in excess of $2,000,000. A layer of excess coverage is reached only after the lower levels of coverage are exhausted.\\nIn the 1980s, Employers faced claims on its reinsurance contracts with the original assureds resulting from asbestos-related product liability claims. Employers began to submit requests for reimbursement for its payments under its first-layer retrocessional reinsurance treaties. Employers calculated its reimbursement request by aggregating all asbestos-related losses sustained by each original assured during a policy period. Lloyd's rejected Employers' request for reimbursement on the grounds that the policies did not allow Employers to aggregate the losses in this manner. Lloyd's argued that each claim from each individual injured by asbestos was a separate \\\"disaster and/or casualty.\\\" No individual loss exceeded the first-layer contracts' retention of $200,000 per occurrence, so Lloyd's denied Employers reimbursement under the first-layer contracts.\\nIn a letter dated May 27, 1991, Employers demanded arbitration regarding the denial of reimbursement. Employers' demand referenced seven first-layer policies by policy number in the caption of the letter. The parties completed selection of the arbitration panel on May 22, 1995. The arbitration clause requires each party to \\\"submit its case to the arbitrators\\\" within thirty days of the selection of the panel. At the end of the thirty-day period, Employers submitted a statement of its case, but requested further discovery.\\nLloyd's objected to the arbitrators deciding any dispute under any policies other than the seven referenced by policy number in the arbitration demand letter, and objected to any discovery or submission being made to the arbitrators after the thirty-day period. The panel overruled these objections and determined that the scope of the arbitration included claims against the signatories to all treaties between July 1, 1966, and June 30, 1973, and stated that it may request further submissions from the parties. The parties entered into a total of sixteen treaties between July 1, 1966, and June 30,1973. Other facts are set forth in the discussion of the separate issues raised on appeal.\\nAfter reviewing the parties' submissions, the panel decided that Employers could aggregate the asbestos claims for each original assured as one disaster, awarded Employers $7,783,324 and released Lloyd's from further liability under the contracts. Employers moved the circuit court to confirm the arbitration award and Lloyd's countermoved to vacate or modify the award. The circuit court confirmed the award in its entirety. Lloyd's does not challenge the decision that the claims could be aggregated, but challenges the scope of arbitration, the panel's decision to allow submissions more than thirty days after the selection of the panel, and the amount of the award.\\nSCOPE OF ARBITRATION\\nLloyd's does not dispute that the arbitration clause in the treaties encompasses the aggregation dispute. However, an arbitration provision \\\"constitutes merely a promise to arbitrate.\\\" John Morrell & Co. v. Local Union 304A, 913 F.2d 544, 561 (8th Cir. 1990). How the parties framed the issue to be arbitrated, the conduct of the parties, and the original contract to arbitrate, determine the scope of the arbitrator's authority. Id.\\nLloyd's argues that the parties submitted a request for arbitration regarding only the seven reinsurance treaties and that the panel exceeded its authority by imposing liability on policies not specifically referenced by policy number in Employers' arbitration request. If the panel exceeded its power, we must modify or vacate the award. See \\u00a7 788.10(1)(d) and 788.11, Stats. Employers responds that the issue presented to the panel was whether Employers could aggregate all the claims related to asbestos for each original assured, and that the resolution of this issue determined the amount it could collect from of its reinsurance contracts for all years and all layers from July 1966 to June 1973. The panel agreed with Employers.\\nAn issue falls within the scope of the issues presented to the arbitrator if a common intent to submit that particular issue appears with reasonable certainty. See Milwaukee Prof. Firefighters Local 215 v. City of Milwaukee, 78 Wis. 2d 1, 16, 253 N.W.2d 481, 489 (1977). In our case, unlike Milwaukee Prof. Firefighters, the parties raised the issue of the scope of the submission to the panel, and it ruled on that issue. Federal circuit courts have consistently reviewed an arbitrator's interpretation of the scope of the issues submitted under the same standard as they review an arbitrator's interpretation of a contract. Pack Concrete, Inc. v. Cunningham, 866 F.2d 283, 285 (9th Cir. 1989). Appellate courts uphold an arbitrator's contract interpretation if the arbitrator's interpretation drew its essence from the contract so it was not a manifest disregard of the parties' agreement. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960). This standard fosters recourse to arbitration for dispute resolution and forecloses the possibility that our courts will become flooded with disputes involving the exact scope of arbitration proceedings. See Department of Public Safety v. Public Safety Employees Ass'n, 732 P.2d 1090, 1097 (Alaska 1987).\\nWe conclude that the panel's decision to include all policies affected by the aggregation issue derived its essence from the request for arbitration and did not show a manifest disregard for the agreement between the parties. In Employers' May 27, 1991, request for arbitration, it noted that \\\"one panel must determine any basis for the consolidated, common denial and assess the conduct surrounding that denial, as well as the damages flowing from it.\\\" Employers also noted \\\"[t]his request involves all existing and future asbestos claims affected by [Lloyd's] denial.\\\"\\nThe parties' conduct leading up to the request for arbitration strengthens the inference that the request related to every treaty affected by the aggregation issue. Employers requested Lloyd's to explain whether its denial of coverage \\\"was intended as a blanket denial of all presently existing and future asbestos-related claims.\\\" Lloyd's responded \\\"[i]n response to your inquiry the denial of the London Reinsurers is intended to apply to all of [Employers] reimbursement requests for its bodily injury asbestos-related losses involving the July 1,1966 to June 30,1973 treaties.\\\" Further, no language in any of the correspondence explicitly states that the arbitration request pertains only to the seven policies Employers listed in its caption.\\nLloyd's notes the caption of the letter lists seven specific insurance policies by number. Lloyd's also presents other evidence indicating the parties intended the submission for arbitration to only refer to seven policies. We note that Employers' statement of its case showed it had only submitted reimbursement claims under the seven first-layer policies contained in the caption of the demand for arbitration, and four second-layer policies. At best, these facts make the parties' intent ambiguous. Our standard of review requires us to defer to the panel's choice in such a case. See Enterprise, 363 U.S. at 599.\\nLloyd's argues that the panel lacked the power to consolidate the arbitration for all of the policies. Lloyd's cites federal decisions that hold that neither a district court nor an arbitrator has the power to consolidate claims under separate arbitration contracts absent an agreement to do so, even if consolidation would more efficiently resolve all the claims. See United Kingdom v. Boeing Co., 998 F.2d 68, 69 (2d Cir. 1993). Lloyd's analogizes our case to North River Ins. Co. v. Philadelphia Reins. Corp., 856 F. Supp. 850 (S.D.N.Y. 1994), rev'd on other grounds, 63 F.3d 160 (2d Cir. 1995), in which the district court, relying on Boeing, rejected the argument that various reinsurers were deemed to consent to a consolidated arbitration by virtue of signing the same reinsurance treaty with an arbitration clause similar to the one in our case.\\nIn North River, the court ordered consolidation without an alleged agreement of the parties to do so. In our case, the panel concluded that the parties' conduct and the way they framed the issue to be arbitrated evinced an agreement to consolidate the arbitration. See John Morrell, 913 F.2d at 561. Boeing allows consolidation of separate arbitration claims if the parties agree to do so. Id. at 69. Because the panel found an implicit agreement, we reject Lloyd's argument.\\nEXTENSION OF TIME FOR SUBMISSIONS\\nNext, Lloyd's argues that the panel exceeded its power by allowing Employers to present evidence after thirty days of the arbitrators' appointment. The arbitration clause in the treaties require each party to \\\"submit its case\\\" to the arbitrators within thirty days from the arbitrators' appointment. On May 22, 1995, the parties completed selection of the panel. On June 21, 1995, Employers submitted a statement of the case and some exhibits. The statement of the case provided a factual history of the dispute, legal argument, and a request for further discovery. Lloyd's objected to any further discovery or submissions. The panel decided to allow further discovery, but only to the extent the panel requested. Employers thereafter presented statements from expert witnesses, affidavits and exhibits. The trial court held that this was merely a procedural mat ter within the arbitrators' discretionary powers to conduct the proceedings.\\nThe phrase \\\"submit its case\\\" is ambiguous. A contractual phrase is ambiguous if it can reasonably be understood in more than one sense or can convey more than one meaning. DOT v. Transportation Comm'n, 111 Wis. 2d 80, 87, 330 N.W.2d 159, 162 (1983). One could reasonably interpret the phrase to mean that the parties must present all facts and all argument within thirty days of the selection of the panel. However, one could also reasonably interpret the phrase to mean that the parties must only introduce their argument within thirty days. The latter interpretation gives the panel discretion to continue fact-finding and discovery if it needs to do so to reach a proper resolution of the case.\\nThe arbitration clause states that the panel is \\\"relieved of all judicial formalities and may abstain from following the strict rules of law.\\\" Given the broad power the clause gives to the panel in controlling procedure, we will defer to its interpretation of an ambiguous phrase regulating procedure. In re Arbitration between West Salem & Fortney, 108 Wis. 2d 167, 177-78, 321 N.W.2d 225, 232 (1982).\\nBecause the language in the agreement is vague and indefinite as to exactly what procedures should be used to arrive at that determination, it is within the province of the arbitration panel, as the interpreter of the contract language, to devise such procedures as it considers necessary to reach a decision, as long as those procedures are compatible with the contract language and do not violate the law.\\nId. We conclude that the arbitration agreement authorized the panel to extend the period for fact finding and discovery beyond thirty days after its selection. '\\nAMOUNT OF AWARD\\nThe policy limit for all policies involved is $5,203,507. The panel awarded Employers $7,783,324 plus costs, postaward interest and a letter of credit for the syndicates and insurance companies that did not pay their share of the award within forty-five days.\\nIn its decision, the panel did not specify its basis for exceeding the policy limits. The panel's lack of legal analysis is not a basis to vacate or modify an award. See McKenzie v. Warmka, 81 Wis. 2d 591, 601, 260 N.W.2d 752, 757 (1978). We provide only a limited review of arbitrators' awards because parties who contract for arbitration are entitled to an arbitration award without having to relitigate the issues in court. City of Madison v. Madison Prof. Police Officers Ass'n, 144 Wis. 2d 576, 585-86, 425 N.W.2d 8, 11 (1988). We may not substitute our judgment for that of the panel whether the award is correct or incorrect as a matter of fact or law. Milwaukee Teachers' Ed. Ass'n v. Milwaukee Bd. of Sch. Dirs., 147 Wis. 2d 791, 795, 433 N.W.2d 669, 671 (Ct. App. 1988). However, we will vacate or modify the arbitrators' award if \\\"perverse misconstruction or positive misconduct [is] plainly established, or if there is a manifest disregard of the law, or if the award itself is illegal or violates strong public policy.\\\" Madison Police Ass'n, 144 Wis. 2d at 586, 425 N.W.2d at 11 (quoting Milwaukee Bd. of Sch. Dirs. v. Milwaukee Teachers' Ed. Ass'n, 93 Wis. 2d 415, 422, 287 N.W.2d 131, 135 (1980)). These narrow grounds for overturning an arbitrator's award are codified in \\u00a7 788.10(1) and 788.11(1), Stats. See note 3. The scope of our review of the arbitrator's decision is the same as the circuit court's and we give no deference to the circuit court's decision. City of Madison v. Local 311, Int'l Ass'n of Firefighters, 133 Wis. 2d 186, 190, 394 N.W.2d 766, 768 (Ct. App. 1986).\\nLloyd's argues that the award over the policy limits cannot represent preaward interest and is a manifest disregard of the law. It refers to Wisconsin law that requires claims to be liquidated or \\\"determinable\\\" for prejudgment interest to accrue and sets the prejudgment interest rate at 5% when there is no agreement or statute to the contrary. Benke v. Mukwonago-Vernon Mut. Ins. Co., 110 Wis. 2d 356, 366-69, 329 N.W.2d 243, 249-50 (Ct. App. 1982). Lloyd's argues that, applying a 5% interest rate, the interest would have had to start accruing around 1985 for the interest to equal the excess amount. Lloyd's concludes that the claims could not have been liquidated or determinable in 1985 because Employers first submitted reinsurance billings in 1986.\\nWe reject Employers' first response that Lloyd's challenge to the amount of the award is moot. Employers suggests that the difference between the award and the policy limits constitutes interest and costs expressly awarded which the parties to the appeal in fact did not have to pay. Employers claims that the parties to the appeal did not have to pay postaward costs or interest either because payment was made within forty-five days or, alternatively, late payments were forgiven. However, the interest the appellants avoided by making a timely payment related to post-award interest on the $7.8 million, not to preaward interest.\\nEmployers next responds that Wisconsin does not permit vacatur of an arbitration award on manifest disregard of the law basis because that common law ground is not encompassed by \\u00a7 788.10, Stats. Employers bases its argument on DeBaker v. Shah, 194 Wis. 2d 104, 112, 533 N.W.2d 464, 466 (1995), stating that \\\"[a]n arbitration award will only be set aside where one of the grounds for vacatur under sec. 788.10(1), STATS., [is] present.\\\" (Emphasis added.) Although the trial court accepted this argument, we reject it. Lukowski v. Dankert, 184 Wis. 2d 142, 150, 515 N.W.2d 883, 886 (1994), held that we are \\\"guided by the general statutory standards listed in secs. 788.10 and 788.11, Stats., and by the standards developed at common law.\\\" (Footnote and citations omitted.) Further, our supreme court noted that \\u00a7 788.10 echoes the common law standards, implying that if an arbitrator manifestly disregarded the law, the arbitrator exceeded the scope of his powers, requiring vacatur under \\u00a7 788.10(1)(d), Stats. Madison Police Ass'n, 144 Wis. 2d at 586, 425 N.W.2d at 11. We conclude that DeBaker did not intend to overrule Lukowski, and the cases cited therein, absent a more direct signal.\\nNonetheless, we reject Lloyd's argument that the award must be vacated or modified because it represents a manifest disregard of Wisconsin's prejudgment interest laws. The appellant insurance companies are variously domiciled in the United States, England, France, Switzerland, Portugal, Italy, Brazil, Scotland, Turkey, Japan and Germany. Employers Ins. v. Jackson, 190 Wis. 2d 597, 602 n.1, 527 N.W.2d 681, 682 n.1 (1995). The arbitration clause does not require the panel to apply Wisconsin law. Lloyd's cites Milwaukee Teachers' Ass'n, where we affirmed the order vacating an arbitration award because the award did not abide by the principles of Wisconsin law. In Milwaukee Teachers' Ass'n, the collective bargaining agreement provided that the arbitrator \\\"shall be bound by the principles of law relating to the interpretation of contracts followed by Wisconsin courts.\\\" Id. at 796, 433 N.W.2d at 671. No similar clause is found in the agreement here.\\nWisconsin uses a \\\"groupings of contacts\\\" test to determine choice of law. Heath v. Zellmer, 35 Wis. 2d 578, 596, 151 N.W.2d 664, 672 (1967). Under that doctrine, the choice of law is based on the \\\"Predictability of results [;] Maintenance of interstate and international order[;] Simplification of the judicial task[;] Advancement of the forum's governmental interest[; and] Application of the better rule of law.\\\" Id. Assumably, the asbestos claims originated throughout the United States and the parties to this case are domiciled throughout the world. Our supreme court has questioned our restrictive prejudgment interest rules, and commentators have criticized these rules in general, so Wisconsin's prejudgment interest rules are not necessarily the \\\"better rule of law.\\\" See, e.g., Nelson v. Travelers Ins. Co., 102 Wis. 2d 159, 169, 306 N.W.2d 71, 76 (1981); see, e.g., Anthony E. Rothschild, Comment, Prejudgment Interest: Survey & Suggestion, 77 Nw. U. L. Rev. 192, 197 (1982). The panel could have applied the grouping of contacts doctrine to use. the substantive law of a number of other jurisdictions without manifestly disregarding the law.\\nIn fact, in its presentation to the panel, Lloyd's argued that the panel should apply English law and recognized that the panel might apply \\\"the law of any state of the United States . . . .\\\" We do hot mean to imply that the panel applied English law; rather, these comments illustrate that Lloyd's also recognized it would be reasonable for the panel to apply the law of a jurisdiction other than Wisconsin.\\nOther jurisdictions do not limit prejudgment interest in the same manner Wisconsin does. Lloyd's fails to overcome the presumption of validity of the arbitrator's award because it did not demonstrate by clear and convincing evidence that the award was invalid. See Milwaukee Sch. Dirs., 93 Wis. 2d at 422, 287 N.W.2d at 135. We will not overturn the amount of the award of prejudgment interest.\\nCONCLUSION\\nThe panel's determination that the parties intended to resolve the aggregation issue relating to all treaties from July 1966 to June 1973 derived its essence from the submission of the parties and did not show a manifest disregard of the law. Further, we conclude that the parties authorized the panel to allow Employers to present facts more than thirty days after the selection of the panel. Finally, the arbitration clause granted the panel the authority to award an amount in excess of the policy limits.\\nBy the Court. \\u2014 Judgment and order affirmed.\\nGenerally, a \\\"retrocession\\\" occurs when a reinsurer assumes the reinsurance obligations already assumed by another reinsurer. The concept of reinsurance developed because insurers did not want to turn away potentially large clients, but wanted to avoid the dangers of unexpectedly large, unforeseen liabilities. \\\"Reinsurance\\\" allows an insurer to accept potentially large-risk coverage, but reduce its exposure by rein-suring some part of it. In turn, a reinsurer can reduce its potential risk by reinsuring the reinsurance it has accepted. Employers Ins. v. Jackson, 190 Wis. 2d 597, 603 n.2, 527 N.W.2d 681, 682-83 n.2 (1995).\\nArticle XVII of the treaties provides:\\nIf any dispute or difference of opinion shall arise with reference to the interpretation of this Agreement or the rights with respect to any transaction involved, the dispute shall be referred to three arbitrators, who shall be executive officers of insurance companies domiciled in the U.S.A., one to be chosen by the Company, one to be chosen by the Retrocessionare, and the third by the two arbitrators so chosen within 30 days of their appointment. If either party refuses or neglects to appoint an arbitrator within 30 days after the receipt of written notice from the other party requesting it to do so, the requesting party may nominate two arbitrators, who shall choose the third. Each party shall submit its case to the arbitrators within 30 days of the appointment of the arbitrators. The arbitrators shall consider this Agreement an honorable engagement rather than merely a legal obligation; they are relieved of all judicial formalities and may abstain from following the strict rules of law. The decision of a majority of the arbitrators shall be final and binding on both parties. The expense of the arbitrators and of the arbitration shall be equally divided between each party. Any such arbitration shall take place in Wausau, Wisconsin, unless some other location is mutually agreed upon. (Emphasis added.)\\nLloyd's failed to name an arbitrator within 30 days of Employers' written request for arbitration. Lloyd's argued that Employers' initial request for arbitration did not give it notice because the request was sent to its law firm in Chicago, not to its London broker. In Employers Ins. v. Jackson, 190 Wis. 2d 597, 527 N.W.2d 681 (1995), our supreme court rejected Lloyd's argument and allowed Employers to choose two of the arbitrators.\\nSection 788.10(1), Stats., provides:\\n(1) In either of the following cases the court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration:\\n(a) Where the award was procured by corruption, fraud or undue means;\\n(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them;\\n(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;\\n(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.\\nSection 788.11(1), STATS., provides;\\nIn either of the following cases the court in and for the county wherein the award was made must make an order modifying or correcting the award upon the application of any party to the party:\\n(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award;\\n(b) Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted;\\n(c) Where the award is imperfect in matter of firm not affecting the merits of the controversy.\\nReview of the scope of the issue submitted to an arbitrator is not to be confused with review of whether the contractual arbitration clause encompasses a dispute, i.e., the arbitrability of the dispute. See Joint School Dist. No. 10 v. Jefferson Ed. Ass'n, 78 Wis. 2d 94, 106-10, 253 N.W.2d 536, 542-44 (1977).\\nLloyd's argues that \\\"submit\\\" unambiguously means placing an issue before a court for final determination, citing MacDermot v. Grant, 184 P. 396-97 (Cal. 1919); State v. Kitchin, 282 S.W.2d 1, 3 (Mo. 1955), citing 83 C.J.S. Submission 557; and Moore v. Moore, 240 S.E.2d 535, 538 (Va. 1978). These cases define \\\"submit\\\" in contexts distinguishable from our case and do not persuade us that \\\"submit\\\" as it appears in the treaties unambiguously requires the parties to complete placing their case before the panel. For instance, 83 C.J.S. Submissions of Controversy 559 (1953), describes \\\"submission of a controversy\\\" as\\na procedure whereby the parties, without instituting an action, submit to any court that would otherwise have jurisdiction . any matter of real controversy between them for final determination... on any agreed statement of facts. . . . (Emphasis added; footnote omitted.)\\nThis definition of \\\"submit\\\" assumes the parties have agreed upon the facts and thus the court would not need to hear any\\nevidence or keep discovery open. In our case, by contrast, one of the panel's functions was to find facts.\\nLloyd's also contends that the panel would have manifestly disregarded the law if it had awarded punitive damages. See Autumn Grove Joint Venture v. Rachlin, 138 Wis. 2d 273, 280, 405 N.W.2d 759, 762-63 (Ct. App. 1987) (Wisconsin does not allow punitive damages in breach of contract actions.). We do not address this issue because we conclude that the excess of the award over the policy limits could represent prejudgment interest. However, we note that Wisconsin law on punitive damages does not control because the arbitration agreement does not contain a choice of law clause. We also note that the widely used American Arbitration Association rules have been interpreted by a number of courts to allow arbitrators discretion to award punitive damages. Kenneth R. Davis, A Proposed Framework for Reviewing Punitive Damages Awards of Commercial Arbitrators, 58 Alb. L. Rev. 55, 64-65 (1994). Finally, some jurisdictions permit punitive damages in arbitration awards unless the arbitration agreement contains an express prohibition. Id. at 64.\\nNot all of the parties to the arbitration took part in the appeal to this court.\\nThe arbitration clause in this case does provide the panel is \\\"relieved of all judicial formalities and may abstain from following the strict rules of law.\\\" Even if Wisconsin law were applied, an argument could be made that the common law limit of 5% interest and its application only to liquidated or determinable damages fall within the panel's right to \\\"abstain from following the strict rules of law.\\\" There is an ongoing debate whether this Wisconsin common law is equitable or should be changed. See, e.g. Nelson v. Travelers Ins. Co., 102 Wis. 2d 159, 169, 306 N.W.2d 71, 76 (1981): \\\"We are no longer firmly convinced that only the unliquidated or unliquidable character of damages should determine whether interest is payable on the amount due.\\\"\\nUnder American law, clauses relieving arbitrators of any obligation to follow strict rules of law are permitted provided the hearing is fair. See Jonathan Bank & Patricia Winters, Reinsurance Arbitration: A U.S. Perspective, in Law & Prac. of Int'l Reinsurance Collections & Insolvency 553, 576-77 (David M. Spector & John Milligan-Whyte eds. 1988). Under English law, which Lloyd's argued applied at the final hearing before the panel, a clause relieving an arbitrator from following the \\\"strict rules of law\\\" entitles the arbitrator to interpret the meaning of the reinsurance contract with regard more generally to commercial considerations than would be permissible in a court of law. Home v. Mentor, 1 Lloyd's Rep. 473 (1989).\\nAn argument could also be made that the arbitration clause gives the panel flexibility to use a choice of law test other than the one used at the venue of arbitration (Wisconsin). Further, the clause does not necessarily bind the panel to exclusively use the law of a single jurisdiction.\\nMany jurisdictions' statutory prejudgment interest rates are greater than 5%. See Robert J. Sergesketter, Interesting Inequities: Bringing Symmetry & Certainty to Prejudgment Interest Law in Texas, 32 Hous. L. Rev. 231, 250-51 (Summer 1995). Further, jurisdictions are split regarding whether damages must be determinable before prejudgment interest can accrue. See Anthony E. Rothschild, Comment, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. Rev. 192, 199 (1982).\"}"

wis/11993643.json

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+"{\"id\": \"11993643\", \"name\": \"GMAC Mortgage Corp. of Pennsylvania, f/k/a GMAC Mortgage Corp. of Iowa, Plaintiff, Randall Cudd and Jim Claycomb, Intervenors-Respondents, v. Michael Gisvold and Drue Gisvold, Defendants-Appellants, United States of America, U.S. Attorney General, Chicago Title Insurance Company, a/k/a Old Republic National Insurance Company, Title Insurance Company of Minnesota, Defendants\", \"name_abbreviation\": \"GMAC Mortgage Corp. v. Gisvold\", \"decision_date\": \"1996-11-12\", \"docket_number\": \"No. 96-1663\", \"first_page\": \"397\", \"last_page\": \"404\", \"citations\": \"206 Wis. 2d 397\", \"volume\": \"206\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:38:44.139938+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Cane, P.J., LaRocque and Myse, JJ.\", \"parties\": \"GMAC Mortgage Corp. of Pennsylvania, f/k/a GMAC Mortgage Corp. of Iowa, Plaintiff, Randall Cudd and Jim Claycomb, Intervenors-Respondents, v. Michael Gisvold and Drue Gisvold, Defendants-Appellants, United States of America, U.S. Attorney General, Chicago Title Insurance Company, a/k/a Old Republic National Insurance Company, Title Insurance Company of Minnesota, Defendants.\", \"head_matter\": \"GMAC Mortgage Corp. of Pennsylvania, f/k/a GMAC Mortgage Corp. of Iowa, Plaintiff, Randall Cudd and Jim Claycomb, Intervenors-Respondents, v. Michael Gisvold and Drue Gisvold, Defendants-Appellants, United States of America, U.S. Attorney General, Chicago Title Insurance Company, a/k/a Old Republic National Insurance Company, Title Insurance Company of Minnesota, Defendants.\\nCourt of Appeals\\nNo. 96-1663.\\nSubmitted on briefs November 5, 1996.\\nDecided November 12, 1996.\\n(Also reported in 557 N.W.2d 826.)\\nFor the defendants-appellants the cause was submitted on the briefs of R. Michael Waterman of Mudge, Porter, Lundeen & Seguin, S.C., Hudson.\\nFor the intervenors-respondents the cause was submitted on the brief of Catherine R. Quiggle of Rodli, Beskar, Boles & Krueger, S.C., River Falls.\\nBefore Cane, P.J., LaRocque and Myse, JJ.\\nPetition to review granted.\", \"word_count\": \"1507\", \"char_count\": \"9213\", \"text\": \"MYSE, J.\\nIn this mortgage foreclosure action, Michael and Drue Gisvold appeal an order denying their attempted redemption and allowing the successful bidders at the sheriffs sale to complete the purchase. The Gisvolds argue that the trial court lacked the authority to allow the purchase to be completed after the bidders failed to deposit the remainder of the purchase price within the required period under \\u00a7 846.17, STATS. Because we conclude the trial court has no discretion to waive the requirements of \\u00a7 846.17, the attempted purchase was forfeited and the Gisvolds' redemption was valid.\\nThe facts are undisputed. In 1992, the Gisvolds defaulted on a home mortgage held by GMAC and GMAC began foreclosure proceedings. A foreclosure judgment was entered on April 26, 1993. Numerous foreclosure sales were scheduled and subsequently cancelled when the Gisvolds filed for bankruptcy but then voluntarily dismissed these filings after the sales had been cancelled.\\nThe set of facts pertinent to this appeal stem from the foreclosure sale of June 13,1995. Intervenors, Randall Cudd and Jim Claycomb, were the highest bidders at this sale and made the requisite ten percent deposit. The sale was set for confirmation on June 27, 1995. Drue Gisvold filed for bankruptcy protection prior to the confirmation hearing and it was cancelled. Drue Gisvold voluntarily dismissed the bankruptcy filing on July 25, 1995, and the confirmation hearing was rescheduled for October 3, 1995. On October 3, 1995, Michael Gisvold filed for bankruptcy relief, which he voluntarily dismissed on October 19, 1995. This filing delayed the confirmation hearing until December 27, 1995.\\nThe court confirmed the sale at the December hearing but stayed entry of the order until January 15, 1996. The Gisvolds and GMAC, by agreement, stayed this deadline until January 17, 1996. On January 17, 1996, approximately three hours before the deadline, Michael Gisvold filed for ch. 13 bankruptcy relief again. This action was involuntarily dismissed on March 12,1996. No notice was given to the intervenors of the dismissal. On March 19,1996, the Gisvolds paid the balance due on the mortgage to the circuit court. GMAC moved for determination whether the Gisvolds had redeemed the property or whether the intervenors had forfeited their right to the property.\\nThe circuit court held that the \\u00a7 846.17, STATS., could not be applied literally to this case and excused the intervenors for failing to pay the remainder of the purchase price within the. ten days after the sale was confirmed. The court denied the Gisvolds' claim that they had redeemed the property and allowed the inter-venors to purchase the property.\\nThe Gisvolds contend that they validly redeemed the property because after the intervenors missed the statutory deadline to deposit the remainder of the purchase price, a new sale needed to be ordered and, until that sale was held and confirmed, they could redeem the property. We agree. The determinative issue in this case is whether the trial court had the authority to waive the requirement that the balance of the purchase price be paid within ten days after confirmation of the sale pursuant to \\u00a7 846.17, Stats. We conclude there is no discretion to waive this requirement and therefore the order is reversed.\\nInitially, the parties argue whether the bankruptcy filing stayed the Gisvolds' redemption rights and where the authority came from in the bankruptcy code, 11 U.S.C. \\u00a7 108 or \\u00a7 362. We do not resolve this issue because it is irrelevant to the analysis here. The intervenors failed to deposit the remainder of the purchase price within ten days of the confirmation of the sale even if the bankruptcy filing stayed the redemption period.\\nThis case presents a question of statutory construction. Questions of statutory construction are questions of law this court reviews without deference to the trial court. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992). In determining the legislature's intent, we first look to the language of the statute itself. State v. Wicks, 168 Wis. 2d 703, 706, 484 N.W.2d 378, 379 (Ct. App. 1992). The word \\\"shall\\\" is presumed mandatory when used in a statute. WHEDA v. Bay Shore Apts., 200 Wis. 2d 129, 141, 546 N.W.2d 480, 485 (Ct. App. 1996). While \\\"shall\\\" may, under certain circumstances, be construed as directory to carry out the legislature's intent, Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 571, 263 N.W.2d 214, 217 (1978), those circumstances are not present here. Because the statute contains the penalty for failing to pay the remainder of the purchase price, we conclude that \\\"shall\\\" is mandatory in this context. See id.\\nSection 846.17, Stats., requires the purchaser to pay the remaining part of the price within ten days of the confirmation of the sale. If payment is not made within ten days, the purchaser forfeits the deposit and a new sale is mandated. Id. \\\"In the event of the failure of such purchaser to pay [the remaining amount] the amount so deposited shall be forfeited . and a resale shall be [held of the] premises .\\\" Id. It is undisputed that the intervenors failed to pay the balance within the required ten days. The intervenors, however, argue that this statute should \\\"not be applied literally to this case.\\\" We see no alternative.\\nSection 846.17, STATS., requires payment in ten days or the deposit is forfeited and a new sale is required. The statute lists no exceptions, nor have any been created in the case law. The term \\\"shall\\\" was used in the statute requiring the forfeiture of the deposit and a new sale once the ten-day limit is exceeded. It is true that foreclosure proceedings are equitable in nature, Frick v. Howard, 23 Wis. 2d 86, 96, 126 N.W.2d 619, 625 (1964), and that the trial court has discretion in confirming the foreclosure sale. Gumz v. Chickering, 19 Wis. 2d 625, 633-34, 121 N.W.2d 279, 283-84 (1963). This discretion does not apply, however, to the application of \\u00a7 846.17.\\nEquity does not allow a court to ignore a statutory mandate. First Federated Sav. Bank v. McDonah, 143 Wis. 2d 429, 434, 422 N.W.2d 113, 115 (Ct. App. 1988). Rather, equity gives the court power to achieve a fair result in the absence of or in conjunction with a statute. See id. As a result, the trial court had no authority to waive the requirement of this statute because the intervenors were not given notice of the dismissal of the Gisvolds' bankruptcy claim. The Gisvolds had no obligation to provide notice of the bankruptcy proceedings to the intervenors. The intervenors were not a party to the Gisvolds' bankruptcy action, although they could have intervened had they desired. Bankruptcy Rule 2018(a). The burden fell on the intervenors to keep apprised of the matters concerning their intended purchase.\\nThe intervenors failed to purchase the property by paying the remainder of the purchase price. The trial court had no authority to waive this failure. Therefore, pursuant to \\u00a7 846.17, STATS., a new sale was required. Parties can redeem property until the foreclosure sale is confirmed. Gerhardt v. Ellis, 134 Wis. 191, 114 N.W. 495 (1908), \\u00a7 846.13, STATS. The intervenors' forfeiture placed the Gisvolds in the position they were in before any sale had occurred. The Gisvolds paid the remaining amount of the mortgage before another sale was held, much less confirmed. This is a valid redemption.\\nThe Gisvolds were attempting to manipulate the system by abusing the automatic stay provision of the bankruptcy code. It is disturbing that this decision appears to reward their efforts. The only answer to this abuse of the system is that they may be accountable to the Federal Bankruptcy Court. We should note that the Gisvolds' filings did not prevent the buyers from complying with the statutory requirement that the balance of the purchase price be paid within ten days of the confirmation sale. We also do not decide whether the court could have granted a motion to extend the time of deposit until the bankruptcy stay was lifted. We are required to conclude that a statute requiring the balance of the purchase price to be paid within ten days means precisely what it says. By failing to comply with the statute, the intervenors forfeited their deposit.\\nBy the Court. \\u2014 Order reversed.\"}"

wis/12117933.json

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+"{\"id\": \"12117933\", \"name\": \"Estate of Delmady: Patrykus and another, Appellants, vs. Fisher, Special Administrator, and another, Respondents\", \"name_abbreviation\": \"Patrykus v. Fisher\", \"decision_date\": \"1947-05-13\", \"docket_number\": \"\", \"first_page\": \"389\", \"last_page\": \"393\", \"citations\": \"250 Wis. 389\", \"volume\": \"250\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:13:43.964588+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Estate of Delmady: Patrykus and another, Appellants, vs. Fisher, Special Administrator, and another, Respondents.\", \"head_matter\": \"Estate of Delmady: Patrykus and another, Appellants, vs. Fisher, Special Administrator, and another, Respondents.\\nApril 8\\nMay 13, 1947.\\nTheo. W. Braseau of Wisconsin Rapids, for the appellants.\\nW. E. Fisher of Stevens Point, for the respondents.\", \"word_count\": \"1209\", \"char_count\": \"7125\", \"text\": \"Wickhem, J.\\nMovants' first contention is that sec. 274.11, Stats., as it stood prior to amendment by rule of this court required notice to be served on all adverse parties whether they appeared in the action or not and that this was not done; that the rule of this court enacted July 1, 1945, in the exercise of its rule-making power and amending the statute by inserting the words \\\"who appeared in the action or proceeding\\\" establishes a rule of substantive law and is in excess of the powers of the court. It is conceded that the notice of appeal was properly served if the statute as amended by rule of court is valid.\\nMovants contend that appeals being statutory in origin cannot be dealt with by this court under its rule-making power. Benton v. Institute of Posturology, Inc., 243 Wis. 514, 11 N. W. (2d) 133. In this case it was suggested that sec. 274.12, Stats., as it then stood produced so much inconvenience and injustice and was so nearly impossible to apply that legislative relief should be sought. Thereafter, the advisory committee recommended adoption of the amendment to the statute by rule of court after concluding that the subject matter of the amendment was procedural in character since it neither created nor conditioned the right of appeal but simply regulated the procedure upon appeal. The matter was considered by this court and the conclusion reached that the right of appeal having been established by the legislature such a procedural detail as is involved in the amendment is within the power of the court to regulate under its rule-making power. We adhere to this conclusion.\\nThe United States supreme court in Kring v. Missouri, 107 U. S. 221, 232, 2 Sup. Ct. 443, 27 L. Ed. 506, adopts as \\\"accurate the following statement in Bishop on Criminal Procedure. Practice means \\\"those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in.\\\" We regard this statement as sound and applicable. The subject matter of the amendment involved here is procedural because designed and calculated to promote the fair, expeditious, and economical administration of appeals in order that the substantial rights of the parties may be determined without delay, confusion, or vexation. We appreciate the need for exercising care and discrimination because some rules of substantive law are couched in terms of procedure. For example, a conclusive presumption appears to be a rule of evidence but by making immaterial the fact conclusively presumed states a rule of substantive law. Certain privileges arising out of specified confidential relationships are protected by what are in terms rules'of evidence excluding forbidden disclosures. These rules, however, do not exist to aid the ascertainment of truth, clarify the issues, or expedite trials but rather to enforce a general public policy having no relation to matters of procedure. The amendment in question merely regulates the manner of bringing parties before this court upon an appeal. It neither creates nor conditions a litigant's right to appeal. It has to do with the mechanics of properly bringing an appeal to the attention of this court and its purpose is to furnish a just and expeditious procedure in order that the substantial right to appeal may not be lost in a welter of red tape. To repeat the standard recognized by the United States supreme court, the rule directs the course of proceeding to bring the parties into court and the course of the court after they are brought in. We conclude that the amendment is safely within the rule-making power. We are also of the view that since rules of court are statutory in form the principle that obtains as to statutes changing procedural rules is applicable to them. Such rules have always been applied to pending cases although enacted after the decision of the trial judge. State ex rel. Sheldon v. Dahl, 150 Wis. 73, 135 N. W. 474; Read v. Madison, 162 Wis. 94, 155 N. W. 954; Levy v. Birnschein, 206 Wis. 486, 240 N. W. 140; Pawlowski v. Eskofski, 209 Wis. 189, 244 N. W. 611; St. Joseph's Hospital v. Maternity Hospital, 224 Wis. 422, 272 N. W. 669, 273 N. W. 791.\\nThe next contention is that there should be a dismissal for failure to file the record in this court within twenty days from perfecting the appeal. The order appealed from was entered June 15, 1945. JThe time during which an appeal could be taken expired August 14, 1945. This time could have been extended by the county court to June 15,1946, for \\\"any cause without fault on his part . . . but not later than one year after the act complained of\\\" (sec. 324.05, Stats.). Theappeal was actually taken August 10, 1945. The record was not sent from the county court until February 6,1947, and was not filed in this court until February 8, 1947. It is contended'that this was a violation of Rule 4 of the rules of this court which requires filing the return within twenty days after perfecting the appeal. It appears from the affidavits filed in connection with the motion that decedent had two brothers, Owen Tracy and Charles Brown, and a sister, Mary Delmady; that the whereabouts of Brown and Mary Delmady were unknown at the time of the hearing and that they had not been heard from for more than twenty years prior to the death of decedent; that neither Charles Brown nor Mary Delmady appeared in the action, the sole party appearing being Owen Tracy, who contested the probate of the will. After the notice of appeal was served on August 10 and 11, 1945, a bill of exceptions was prepared, served, and settled. Thereafter, appellants were notified by Tracy's attorney that Tracy had died, but the time and place of his death were not communicated to them. Appellants conducted an investigation to determine when and where Tracy died and of what state he was a resident at the time of his death. Thereafter, being unsuccessful, appellants requested Tracy's attorney to have-an administrator appointed of his estate but the latter, being uncertain as to his right to represent the.heirs of Tracy, made no attempt to have such appointment made. After eight months and numerous requests for the appointment of such an administrator appellants caused a special administrator to be appointed so that service of briefs, pleadings, and other matters in connection with the appeal might be served upon him. ' It thus appears that the return was delayed to obtain a substitution of parties and to have the proper parties before this court. The motion to dismiss was not made until after the record was actually filed in this court.\\nFrom the foregoing we conclude that there was no neglect to prosecute this appeal; that the delay was unavoidable and in no way prejudiced respondents.\\nFor the foregoing reason the motion to dismiss the appeal is denied.\\nBy the Court. \\u2014 Motion denied, with $25 costs.\"}"

wis/12279218.json

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+"{\"id\": \"12279218\", \"name\": \"Holtz v. Steiner\", \"name_abbreviation\": \"Holtz v. Steiner\", \"decision_date\": \"2017-02-01\", \"docket_number\": \"2015AP001859, 2016AP000146\", \"first_page\": \"435\", \"last_page\": \"435\", \"citations\": \"374 Wis. 2d 435\", \"volume\": \"374\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:43:40.587445+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Holtz v. Steiner\\u2020\", \"head_matter\": \"Holtz v. Steiner\\u2020\\n2015AP001859, 2016AP000146\\n02-01-2017\", \"word_count\": \"7\", \"char_count\": \"65\", \"text\": \"Affirmed\"}"

wis/12559843.json

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+"{\"id\": \"12559843\", \"name\": \"BUENA VISTA HALL, LLC, Petitioner-Appellant, v. CITY OF MILWAUKEE and City of Milwaukee License Committee, Respondents-Respondents.\", \"name_abbreviation\": \"Buena Vista Hall, LLC v. City of Milwaukee\", \"decision_date\": \"2018-09-11\", \"docket_number\": \"Appeal No. 2017AP1943\", \"first_page\": \"528\", \"last_page\": \"528\", \"citations\": \"921 N.W.2d 528\", \"volume\": \"921\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Wisconsin\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-27T21:03:26.888961+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"BUENA VISTA HALL, LLC, Petitioner-Appellant,\\nv.\\nCITY OF MILWAUKEE and City of Milwaukee License Committee, Respondents-Respondents.\", \"head_matter\": \"BUENA VISTA HALL, LLC, Petitioner-Appellant,\\nv.\\nCITY OF MILWAUKEE and City of Milwaukee License Committee, Respondents-Respondents.\\nAppeal No. 2017AP1943\\nCourt of Appeals of Wisconsin.\\nDATED AND FILED September 11, 2018\", \"word_count\": \"5335\", \"char_count\": \"33280\", \"text\": \"PER CURIAM.\\n\\u00b6 1 Upon a recommendation from the City of Milwaukee Licenses Committee (Licenses Committee), the City of Milwaukee Common Council (Common Council) denied an application for a liquor license that had been submitted by Buena Vista Hall, LLC (Buena Vista). Buena Vista sought judicial review of the Common Council's decision, which the circuit court affirmed. On appeal, Buena Vista argues the circuit court erred by: (1) concluding Buena Vista was not entitled to a writ of mandamus; (2) denying Buena Vista's motion to expand the scope of review; and (3) affirming the Common Council's decision on certiorari review. We reject each of these arguments and affirm.\\nBACKGROUND\\n\\u00b6 2 Buena Vista is a Wisconsin limited liability corporation. Elias Vidrio is its registered agent. In 2015, Buena Vista purchased a property located at 3000 South 13th Street in Milwaukee (the Property). Buena Vista asserts that, prior to its purchase, the Property had served as a \\\"tavern and assembly hall\\\" for over 100 years, and previous owners had successfully obtained \\\"Class B-type\\\" liquor licenses. According to Buena Vista, the individual who owned the Property immediately before Buena Vista operated the premises \\\"relatively trouble-free,\\\" but the individual who owned the Property before that time \\\"had his license revoked due to poor operation, unruly customers, and criminal activities, including drug dealing.\\\"\\n\\u00b6 3 Buena Vista contends that, after purchasing the Property, it performed extensive updates and repairs, the cost of which exceeded $100,000. In February 2016, Buena Vista submitted an application to the City of Milwaukee Board of Zoning Appeals to use the Property as an assembly hall. The Board approved that use, and Buena Vista applied for a Class B liquor license.\\n\\u00b6 4 On September 6, 2016, the Licenses Committee held a public hearing regarding Buena Vista's liquor license application. The five-member committee was chaired by alderman Anthony Zielinski, who represents the aldermanic district where the Property is located.\\n\\u00b6 5 During the September 6 hearing, three witnesses spoke in favor of Buena Vista's liquor license application: area business owners Alex Ferreira and William Horst; and Elias Vidrio's daughter, Jennifer Vidrio. Three witnesses also spoke against Buena Vista's application: Robert Montemayor, the owner of the Monterrey Market, a grocery store located next to the Property; and Monterrey Market employees Sergio Montalgo and Jorge Meraz. Montemayor opposed the application based on concerns about insufficient parking in the area. He also noted that, when the Property had previously been used as a tavern and assembly hall, its customers had damaged his store and left garbage in his parking lot. Montalgo-who also lived in the neighborhood-similarly voiced concerns about parking, street congestion, and past conduct of the Property's patrons. Meraz, who owned a rental property in the neighborhood, also opposed the application due to concerns about parking and patrons leaving garbage on his property.\\n\\u00b6 6 Upon questioning by Buena Vista's attorney, Montemayor admitted that he had made a $200 donation to Zielinski's campaign in 2012 and that his wife had donated $250 to Zielinski's campaign in 2013. Buena Vista's attorney also asserted during the hearing that campaign finance reports showed Montemayor's wife and two of his employees had donated a total of $1388 to Zielinski's campaign since 2012.\\n\\u00b6 7 Buena Vista subsequently requested that Zielinski recuse himself from voting on whether to recommend that the Common Council approve Buena Vista's liquor license application. Zielinski declined to recuse himself. He instead moved to recommend the denial of Buena Vista's application, based on the concentration of liquor licenses in the neighborhood surrounding the Property and \\\"neighborhood . objections.\\\" Two members of the Licenses Committee abstained from voting. The three remaining members-including Zielinski-voted to recommend denial of Buena Vista's application. The Common Council later denied the application by a unanimous vote. Zielinski was one of the fifteen Common Council members who voted to deny the application.\\n\\u00b6 8 Buena Vista then filed a petition for judicial review of the Common Council's decision and for a writ of mandamus compelling the Common Council to issue it a liquor license. As relevant here, Buena Vista argued that Zielinski was biased against it, and the Licenses Committee's decision was therefore arbitrary, capricious, and contrary to law. Buena Vista also moved the circuit court to expand the scope of review in order to permit Buena Vista to \\\"take testimony, depositions and written interrogatories\\\" related to Zielinski's alleged bias.\\n\\u00b6 9 Following briefing by the parties, the circuit court issued an order denying Buena Vista's petition for a writ of mandamus, denying Buena Vista's motion to expand the scope of review, and affirming the Common Council's decision to deny Buena Vista's liquor license application. As for the first issue, the court concluded a writ of mandamus was an \\\"inappropriate\\\" remedy \\\"for a discretionary action like licensing,\\\" and, in any event, Buena Vista had failed to \\\"satisfy the requirements for a writ of mandamus.\\\" With respect to the second issue, the court concluded Buena Vista was not entitled to expand the scope of review because it had failed to demonstrate a prima facie case of either actual bias or an impermissible risk of bias by Zielinski. Finally, applying certiorari review, the court determined there was no basis for it to overturn the Common Council's decision to deny Buena Vista's liquor license application. Buena Vista now appeals.\\nDISCUSSION\\nI. Writ of mandamus\\n\\u00b6 10 Buena Vista contends the circuit court erred by denying its petition for a writ of mandamus. A writ of mandamus is an \\\"extraordinary legal remedy,\\\" Lake Bluff Hous. Partners v. City of S. Milwaukee , 197 Wis. 2d 157, 170, 540 N.W.2d 189 (1995), that is used \\\"to compel a public officer to perform a duty of his [or her] office presently due to be performed,\\\" State ex rel. Marberry v. Macht , 2003 WI 79, \\u00b6 27, 262 Wis. 2d 720, 665 N.W.2d 155. A party seeking a writ of mandamus must establish that: (1) the writ is based on a clear, specific legal right that is free from substantial doubt; (2) the duty sought to be enforced is positive and plain; (3) substantial damage will result if the duty is not performed; and (4) no other adequate remedy exists at law. Lake Bluff , 197 Wis. 2d at 170. We will uphold a circuit court's decision to grant or deny a writ of mandamus absent an erroneous exercise of discretion. Id.\\n\\u00b6 11 Here, Buena Vista asked the circuit court to issue a writ of mandamus compelling the Common Council to issue Buena Vista a liquor license. We conclude the court did not erroneously exercise its discretion by denying that request. Instead, the court correctly determined that Buena Vista had failed to demonstrate the existence of three of the requirements for issuance of the writ.\\n\\u00b6 12 First, the circuit court correctly concluded that Buena Vista has no clear legal right to the issuance of a liquor license. Wisconsin courts have long held that a liquor license is a privilege, not a right. Moedern v. McGinnis , 70 Wis. 2d 1056, 1066, 236 N.W.2d 240 (1975). Whether a license should be issued to a particular applicant is a matter of local concern, State ex rel. Smith v. City of Oak Creek , 139 Wis. 2d 788, 801, 407 N.W.2d 901 (1987), and is within the discretion of the licensing authority, Rawn v. City of Superior , 242 Wis. 632, 636-37, 9 N.W.2d 87 (1943). In this case, the Common Council exercised its discretion not to issue Buena Vista a liquor license.\\n\\u00b6 13 While not disputing that it has no clear legal right to a liquor license, Buena Vista argues it \\\"does have a . clear legal right to due process and a fair and impartial hearing.\\\" It contends that right was violated because Zielinski was biased against it. However, for the reasons explained below, we reject Buena Vista's argument that Zielinski was biased. See infra \\u00b6 20-30. In addition, even if we concluded the proceedings before the Licenses Committee violated Buena Vista's right to due process, the remedy would not be a writ of mandamus compelling the Common Council to issue Buena Vista a liquor license. Instead, Buena Vista would simply be entitled to a remand to the Licenses Committee for a new hearing that complied with due process. See Sliwinski v. Board of Fire & Police Comm'rs of Milwaukee , 2006 WI App 27, \\u00b6 16, 289 Wis. 2d 422, 711 N.W.2d 271 (holding that a remand for a new hearing was the appropriate remedy for a due process violation, rather than a court order compelling the reinstatement of the plaintiff's employment).\\n\\u00b6 14 Next, the circuit court correctly concluded that Buena Vista failed to establish the second requirement for mandamus relief-the existence of a positive and plain duty to issue a liquor license. Again, whether to issue a liquor license rests within the discretion of the licensing authority. Rawn , 242 Wis. at 636-37. In this case, the Licenses Committee considered Buena Vista's liquor license application, provided Buena Vista with a hearing, and then exercised its discretion to recommend denial of Buena Vista's application. The Common Council subsequently exercised its own discretion to deny the application, based on the Licenses Committee's recommendation. The Licenses Committee and Common Council thus fulfilled their plain and positive duties with respect to Buena Vista's application.\\n\\u00b6 15 Similar to its previous argument, Buena Vista contends that, although the Common Council may not have had a plain and positive duty to issue it a liquor license, the Licenses Committee had \\\"a plain legal duty to comport with due process requirements, remain fair and impartial[,] and act according to law.\\\" This argument is again based on Buena Vista's assertion that Zielinski was biased. However, as already noted, we reject that argument below. See infra \\u00b6 20-30. Furthermore, as noted above, even if the proceedings before the Licenses Committee violated due process, the proper remedy would be a remand for a new hearing, not a writ of mandamus compelling the Common Council to issue Buena Vista a liquor license. Buena Vista also argues the Licenses Committee has a plain legal duty to \\\"issue or deny licenses in a manner that is not arbitrary, oppressive, or unreasonable.\\\" This argument fails because, as explained below, we reject Buena Vista's argument that the decision to deny its liquor license application was arbitrary, oppressive, or unreasonable. See infra , \\u00b6 33-38.\\n\\u00b6 16 Finally, the circuit court appropriately concluded that Buena Vista failed to establish the fourth requirement for mandamus relief-the lack of another adequate remedy at law. As the court correctly observed, if Buena Vista believed that either the Licenses Committee or the Common Council acted inappropriately with respect to its liquor license application, it had an adequate legal remedy to address that wrong-namely, certiorari review. See WIS. STAT. \\u00a7 125.12(2)(d) (permitting judicial review of a municipality's decision to grant or deny a liquor license); Nowell v. City of Wausau , 2013 WI 88, \\u00b6 3, 351 Wis. 2d 1, 838 N.W.2d 852 (holding that certiorari is the correct standard of review under \\u00a7 125.12(2)(d) ). Buena Vista does not address the court's conclusion that it was not entitled to mandamus relief due to the availability of certiorari review, and it thereby concedes that point. See Schlieper v. DNR , 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).\\n\\u00b6 17 For the reasons set forth above, we conclude the circuit court properly determined that Buena Vista failed to establish three of the four requirements for mandamus relief. As such, the court did not erroneously exercise its discretion by denying Buena Vista's petition for a writ of mandamus.\\nII. Motion to expand the scope of review\\n\\u00b6 18 The circuit court also denied Buena Vista's motion to expand the scope of review in order to permit Buena Vista to conduct additional discovery regarding Zielinski's alleged bias. The \\\"general rule\\\" on certiorari review is that the circuit court \\\"does not take evidence on the merits of the case and the scope of review is limited to the record presented to the tribunal whose decision is under review.\\\" Sills v. Walworth Cty. Land Mgmt. Comm. , 2002 WI App 111, \\u00b6 36, 254 Wis. 2d 538, 648 N.W.2d 878. However, in cases involving alleged bias by a municipal decision maker, \\\"the public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record where evidence outside of that record demonstrates procedural unfairness.\\\" Id. , \\u00b6 42.\\n\\u00b6 19 Nonetheless, before a circuit court may authorize such expansion, the party seeking to expand the scope of review must make a prima facie showing of bias. Id. This can be done by making a prima facie showing either that the decision maker was biased in fact or that its conduct demonstrated an impermissible risk of bias. See id. , \\u00b6 43 (citing Marris v. City of Cedarburg , 176 Wis. 2d 14, 25, 498 N.W.2d 842 (1993) ). When evaluating whether a party has made this showing, we must keep in mind that the decision maker is entitled to a presumption of honesty and integrity. See id.\\n\\u00b6 20 Buena Vista argues six factors in this case demonstrate a prima facie showing of bias by Zielinski: (1) Zielinski's receipt of campaign donations from Montemayor, his wife, and his employees; (2) Montemayor's concession during the Licenses Committee hearing that he had made efforts to purchase the Property before Buena Vista purchased it; (3) the fact that the only witnesses who testified against Buena Vista's application were Montemayor and his employees; (4) an email from Zielinski to the Board of Zoning Appeals, which Buena Vista contends \\\"indicat[ed] [Zielinski's] prejudgment of the matter\\\"; (5) the Licenses Committee's failure to credit evidence showing that Buena Vista had addressed concerns regarding parking; and (6) the Licenses Committee's failure to credit evidence that Buena Vista had addressed concerns regarding security. We do not agree that these factors-either individually or cumulatively-are sufficient to make a prima facie showing of bias.\\n\\u00b6 21 With respect to the campaign contributions, it is apparently undisputed that Montemayor made a $200 donation to Zielinski's campaign in September 2012, that Montemayor's wife made a $250 donation to his campaign sometime during 2013, and that Montemayor's wife and two of his employees donated a total of $1388 between 2012 and September 2016. We agree with the circuit court that these relatively small amounts-donated as many as four years before the hearing in question-are insufficient to demonstrate a prima facie showing of bias by Zielinski. Cf. DeBaker v. Shah , 194 Wis. 2d 104, 117-18, 533 N.W.2d 464 (1995) (concluding an arbitrator was not \\\"evidently partial\\\" based on his receipt of $1475 in campaign contributions from members of a law firm representing one of the parties in an arbitration). This conclusion is particularly true given the presumption of honesty and integrity to which Zielinski is entitled. See Sills , 254 Wis. 2d 538, \\u00b6 43.\\n\\u00b6 22 Buena Vista also relies on Montemayor's concession during the Licenses Committee hearing that he had previously made efforts to purchase the Property. In addition, Buena Vista emphasizes that the only witnesses to testify against its liquor license application were Montemayor and two of his employees. We fail to see how these factors demonstrate a prima facie showing of bias by Zielinski. The information Buena Vista cites was before the Licenses Committee. Although it could have provided a basis for the Licenses Committee to infer that Montemayor and his employees were not credible witnesses, the Licenses Committee clearly chose not to draw that inference. Credibility determinations are within the province of the Licenses Committee, not this court. See State ex rel. Ortega v. McCaughtry , 221 Wis. 2d 376, 391, 585 N.W.2d 640 (Ct. App. 1998). Buena Vista does not cite any evidence indicating that the Licenses Committee refused to consider the information cited above, or that Zielinski improperly influenced the Licenses Committee's decision to rely on the testimony of Montemayor and his employees. On these facts, we cannot conclude that the factors Buena Vista cites provide evidence of bias on Zielinski's part.\\n\\u00b6 23 Buena Vista next cites an email Zielinski allegedly sent to the Board of Zoning Appeals, which, according to Buena Vista, shows that Zielinski prejudged Buena Vista's liquor license application. We reject this argument because-as the circuit court correctly noted-the email in question is not in the record. We therefore cannot rely on the email when assessing Zielinski's alleged bias. See Jenkins v. Sabourin , 104 Wis. 2d 309, 313-14, 311 N.W.2d 600 (1981).\\n\\u00b6 24 Finally, Buena Vista argues it submitted evidence at the hearing that should have alleviated the Licenses Committee's concerns regarding parking and security. Specifically, Buena Vista asserts there was evidence at the hearing that it had arranged to rent parking spaces in a lot owned by a nearby business, and that it had retained a private security firm to address any concerns regarding the conduct of its patrons. The presence of this evidence does not support a prima facie showing of bias. The Licenses Committee is charged with weighing the evidence before it, see Ortega , 221 Wis. 2d at 391, and it was not required to accept Buena Vista's contention that the measures it had taken would adequately address the parking and security issues testified to by Montemayor and his employees. Again, Buena Vista does not cite any evidence suggesting that Zielinski improperly influenced the other committee members in their consideration of Buena Vista's evidence. Under these circumstances, the fact that the Licenses Committee did not find Buena Vista's evidence persuasive does not support a conclusion that Zielinski-or any other member of the Licenses Committee-was biased. Moreover, Buena Vista fails to cite any evidence indicating that Zielinski improperly influenced the Common Council's ultimate decision to deny Buena Vista's application.\\n\\u00b6 25 In support of its assertion that it made a prima facie showing of bias, Buena Vista relies heavily on two cases: Marris , 176 Wis. 2d 14, and Keen v. Dane County Board of Supervisors , 2004 WI App 26, 269 Wis. 2d 488, 676 N.W.2d 154 (2003). However, both are distinguishable.\\n\\u00b6 26 In Marris , a zoning board concluded a landowner's property had lost its legal nonconforming use status. Marris , 176 Wis. 2d at 23. Before the board reached that decision, its chairperson made statements indicating that the landowner's legal position was a \\\" 'loophole' in need of 'closing' \\\" and that the board members and assistant city attorney should try to \\\"get her [the landowner] on the Leona Helmsley rule.\\\" Id. at 27. On appeal, the landowner argued these statements showed that the board chairperson had prejudged the matter, thus creating an impermissibly high risk of bias. See id. at 19.\\n\\u00b6 27 In addressing the landowner's argument, we observed that \\\"a board member's opinions on land use and preferences regarding land development should not necessarily disqualify the member from hearing a zoning matter\\\" because such decision makers are \\\"selected from the local area\\\" and \\\"can be expected to have opinions about local zoning issues.\\\" Id. at 26. However, we held that a \\\"clear statement 'suggesting that a decision has already been reached, or prejudged, should suffice to invalidate a decision.' \\\" Id. (citation omitted). We concluded such circumstances were present in Marris , based largely on the chairperson's statement that local authorities should try to \\\"get\\\" the landowner. See id. at 29-31. We concluded that statement-considered together with the chairperson's \\\"loophole\\\" statement-revealed an impermissibly high risk of bias because \\\"[i]mpartial decision-makers do not 'get' the parties before them.\\\" See id. at 31. Here, in contrast, Buena Vista does not cite any statements by Zielinski expressing the type of animus evidenced by the board chairperson in Marris or indicating that Zielinski had prejudged Buena Vista's liquor license application.\\n\\u00b6 28 Keen involved a challenge to a conditional use permit allowing P & D to operate a gravel pit. See Keen , 269 Wis. 2d 488, \\u00b6 2. On appeal, individuals opposed to the gravel pit alleged that members of the county zoning committee were biased in favor of P & D. Id. As evidence of bias, they noted that one of the committee members had previously co-signed a letter vouching for the quality of P & D's work, which P & D had then included in its permit application. Id. In the letter, the committee member stated P & D had \\\"always stood out above the rest in [its] efforts and success in being a good corporate citizen and caretaker of the land,\\\" and his \\\"close and personal view\\\" confirmed P & D's good track record and recommended it as a good business to operate a gravel pit in the community. Id. , \\u00b6 15.\\n\\u00b6 29 We concluded these statements demonstrated an impermissibly high risk of bias because, when P & D submitted the committee member's letter as part of its permit application, the committee member \\\"became an advocate for P & D.\\\" Id. We reasoned the committee member could not \\\"be both an advocate and an impartial decisionmaker on this issue.\\\" Id. We stated his advocacy \\\"surpasse[d] merely forming an opinion about a subject\\\" and was therefore sufficient to \\\"overcome[ ] the presumption of integrity and honesty.\\\" Id. Conversely, in this case, the record contains no evidence demonstrating that Zielinski made statements advocating against Buena Vista's liquor license application. While Buena Vista cites Zielinski's email to the Board of Zoning Appeals, as explained above, that email is not in the record, and we therefore cannot consider it.\\n\\u00b6 30 Ultimately, we agree with the circuit court's assessment of the circumstances presented by this case:\\nSeveral residents affiliated with a local grocery store made modest contributions to a local politician over several years. They testified in front of him at a heated hearing in which they opposed a liquor license, and the application was denied. That description may insinuate favoritism, but it does not suggest that a decision ha[d] already been made, nor does it overcome the presumption of honest adjudicators.\\nUnder these circumstances, we agree with the court that Buena Vista failed to make a prima facie showing of either actual bias by Zielinski or an impermissible risk of bias. We therefore conclude the court properly denied Buena Vista's motion to expand the scope of review.\\nIII. Certiorari review of the Common Council's decision\\n\\u00b6 31 Buena Vista also argues the circuit court erred by upholding the Common Council's decision to deny its liquor license application on certiorari review. \\\"The scope of our review on certiorari is identical to the circuit court, and we therefore conduct our review of the [municipality's] decision independent of the circuit court's conclusions.\\\" Steenberg v. Town of Oakfield , 167 Wis. 2d 566, 571, 482 N.W.2d 326 (1992). We accord a presumption of correctness and validity to the municipality's decision, and our review is limited to determining: (1) whether the municipality kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the municipality might reasonably make the order or determination in question. Nowell , 351 Wis. 2d 1, \\u00b6 24. Here, Buena Vista's arguments focus on the second, third, and fourth prongs of certiorari review.\\n\\u00b6 32 First, Buena Vista correctly observes that, in order to act according to law, a decision maker must comport with the common law concepts of due process and fair play. Marris , 176 Wis. 2d at 24. Those concepts include the right to an impartial decision maker. Id. Buena Vista therefore argues that, because Zielinski was biased, the Licenses Committee did not act according to law when it recommended denial of Buena Vista's liquor license application. However, we have already determined that Buena Vista has failed to establish even a prima facie showing of bias on Zielinski's part. We therefore reject its argument that the Licenses Committee did not act according to law.\\n\\u00b6 33 Buena Vista next argues that the Licenses Committee's decision was arbitrary, oppressive, and unreasonable. Buena Vista initially asserts, once again, that Zielinski was biased. We reject that argument for the reasons explained above.\\n\\u00b6 34 Buena Vista also argues the Licenses Committee's decision was arbitrary because, in essence, the evidence that supported granting Buena Vista's application outweighed the evidence in support of denying it. While framed as an argument regarding the arbitrariness of the Licenses Committee's decision, this argument actually appears to fall under the fourth prong of certiorari review-whether the evidence was such that the municipality might reasonably make the order or determination in question. Nowell , 351 Wis. 2d 1, \\u00b6 24.\\n\\u00b6 35 We apply the substantial evidence test to determine whether the evidence is sufficient to support the Licenses Committee's decision. See Clark v. Waupaca Cty. Bd. of Adjustment , 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994). Under that test, we must uphold the Licenses Committee's decision if it is supported by substantial evidence, even if there is also substantial evidence to support the opposite decision. See Sills , 254 Wis. 2d 538, \\u00b6 11. \\\"Substantial evidence is evidence of such convincing power that reasonable persons could reach the same decision as the [Licenses Committee].\\\" Clark , 186 Wis. 2d at 304. It is less than a preponderance of the evidence, but more than a \\\"mere scintilla\\\" of evidence. Oneida Seven Generations Corp. v. City of Green Bay , 2015 WI 50, \\u00b6 44, 362 Wis. 2d 290, 865 N.W.2d 162. When applying the substantial evidence test, we \\\"do[ ] not pass on questions of credibility, nor [do we] weigh the evidence. The test is whether the evidence reasonably supports the decision.\\\" Williams v. Housing Auth. of Milwaukee , 2010 WI App 14, \\u00b610, 323 Wis. 2d 179, 779 N.W.2d 185 (2009).\\n\\u00b6 36 In this case, the record amply supports the Licenses Committee's decision to recommend denial of Buena Vista's liquor license application. When considering a liquor license application, the Licenses Committee has discretion to consider a number of factors, including \\\"factors which reasonably relate to the public health, safety and welfare.\\\" MILWAUKEE , WIS., CODE \\u00a7 90-5-9-c-1-e (Dec. 13, 2016). At the hearing in this case, three witnesses testified that when the Property was previously operated as a tavern and assembly hall, there were frequent problems regarding parking, littering, property damage, and disruptive behavior by the tavern's patrons. That testimony was related to public safety and welfare and provided a sufficient basis for the Licenses Committee to recommend denial of Buena Vista's application.\\n\\u00b6 37 Buena Vista emphasizes that the only witnesses to testify against its application were Montemayor-who conceded he had previously tried to buy the Property-and two of his employees. Buena Vista apparently intends to argue that, under these circumstances, the Licenses Committee should not have credited the testimony of Montemayor and his employees. However, as noted above, the Licenses Committee is charged with determining the credibility of the witnesses before it, see Ortega , 221 Wis. 2d at 391, and this court \\\"does not pass on questions of credibility,\\\" Williams , 323 Wis. 2d 179, \\u00b6 10. We therefore decline Buena Vista's invitation to overturn the Licenses Committee's implicit finding that Montemayor and his employees were credible witnesses, despite the issues Buena Vista has raised regarding them.\\n\\u00b6 38 Buena Vista also asserts the record shows that it addressed the concerns Montemayor and his employees raised regarding parking and security by renting parking spaces from a nearby business and hiring a private security firm. This argument fails because, as noted above, the Licenses Committee is responsible for weighing the evidence before it. See Ortega , 221 Wis. 2d at 391. As such, the Licenses Committee was not required to accept Buena Vista's contention that the measures it had taken would adequately address the parking and security issues testified to by Montemayor and his employees. Considering the totality of the evidence in the record, see Oneida Seven Generations , 362 Wis. 2d 290, \\u00b6 45, a reasonable person could reach the same decision as the Licenses Committee, see Clark , 186 Wis. 2d at 304.\\nBy the Court. -Order affirmed.\\nThis opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.\\nGenerally speaking, a Class B liquor license \\\"authorizes the retail sale of intoxicating liquor for consumption on the premises where sold by the glass and not in the original package or container.\\\" Wis. Stat. \\u00a7 125.51(3)(a) (2015-16). All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.\\nCounsel stated he would submit copies of the campaign finance reports \\\"into the record.\\\" The appellate record, however, does not contain any such documents.\\nThe Common Council also denied Buena Vista's application for a public entertainment premises license. However, Buena Vista did not seek judicial review of that denial, nor does it raise any argument regarding the public entertainment premises license on appeal. We therefore do not further address the Common Council's decision to deny Buena Vista's application for a public entertainment premises license.\\nBuena Vista repeatedly asserts that the circuit court \\\"abused\\\" its discretion. Our supreme court changed the terminology used when reviewing circuit courts' discretionary decisions from \\\"abuse of discretion\\\" to \\\"erroneous exercise of discretion\\\" in 1992. See State v. Plymesser , 172 Wis. 2d 583, 585 n.1, 493 N.W.2d 367 (1992).\\nBuena Vista argues the circuit court \\\"abuse[d]\\\" its discretion by refusing to expand the scope of review. The Licenses Committee and the City of Milwaukee do not discuss the applicable standard of review for this issue. In Sills v. Walworth County Land Management Committee , 2002 WI App 111, 254 Wis. 2d 538, 648 N.W.2d 878, we did not expressly address the standard of review that applies to a circuit court's decision to expand the scope of review, but we ultimately determined \\\"as a matter of law\\\" that the appellants had failed to make a prima facie showing of bias. Here, regardless of the standard of review governing the circuit court's decision not to expand the scope of review, we conclude Buena Vista failed to make a prima facie showing of bias. The circuit court therefore properly denied Buena Vista's request to expand the scope of review.\\nThe campaign finance reports that Buena Vista's attorney referenced during the Licenses Committee hearing are not in the record. Nonetheless, Montemayor testified regarding the $200 and $250 contributions, and the $1388 figure does not appear to be disputed on appeal.\\nBuena Vista contends the record does, in fact, contain Zielinski's email. However, the only record citation Buena Vista provides in support of that assertion is to its attorney's closing argument before the Licenses Committee. Attorneys' arguments are not evidence. Horak v. Building Servs. Indus. Sales Co. , 2012 WI App 54, \\u00b6 3 n.2, 341 Wis. 2d 403, 815 N.W.2d 400.\\nIn addition to the factors discussed above, Buena Vista also insinuates in its statement of facts that Zielinski's bias against it was racially motivated. However, Buena Vista provides no evidence or any developed legal argument to support a claim of racial bias. We agree with the Licenses Committee and the City of Milwaukee that \\\"simply making incendiary allegations of racial bias without evidence should not be enough to warrant overturning a municipal decision.\\\"\\nBuena Vista's arguments on appeal pertain to the Licenses Committee's decision to recommend denial of its liquor license application. However, it is the Common Council's decision, not the underlying decision of the Licenses Committee, from which Buena Vista could petition for judicial review. See Wis. Stat. \\u00a7 125.15(2)(d) (permitting circuit court review of \\\"[t]he action of any municipal governing body in . failing to grant . any license for good cause\\\"). Nevertheless, this distinction is ultimately immaterial for purposes of this appeal, as the Common Council's unanimous decision to deny Buena Vista's application was based on the Licenses Committee's recommendation, and Buena Vista develops no separate argument regarding error within the Common Council's proceedings.\"}"

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+"{\"id\": \"12562260\", \"name\": \"In re the Marriage of: William James HOLM, Petitioner-Appellant, v. Dawn Marie HOLM, Respondent-Respondent.\", \"name_abbreviation\": \"Holm v. Holm\", \"decision_date\": \"2019-02-20\", \"docket_number\": \"Appeal No. 2017AP1838\", \"first_page\": \"153\", \"last_page\": \"153\", \"citations\": \"927 N.W.2d 153\", \"volume\": \"927\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Wisconsin\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-27T21:03:36.873018+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In re the Marriage of: William James HOLM, Petitioner-Appellant,\\nv.\\nDawn Marie HOLM, Respondent-Respondent.\", \"head_matter\": \"In re the Marriage of: William James HOLM, Petitioner-Appellant,\\nv.\\nDawn Marie HOLM, Respondent-Respondent.\\nAppeal No. 2017AP1838\\nCourt of Appeals of Wisconsin.\\nDATED AND FILED February 20, 2019\", \"word_count\": \"3764\", \"char_count\": \"23092\", \"text\": \"PER CURIAM.\\n\\u00b61 William Holm challenges the division of property and maintenance award following his divorce from Dawn Holm. William argues that although the circuit court claimed in the judgment to be dividing the property equally, in fact it divided the property unequally. Regarding the maintenance award, William contends the court intended to provide him the vast majority of the income and divide it 75/25 in William's favor, but it did not order that result. According to William, only a denial of maintenance would have resulted in the income actually being divided 75/25 as the court intended. We affirm the property division and maintenance award but remand with instructions to correct an ambiguity in the judgment so that it conforms to the court's oral ruling.\\nBACKGROUND\\n\\u00b62 William and Dawn were married on December 5, 2004, and divorced effective August 22, 2016. The parties had three minor children, and the circuit court awarded joint legal custody with physical placement allocated as set forth in a partial marital settlement agreement that was incorporated by reference in the divorce judgment. William was fifty years old at the time of the divorce and employed as an anesthesiologist earning $695,375 annually. Dawn was forty-six years old and a homemaker during the marriage. Prior to the marriage, Dawn worked as a licensed practical nurse. The court found her earning capacity to be $45,000 annually.\\n\\u00b63 The circuit court conducted a trial on the issues of property division, maintenance, and child support. In its oral ruling, the court initially stated, \\\"Folks, you make a lot of money here. There is a lot of living outside your means, too.\\\" The court further noted there was \\\"a lot of debt to have to divide up. Thankfully, there is income coming in that can address that debt.\\\" The court also took William's failure to pay substantial debts during the pendency of the divorce proceedings into consideration in making the property division. However, the court stated the issues before it were interrelated. The court stated that it was \\\"trying to work this out equitably in other ways and you'll see by the end of this order that I have considered each of these different payments and considered them in fashioning not just the property division but also the issue of maintenance and the issue of child support altogether.\\\" The court then stated with regard to the property division:\\nThe way I'm dividing the property up is that a lion's share of the debt goes to [William]. I think that the way this has been divided up in many ways equalizes out the amount of debt versus the amount of income that he has to the point where I think it does, in fact, equalize out the property division.\\n.\\nThe Court is satisfied that the property division, though it might be not 100 percent equalized, it is a very close equalization between the parties .\\n\\u00b64 The circuit court further stated it was \\\"not going to order . an equalization payment, and the numbers that I've run are as close to an equalization as I wish to do given the additional orders that I'm going to make.\\\" The court then proceeded to award maintenance to Dawn from William in the amount of $12,000 monthly for four years' duration. The court stated, \\\"I think that's an appropriate length of time given the length of the marriage . and less time than was requested.\\\" The court reasoned, \\\"I can't see a reason why [Dawn] can't become more self-supportive after four years.\\\"\\n\\u00b65 The circuit court then also stated it \\\"deviated south\\\" from the statutory child support amount. The court reasoned:\\nThis Court, however, feels that given the property division and the support of the maintenance that's been ordered, that I will under [ WIS. STAT. \\u00a7] 767.511(1n) [ (2017-18) ] with a slight deviation downward, that the percentage given the other payment and given the property division, I find that the percentage should be an order. I'm going to order $6,000.00 a month in child support. . [S]o I'm doing that deviation from the standard downwards .\\nWritten \\\"Findings of Facts, Conclusions of Law, and Judgment of Divorce\\\" were subsequently entered. William now appeals the property division and maintenance award.\\nDISCUSSION\\n\\u00b66 The division of property and the awarding of maintenance rest within the sound discretion of the circuit court. LeMere v. LeMere , 2003 WI 67, \\u00b613, 262 Wis. 2d 426, 663 N.W.2d 789. We will sustain a discretionary decision if the circuit court examined the relevant facts, applied a proper standard of law, and reached a conclusion that a reasonable judge could reach using a demonstrated rational process. Liddle v. Liddle , 140 Wis. 2d 132, 136, 410 N.W.2d 196 (Ct. App. 1987). Findings of fact will be affirmed unless clearly erroneous. WIS. STAT. \\u00a7 805.17(2). We search the record for reasons to sustain the court's discretionary decisions. Steiner v. Steiner , 2004 WI App 169, \\u00b618, 276 Wis. 2d 290, 687 N.W.2d 740.\\nI. Property division\\n\\u00b67 William argues the circuit court erroneously exercised its discretion by concluding an equal property division was appropriate but, in fact, awarding an unequal property division in Dawn's favor. According to William, the court \\\"awarded net property division to William worth [a] negative $112,233.62; [and] to Dawn, [a] positive $135,412.42.\\\" Thus, William contends that Dawn \\\"received $123.823.02 more than she would have under an equal property division and nearly $250,000.00 more than William received.\\\"\\n\\u00b68 We acknowledge the circuit court's written judgment of divorce specifically refers to \\\"The Court's equal division of property.\\\" When viewed in isolation, the court's itemization of debts and assets in the property division it approved appears to award a negative property balance for William and a positive balance for Dawn. However, the court's oral ruling was attached to the written judgment, and the transcript of the oral ruling sets forth other findings of the court incorporated into the written judgment that support the court's property division.\\n\\u00b69 Our review of the oral ruling transcript confirms that the circuit court did not consider property division in isolation The court stated that it considered its property division accounting to be \\\"as close to an equalization as I wish to do given the additional orders that I'm going to make.\\\" The court then considered the amount and duration of the maintenance payments, the child support payments, and other factors the court determined to be relevant to this case, including William's failure to make payments on debt during the divorce proceedings.\\n\\u00b610 Pursuant to a temporary order, William had been required to pay Dawn $8,608 monthly in child support. William was also ordered to pay the mortgage securing the marital residence. The court commissioner amended the temporary order following a supplemental temporary hearing, and William was required to pay monthly child support of $10,045, retroactively. In determining this payment, the commissioner specifically took into consideration that, during the pendency of the divorce, William would be paying $9,777 monthly toward the mortgage payment, $2,275 monthly toward a boat loan, and $972 monthly toward his retirement/investment account, among other items.\\n\\u00b611 William then sought a de novo hearing. At that hearing, Dawn argued the circuit court should reassess the monthly support obligation because William was not making the mortgage payments. The court addressed the issue and stated \\\"that will have to be worked out in the divorce itself.\\\" At a subsequent motion hearing, the court reiterated its de novo ruling:\\nI thought I made it clear there was going to be an ongoing responsibility to pay these sort of things. I thought I made that quite clear when I took into account the temporary order. I didn't relieve anybody of a responsibility to pay certain things just because I did a temporary order at that given time. It wasn't a one shot deal. It required people to make certain payments and those payments I assume were going to be paid and in the end we were going to hash out at a final hearing what was the equity between the parties as to what had not been paid up to that point. That was the intent of the Court.\\n\\u00b612 During arguments on property division at the final divorce hearing, Dawn argued that the circuit court should take into consideration the required payments William failed to make during the divorce action, including unpaid mortgage payments and boat payments. The ordered payments, if made, would have reduced debt on the boat and mortgage. In attempting to equalize the property division, the court made it clear in its oral ruling that it was taking into consideration the fact that William failed to make mortgage payments and boat payments, which over the course of the divorce proceedings amounted to $287,583. The court expressed difficulty in assessing increases in equity had the payments been made, but the record reflects the court attempted to equalize the property division as best it could in an equitable manner. Regarding unpaid mortgage payments, boat payments and life insurance payments, the court stated:\\nThe concern I have is that for these payments not made, there's not really a dollar-for-dollar type of way to assess any increase in equity. You know, had there been these payments made, there might have been more equity at some point to be able to split. I don't believe there has been enough evidence proving what that amount would be. I mean, there could be some equity, some not, but it's not dollar for dollar. You know, I have great concerns if he had paid, for example, the more payments on it, that is money that would have gone possibly towards more support during that time, but I'm working that out in other ways. There is consideration being given in other ways .\\n.\\nI'm trying to work this out equitably in other ways and you'll see by the end of this order that I have considered each of these different payments and considered them in fashioning not just the property division but also the issue of maintenance and the issue of child support altogether. These are not separate islands here. These are all interrelated .\\n\\u00b613 When the oral ruling was reduced to the written Findings of Fact, Conclusions of Law, and Judgment of Divorce, no mention was made of the consideration the circuit court gave to William's unpaid, court-ordered obligations. Yet, it is clear the court did not intend to relieve William of the obligation for the debt payments, half of which would be approximately $143,500. The court partially articulated its reasoning in its oral decision when it awarded $100,000 of William's 401k to Dawn, given the court's consideration of William's failure to pay debt on the house and boat:\\nI am considering the contribution to a retirement in the amount of $100,000.00 to [Dawn] as part of that consideration for some of the lost payments, some of the lost equity. I think it's important that [Dawn] have some type of retirement when this is all over with. So that is part of the consideration that I feel is equitably appropriate in dividing up the assets themselves.\\n\\u00b614 Significantly, had the circuit court not \\\"hash[ed] out at a final hearing what was the equity between the parties as to what had not been paid up to that point,\\\" William's failure to follow the temporary orders would have been unfair and prejudicial to Dawn. Had the court not reserved consideration of William's failure to make the court-ordered payments until it considered the property division at the time of the final divorce hearing, Dawn may have been entitled to increased temporary maintenance, or a large lump sum representing temporary maintenance that should have been paid during the pendency of the divorce.\\n\\u00b615 William also argues the circuit court's oral ruling was devoid of any analysis of the statutory property division factors under WIS. STAT. \\u00a7 767.61(3). However, William does not point to any statutory factor the court failed to consider or properly analyze in arriving at its conclusion. Indeed, the court specifically referenced all the statutory factors, and our review of the record reflects the court's consideration of appropriate statutory factors, exemplifying the flexibility a court has in crafting a fair and equitable remedy. See Lacey v. Lacey , 45 Wis. 2d 378, 382, 173 N.W.2d 142 (1970). Perhaps most importantly, the court stated: \\\"I've made a division of property that takes into account the relative incomes of each of the parties as well as the assets and debts that need to be paid, the educational level of each party and the earning capacity of [William], his earning capacity is pretty clear.\\\" We conclude the court properly exercised its discretion in determining the property division by following a reasoned mental process and applying the applicable law to the facts of this case.\\nII. Spousal maintenance\\n\\u00b616 William claims the circuit court merely performed a \\\"partial maintenance analysis\\\" and \\\"left unanswered the touchstone question for maintenance determinations: Why is $12,000.00 per month a proper maintenance award .?\\\" He also contends that \\\"Dawn's childcare obligations under an equal placement schedule do not justify her refusal to prepare to work.\\\" William asserts what is ultimately dispositive is \\\"the complete lack of incentive for Dawn to diligently pursue income because of the excessive maintenance award.\\\" He argues the court \\\"said it was providing William the vast majority of the income and dividing it 75/25 in William's favor, but it did not.\\\" According to William, \\\"only a denial of maintenance would have resulted in the income actually being divided 75/25, as the circuit court stated was its intent.\\\"\\n\\u00b617 We disagree with William's contention that the circuit court merely paid lip service to the statutory maintenance factors. The court appropriately balanced various factors in its maintenance award. These factors are designed to further the distinct but related objectives to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective), and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective). See LaRocque v. LaRocque , 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987). Here, the court specifically mentioned the length of the marriage. See WIS. STAT. \\u00a7 767.56(1c)(a). The court also took into account the property division in making its maintenance determination, a proper analysis under WIS. STAT. \\u00a7 767.56(1c)(c) and 767.61(3)(i). The court placed significant emphasis on the feasibility of Dawn becoming self-supporting within four years, notwithstanding her length of absence from the job market, a proper statutory factor under \\u00a7 767.56(1c)(f). The duration of the award was also limited in order to give credence to the support and fairness objectives, which are clearly inferred in the oral ruling.\\n\\u00b618 The circuit court specifically discussed other proper statutory factors in its oral ruling. This case presented huge differences in income and earning capacity. Given the court's order, Dawn's standard of living after four years would be markedly decreased, regardless of the further education and employment she might pursue as a licensed practical nurse. See WIS. STAT. \\u00a7 767.56(1c)(e). Quite simply, Dawn could not pay down the debt and as a result, she was allocated very little debt in property division. While Dawn was provided a good standard of living for four years by the circuit court, thereafter she would have a much reduced standard of living and virtually no assets despite her earning capacity. After divorce, William will have a substantial earning capacity, standard of living, and the likelihood to recoup his assets thereafter. And there was no finding that William would have to invade his property division to pay maintenance; it was up to him to decide how to fund his obligations. The court appropriately determined the maintenance award was fair and equitable considering the property division and child support. The court appropriately balanced all the various factors of this case, and the court's decision was reasonable.\\n\\u00b619 There is also no merit to William's contention that the circuit court's order provided a \\\"complete lack of incentive for Dawn to diligently pursue income because of the excessive maintenance award.\\\" Although William argues the maintenance award discourages Dawn from finding work, the court-ordered four-year term was half of the requested eight-year duration. The court believed that after four years, Dawn could get on her feet. The court specifically imputed income to her of $45,000 annually, despite the fact that she had not worked outside the home for twelve years and needed additional education to reinstate her nursing license.\\n\\u00b620 William points to paragraph 18e in the written judgment, which stated as follows:\\ne. Consistent with the division of income resulting from the child support and maintenance awards ordered by the Court, namely, 75% to William Holm and 25% to Dawn Holm, William Holm shall be responsible for 75% of the minor children's health care insurance and uninsured health care expenses (health, dental, orthodontist, counseling, etc.) and Dawn Holm shall be responsible for 25% of the minor children's health care insurance and uninsured health care expenses (health, dental, orthodontist, counseling, etc.).\\nWilliam argues that \\\"the circuit court stated [in its oral ruling] it was dividing net income 75% to William and 25% to Dawn\\\" and it \\\"confirmed that division in the [written] Judgment.\\\" This argument is disingenuous.\\n\\u00b621 At no time in its oral ruling did the circuit court claim to be making a maintenance award using percentage of income. At the final divorce hearing, William asked the court to award $6,146 in child support and no maintenance. Based upon a purported income of $575,000 to William and an earning capacity of $46,392 to Dawn, William's proposed division of income was 70.53% to William and 29.47% to Dawn. Dawn asked the court to award a 50/50 income equalization split when addressing maintenance, and she asked the court to set William's income at $695,375, with an imputed income to her of $40,000. Based upon a 50/50 split, Dawn requested a child support award of $7,541 and monthly maintenance of $13,117.\\n\\u00b622 The circuit court was well aware of Dawn's 50/50 family support request when it ordered a deviation. The court agreed with Dawn on the income attributable to William of $695,375. However, it imputed income to her of $45,000. The court then ordered a downward deviation from her request for maintenance when it ordered $12,000 monthly for four years. As the court stated, \\\"That sort of follows a little less than what's part of Exhibit 36 and less time than was requested.\\\" The court also deviated downward for child support when it awarded $6,000 monthly. At no time did the court use percentages. In fact, that result would have been less than the percentage William was seeking and a lot less than Dawn was requesting.\\n\\u00b623 After the circuit court made its oral ruling on property division, maintenance, child support, and variable expenses, it asked, \\\"What else do I need to address?\\\" A subsequent discussion ensued regarding medical insurance premiums and uninsured health costs. For the first time, a 75/25 percentage was suggested, and it was only regarding the health insurance premiums and uninsured health care costs. The court did not claim to be making the 75/25 decision based upon any specific numbers of net income division.\\n\\u00b624 William's attorney then asked the circuit court, \\\"Is that consistent with the division of income that you ordered?\\\" The court responded, \\\"I think that is, yes.\\\" However, at no time did the court state it was \\\"dividing the net income 75% to William and 25% to Dawn,\\\" for maintenance purposes, as William now argues. Significantly, concerning the 75/25 division for health insurance premiums and uninsured health care costs, the court said: \\\"I would have liked to have thought through this a little more.\\\" In any event, there was no further discussion that the court was attempting to mirror its support and maintenance orders with what it did regarding health insurance premiums and uninsured costs with net income percentages.\\n\\u00b625 William's attorney then drafted the written Findings of Fact, Conclusions of Law, and Judgment of Divorce containing the superfluous qualifier in paragraph 18e concerning the 75/25 split \\\"[c]onsistent with the division of income resulting from the child support and maintenance awards ordered by the Court .\\\" William now argues this language results in a 75/25 split in net income, and that \\\"only a denial of maintenance would have resulted in the income actually being divided 75/25, as the circuit court stated was its intent.\\\" However, the written judgment clearly states three subparagraphs later, \\\"William Holm shall pay maintenance to Dawn Holm in the amount of $12,000 per month via income withholding, for a period of four years.\\\" This created an internal inconsistency in the written judgment. See Schultz v. Schultz , 194 Wis. 2d 799, 805-06, 535 N.W.2d 116 (Ct. App. 1995).\\n\\u00b626 We will consider the whole record in construing a divorce judgment where the judgment is ambiguous. Waters v. Waters , 2007 WI App 40, \\u00b68, 300 Wis. 2d 224, 730 N.W.2d 655. Here, the record confirms the circuit court's intent was straightforward: a maintenance award of $12,000 monthly and a monthly child support award of $6,000. The court also ordered the children's medical insurance premiums and uninsured expenses 75% to William and 25% to Dawn. Accordingly, although we affirm the maintenance award, the cause is remanded with directions to clarify the written judgment so that it conforms to the court's oral ruling with regard to the medical insurance and uninsured expense provision.\\nBy the Court. -Judgment affirmed and cause remanded with directions.\\nThis opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.\\nReferences to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.\\nWe note that William's brief to this court contains a fact section that freely mixes purported facts with argument. Much of the purported facts and argument pertains to an attempt to present Dawn to this court in an unfavorable manner. However, the circuit court made no findings of misconduct or credibility determinations regarding the parties' spending habits other than noting the parties lived beyond their means. Emotionally charged \\\"facts\\\" mixed with argument are not helpful to this court, and counsel is admonished that an appellant's brief shall contain only facts relevant to the issues presented for review, with appropriate references to the record. See Wis. Stat. Rule 809.19(1)(d).\"}"

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+"{\"id\": \"4019311\", \"name\": \"State of Wisconsin, Plaintiff-Respondent-Petitioner, v. David W. Domke, Defendant-Appellant\", \"name_abbreviation\": \"State v. Domke\", \"decision_date\": \"2011-11-01\", \"docket_number\": \"No. 2009AP2422-CR\", \"first_page\": \"268\", \"last_page\": \"301\", \"citations\": \"337 Wis. 2d 268\", \"volume\": \"337\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T01:02:54.901951+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Wisconsin, Plaintiff-Respondent-Petitioner, v. David W. Domke, Defendant-Appellant.\", \"head_matter\": \"State of Wisconsin, Plaintiff-Respondent-Petitioner, v. David W. Domke, Defendant-Appellant.\\nSupreme Court\\nNo. 2009AP2422-CR.\\nOral argument September 14, 2011.\\nDecided November 1, 2011.\\n2011 WI 95\\n(Also reported in 805 N.W.2d 364.)\\nFor the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.\\nFor the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.\\nAn amicus curiae brief was filed by Robert R. Henak, Rebecca R. Lawnicki and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.\", \"word_count\": \"7895\", \"char_count\": \"47994\", \"text\": \"N. PATRICK CROOKS, J.\\n\\u00b6 1. This is a review of an unpublished decision of the court of appeals reversing the circuit court's judgment of conviction and remanding for a new trial based on ineffective assistance of counsel. A jury convicted David W. Domke (Domke) of repeatedly sexually assaulting Alicia S., his stepdaughter, when she was ten years old, in violation of Wis. Stat. \\u00a7948.02(1) and \\u00a7 948.025(l)(a) (2003-04). Domke moved for postconviction relief and a new trial based on the ineffective assistance of his trial counsel, Terrence Woods (Woods). In order to prevail on the ineffective assistance claim, Domke needed to establish both that Woods' performance was deficient and that the deficient performance prejudiced Domke \\u2014 in other words, that counsel's errors undermine the court's confidence in the result. After a postconviction hearing, the circuit court denied the motion because it concluded that while Domke had shown that Woods performed deficiently, Domke had failed to show that the deficient performance had prejudiced him. The court of appeals, however, concluded that Domke had established cumulative prejudice from three instances of deficient performance. Thus, the court of appeals reversed the circuit court's denial of Domke's postconviction motion and remanded for a new trial.\\n\\u00b6 2. We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined.\\n\\u00b6 3. Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.\\nI. FACTUAL BACKGROUND\\n\\u00b6 4. The charges against Domke are based on four incidents between June 20, 2005, and December 25, 2005, on which Alicia S. alleged that Domke engaged in sexual contact with her. Specifically, Alicia S. alleged that on all four occasions Domke rubbed his penis on her buttocks and on one occasion Domke also licked her vagina. Alicia S. was ten years old at the time. Alicia S. did not disclose the full extent of the alleged assaults at first, but over time the details of the four incidents emerged.\\n\\u00b6 5. Approximately six months after the first alleged assault, Alicia S. told two friends, L.H. and J.M., that Domke had sexually assaulted her. J.M. told another friend, whose mother reported the allegations to Alicia S.'s elementary school. The guidance counselor at the school notified the police, and a police officer, Corey Rank (Rank), and a child protection investigator, Bonnie Anderson (Anderson), interviewed Alicia S. at the school on January 17, 2006. Alicia S. later went to a physician's assistant, Tracey BeFay (BeFay), on January 23, 2006, for a physical examination during which she repeated some of the allegations. In February 2006, Alicia S. began seeing an outpatient therapist, Kim Rusch (Rusch), to address some emotional and behavioral problems she was having that Alicia S. and her natural father, David S., attributed to the alleged abuse. It was through the approximately 20 to 25 therapy sessions with Rusch that Alicia S. provided the full account of the four alleged sexual assaults.\\nII. PROCEDURAL HISTORY\\n\\u00b6 6. On December 18, 2006, Domke was charged with the repeated sexual assault of a child in violation of Wis. Stat. \\u00a7 948.025(l)(a) (2003-04) based on four alleged incidents of sexual contact with Alicia S. in violation of Wis. Stat. \\u00a7 948.02(1). A two-day jury trial was held on January 17 and 18, 2008, in the Oconto County Circuit Court, the Honorable Michael T. Judge presiding.\\nA. The Trial\\n\\u00b6 7. Alicia S. testified first, providing a detailed account of the four alleged sexual assaults. Alicia S. testified: \\\"The first time we were at 344 South Adams Street of Oconto County [Oconto Falls] and we were watching 50 First Dates. And I had woken up to my pants and underpants pulled down and that Dave was rubbing his penis up and down my \\u2014 near my anal area.\\\"\\n\\u00b6 8. Regarding the second incident, Alicia S. testified: \\\"I believe we were at 202 Wisconsin Street of Oconto County [Oconto Falls]. And we were downstairs watching TY and I had woken up to him licking my vagina this time. And he had flipped me over and he was rubbing his penis up and down near my anal area.\\\"\\n\\u00b6 9. Regarding the third incident, Alicia S. testified:\\nThe third time was also at 202 Wisconsin Street. This time I had went into my mom's bedroom. I crawled in at approximately 6:30 a.m. so I could spend time with her before she went to work. And eventually she got up and went to work. And I had woken up to Dave putting his penis near my anal area, and this time I had felt wetness. And I pretended I was sleeping, and then he eventually got up and went \\u2014 took a shower and went hunting.\\n\\u00b6 10. Alicia S. indicated that the fourth incident took place in December of 2005 while she was watching television in her bedroom. Alicia S. testified:\\nI was watching [Country Music Television], and this time he had came into my bedroom and he was naked and he was rubbing his penis up and down my anal area. And this time he told me if I took off my clothes it would feel better and I said no. I told him to get out and I locked my door, and I was really, really scared.\\n\\u00b6 11. Alicia S. also testified that she first reported the sexual assaults to her friends L.H. and J.M. at a sleepover. Alicia S. explained that she told her friends about the assaults because \\\"it was really bothering\\\" her, but that she did not want them to tell anyone and made them \\\"pinky swear.\\\" L.H. confirmed this and testified that Alicia S. told her \\\"that her stepdad had licked her in the privates.\\\" L.H. further testified that when Alicia S. told her this, she \\\"acted very upset and she looked like she was going to actually throw up.\\\"\\n\\u00b6 12. Regarding her interview with Anderson and Rank, Alicia S. explained that she did not want to disclose the assaults to them. Alicia S. testified that she was scared and, at that time, did not want Domke to go to jail, so she was not completely honest with Anderson and Rank. Alicia S. stated that, when pressed, she did disclose some of the alleged abuse to them. When Anderson testified, she agreed with Alicia S.'s description of the interview and stated that it was clear that Alicia S. liked Domke very much. Anderson explained that in response to some of her and Rank's questions Alicia S. confirmed that Domke sexually assaulted her:\\n[Alicia S.] told us without very specific details that on two different occasions at her mother's house \\u2014 at actually two different houses in Oconto Falls when she was visiting her mother that her stepfather, David Domke, did put his penis between her buttocks on two different occasions while she was pretending to be sleeping when they were all watching TV together in the living room.\\n\\u00b6 13. Alicia S. also testified that she was later examined by a physician's assistant, BeFay, to whom she revealed some details of the alleged assaults. BeFay testified that Alicia S. was reluctant to talk with her about the alleged assaults, but that Alicia S. indicated that Domke put his penis on her buttocks and his mouth on her genitals. BeFay testified that the physical examination was normal. During Woods' cross-examination of BeFay, he moved to enter into evidence BeFay's dictated report, which reflected the normal physical examination and also included a summary of what Alicia S. told BeFay about the alleged assaults.\\n\\u00b6 14. Alicia S. further testified that she began to see a therapist, Rusch, and that, after about 10 to 15 sessions, she told Rusch all of the details regarding the four alleged sexual assaults. Rusch testified regarding the services she provided to Alicia S.:\\nShe \\u2014 the problem focus that was on my intake form when she came to me was that she had been sexually assaulted and that she was having some problems with nightmares, intrusive thoughts, flashbacks. She had a lot of fears. She was scared, things like that. So I was asked to deal with those symptoms that come along with that.\\nRusch also testified about the progression of her sessions with Alicia S.:\\nThe first few sessions we basically talked about how she could maybe not be having as many nightmares. We implemented a safety plan because she was very afraid to be outside. She would come home from school and she would be worried somebody was in the house, things like that.\\nSo we developed a safety plan for her to feel safer in her town here and also at her home and when she had to go to school. So that's what we focused on just to make her more comfortable and have her to be able to, you know, be .functioning relatively normally in the community and in her family.\\nAnd then it was down the road a ways, not until June. I started seeing her in February. And then in June when I finally \\u2014 Alicia [S.] and I had talked and she was ready to tell me her whole story. She had told, you know, bits and pieces throughout, but that was when she told me her whole story.\\nIn a report that the State introduced into evidence, Rusch documented \\\"Alicia [S.]'s whole story\\\" regarding the four alleged sexual assaults.\\n\\u00b6 15. On cross examination, Woods asked Rusch several questions about the first alleged incident. This included the following exchange:\\nWoods: Could this have just been like a bad dream or something?\\n[The State objected, and the circuit court overruled the objection.]\\nRusch: No. I do not believe it could have been a dream.\\nWoods: All right. You don't think it was a dream?\\nRusch: No. In my professional opinion, it was not a dream.\\n\\u00b6 16. As his first witness, Woods called Tina Domke, who is Alicia S.'s mother and Domke's wife. Woods asked Tina Domke whether she had told Anderson, the child protection investigator, that she did not believe Alicia S.'s allegations against Domke. Tina Domke responded that, yes, she had told Anderson that she did not believe Alicia S. \\\"[a]t that time.\\\" On cross-examination, the State elicited that Tina Domke now believes her daughter's allegations against her husband \\\"100 percent.\\\" In response to further questioning, Tina Domke stated that Alicia S. was the bravest girl she knew and that she no longer had any doubt that Alicia S. was telling the truth.\\n\\u00b6 17. Woods then called Domke's ex-wife, Tina Baxter, and Domke's three children to testify. From each of these witnesses Woods elicited testimony that Domke had never been accused of sexually abusing any of his biological children. Two of Domke's children also testified that they had never seen Domke sexually abusing Alicia S. while they all lived together. On cross-examination, one of the children admitted that Alicia S. told her about the alleged sexual assaults before those allegations were reported to police, and that she reported Alicia S.'s statements to her when interviewed by Anderson and Rank.\\n\\u00b6 18. Domke testified and denied ever sexually assaulting Alicia S. Domke stated that he knew Alicia S. lied a lot and that he and Alicia S. argued a lot about her refusal to abide by his rules. On cross-examination, the State elicited from Domke that when he originally spoke to Anderson and Rank he told them that he and Alicia S. had a good relationship.\\n\\u00b6 19. The jury convicted Domke of all charges, and he was sentenced to 20 years in prison and 20 years of extended supervision.\\nB. Domke's Postconviction Motion for a New Trial\\n\\u00b6 20. Domke filed a postconviction motion for a new trial on March 19, 2009, based on ineffective assistance of trial counsel. Domke asserted that Woods performed deficiently in several respects, and that the deficient performance prejudiced him because Woods' errors had erroneously bolstered Alicia S.'s credibility. Domke requested a Machner hearing on these issues.\\n\\u00b6 21. First, Domke asserted that Woods erred when he failed to object to Rusch's hearsay testimony regarding the reason that Alicia S. sought counseling services. Domke argued that these statements were not covered by the hearsay exception for statements made for purposes of medical diagnosis or treatment, Wis. Stat. \\u00a7 908.03(4) (2007-08), because statements made to a counselor and social worker, like Rusch, are excluded from that exception. See State v. Huntington, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998) (declining \\\"to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. \\u00a7 908.03(4), to statements made to counselors or social workers\\\"). Domke asserted that these statements are not admissible as records of regularly conducted activity either, see Wis. Stat. \\u00a7 908.03(6). Second, Domke argued that Woods erred by asking Rusch whether she thought that Alicia S.'s allegations of the first incident may have been the result of a bad dream, which allowed Rusch to state that in her professional opinion, it was not just a bad dream. Third, Domke asserted that Woods erred when he failed to object to the hearsay testimony of L.H., Alicia S.'s friend, which was not covered by the excited utterance or records of regularly conducted activity exceptions, see Wis. Stat. \\u00a7 908.03(2), (6); Domke said that while Woods may have hoped to establish inconsistencies between L.H.'s and Alicia S.'s testimony, he did not actually do so on cross-examination. Fourth, Domke argued that Woods erred by moving BeFay's report into evidence because he did not have a valid strategic reason for doing so. Fifth, Domke asserted that Woods' most serious error was his decision to call Tina Domke without investigating whether she still doubted the truth of Alicia S.'s allegations.\\n\\u00b6 22. Domke asserted that these deficiencies prejudiced him because this case was ultimately a credibility contest between Alicia S. and Domke. Domke argued that Woods' mishandling of the testimony of Rusch and L.H., his decision to introduce BeFay's report, and his decision to call Tina Domke as a witness led to the introduction of additional evidence corroborating Alicia S.'s allegations and generally bolstering her credibility.\\n\\u00b6 23. In the alternative, Domke also sought a new trial in the interest of justice.\\n\\u00b6 24. The circuit court held a Machner hearing on June 12, 2009, at which Woods testified. In response to Domke's first allegation, Woods first stated that he thought some of Rusch's testimony \\\"could have been objectionable\\\" but that he did not want to draw attention to the testimony by objecting. He then stated that this information was admissible because it was recorded in a regularly kept record or because the hearsay exception for statements made for the purposes of medical diagnosis or treatment may apply.\\n\\u00b6 25. Regarding Domke's second allegation, concerning Woods' decision to ask Rusch the dream question twice, Woods explained:\\nIt seemed to me that, you know, maybe the child was having problems. As I understood Alicia, she was a special-ed student. She was on some medication and maybe was just having, you know, nightmares. And I'm not \\u2014 you know, I'm not an expert in that, but I did want to follow up and that was why.\\nWoods admitted that he did not know what Rusch would say in response to these questions.\\n\\u00b6 26. Woods explained in regard to the third alleged deficiency that he did not object to L.H.'s testimony because he also wanted to allow her testimony so that he could bring out inconsistencies in Alicia S.'s testimony. Woods also suggested that the excited utterance or regularly kept records hearsay exceptions might have applied, see Wis. Stat. \\u00a7 908.03(2), (6).\\n\\u00b6 27. In regard to the fourth allegation, Woods responded that he introduced BeFay's report to show that Alicia S.'s physical examination was normal and also to establish the lapse in time between the alleged sexual assaults and the physical examination.\\n\\u00b6 28. In response to the fifth allegation, concerning calling Tina Domke to testify without checking her present position, Woods explained that he wanted \\\"to elicit from [Tina Domke] that at the inception of this matter she had indeed not believed her own child.\\\" Woods explained, \\\"It was initially at least her view, as expressed to the social services people and the police, that indeed this was not a truthful child that we are talking to now.\\\" Woods noted that the police report indicated that \\\"Tina [Domke] said Alicia lies a lot.\\\" Woods also stated that by the time of trial he had been \\\"informed that indeed [Tina Domke] had been vacillating\\\" in regard to whether she still believed Alicia S. was lying. He admitted that he had not talked with Tina Domke before trial nor did he recall when he last spoke with her. Woods stated that he relied on the police reports and what Domke told him.\\n\\u00b6 29. The circuit court denied Domke's postconviction motion, concluding that while Domke had shown that Woods performed deficiently in certain respects, he had failed to establish that the deficiencies prejudiced him. The circuit court concluded that Woods' failure to object to the testimony of Rusch and L.H., and Woods' decision to call Tina Domke constituted deficient performance. In its decision, the circuit court noted that it would have sustained an objection to Rusch's testimony based on Huntington, 216 Wis. 2d 671. The circuit court concluded that Woods made reasonable strategic decisions to ask Rusch the dream questions and to introduce BeFay's report into evidence. The circuit court denied Domke's motion because it concluded that, given the totality of the circumstances, including Alicia S.'s \\\"very compelling\\\" testimony, Domke was not prejudiced by Woods' errors.\\nC. The Court of Appeals Decision\\n\\u00b6 30. The court of appeals reversed the circuit court's denial of Domke's postconviction motion based on ineffective assistance of trial counsel. State v. Domke, No. 2009AP2422-CR, unpublished slip op. (Wis. Ct. App. Sept. 21, 2010). The court of appeals concluded that Woods performed deficiently by failing to object to Rusch's testimony, by asking Rusch the dream question twice, and by calling Tina Domke as a witness without checking, prior to trial, what her present position was on her daughter's truthfulness. Id., \\u00b6 3-7. In a footnote, the court of appeals concluded that Woods' decisions regarding L.H.'s testimony and BeFay's report did not constitute deficient performance. Id.,\\\\ 1 n.l. The court of appeals concluded that it was reasonable for Woods not to object to L.H.'s testimony because it was likely admissible under the residual hearsay exception. Id. The court of appeals also concluded that Woods' decision to introduce BeFay's report into evidence was not deficient performance because in closing arguments he used the report to give an example of a prior inconsistent statement by Alicia S. Id.\\n\\u00b6 31. The court of appeals first concluded that Woods performed deficiently by failing to object to Rusch's hearsay testimony without having a strategic basis for that decision or knowing the relevant law. Id., \\u00b6 3. A reasonable attorney would have been aware of Huntington's limitation on the medical diagnosis and hearsay exception and objected on that basis. Domke, No. 2009AP2422-CR, \\u00b6 3. Additionally, Woods' decision to ask Rusch the dream question twice constituted deficient performance because there was such a low probability that she would concede that it could have been a dream. Id., \\u00b6 5-6. Finally, Woods erred by calling Tina Domke as a witness without knowing whether she still believed Domke or now supported Alicia S. M, \\u00b6 7. The court of appeals concluded that because the credibility of Alicia S. and Domke was central to the case, the collective prejudice from the testimony of Tina Domke and Rusch required a new trial. Id., \\u00b6 8.\\n\\u00b6 32. The State petitioned this court for review of whether Woods performed deficiently by failing to object to Rusch's hearsay testimony and asking Rusch the dream question twice, and if so, whether the collective prejudice of these errors and Woods' decision to call Tina Domke prejudiced the defendant.\\nIII. ANALYSIS\\n\\u00b6 33. Whether a defendant received ineffective assistance of counsel presents a mixed question of law and fact. State v. Thiel, 2003 WI 111, \\u00b6 21, 264 Wis. 2d 571, 665 N.W.2d 305. This court will uphold the circuit court's findings of fact, \\\"including] 'the circumstances of the case and the counsel's conduct and strategy,'\\\" unless they are clearly erroneous. Id. (quoting State v. Knight, 168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992)). Whether counsel's performance constitutes constitutionally ineffective assistance of counsel, which requires a showing by the defendant that counsel performed deficiently and that the error or errors prejudiced the defendant, presents a question of law that this court decides de novo. Id.; Strickland, 466 U.S. at 687 (setting forth the two components of an ineffective assistance of counsel claim: \\\"First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.\\\").\\n\\u00b6 34. Wisconsin criminal defendants are guaranteed the right to the effective assistance of counsel through the Sixth and Fourteenth Amendments to the federal constitution and Article I, Section 7 of the Wisconsin Constitution. State v. Trawitzki, 2001 WI 77, \\u00b6 39, 244 Wis. 2d 523, 628 N.W.2d 801; Thiel, 264 Wis. 2d 571, \\u00b6 18. We measure whether counsel's representation fell below the constitutional minimum for the effective assistance of counsel against the standard set forth by the United States Supreme Court in Strickland. Trawitzki, 244 Wis. 2d 523, \\u00b6 39. Counsel will be said to have provided constitutionally inadequate representation if the defendant can show that counsel performed deficiently and that such deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. \\\"The benchmark forjudging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\\\" Trawitzki, 244 Wis. 2d 523, \\u00b6 39 (quoting Strickland, 466 U.S. at 686).\\n\\u00b6 35. Because we conclude that Domke has not established \\\"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,\\\" we reverse the court of appeals and affirm the circuit court's judgment of conviction. See Strickland, 466 U.S. at 694. While the result is driven by our conclusion that Domke has not established prejudice from the alleged deficiencies, we also examine whether Woods' representation was constitutionally deficient.\\nA. Deficient Performance\\n\\u00b6 36. To establish deficient performance, the defendant must show that counsel's representation fell below the objective standard of \\\"reasonably effective assistance.\\\" Strickland, 466 U.S. at 687-88. Reviewing courts should be \\\"highly deferential\\\" to counsel's strategic decisions and make \\\"every effort . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.\\\" State v. Carter, 2010 WI 40, \\u00b6 22, 324 Wis. 2d 640, 782 N.W.2d 695 (quoting Strickland, 466 U.S. at 689). There is a \\\" 'strong presumption' that [counsel's] conduct 'falls within the wide range of reasonable professional assistance.' \\\" Id. (quoting Strickland, 466 U.S. at 689).\\n\\u00b6 37. Domke asserts that the court of appeals correctly concluded that Woods performed deficiently by failing to object to Rusch's hearsay testimony, by asking Rusch the dream question twice and by calling Tina Domke as a witness without checking, prior to trial, what her present position was on her daughter's truthfulness. The State asserts that Woods did not perform deficiently in regard to his handling of Rusch's testimony but does not contest the court of appeals' conclusion that Woods performed deficiently by calling Tina Domke without checking, prior to trial, whether she still doubted her daughter's allegations. We agree with Domke and the court of appeals that these three errors constituted deficient performance; however, because we conclude that these errors did not prejudice Domke, he is not entitled to a new trial.\\n1. Woods' failure to object to Rusch's hearsay testimony.\\n\\u00b6 38. On this issue, Domke and the State focus on whether this testimony was admissible as a statement made for purposes of medical diagnosis or treatment, Wis. Stat. \\u00a7 908.03(4), or whether it was inadmissible because Huntington excludes, from that hearsay exception, statements made to counselors and social workers. The State argues that Woods made a reasonable decision not to object to Rusch's hearsay testimony because it was arguably covered by the hearsay exception for statements made for purposes of medical diagnosis or treatment. The State asserts that even though Woods was not familiar with Huntington, attorneys are not required to know all obscure and unsettled points of law, and it is debatable whether Rusch's testimony was inadmissible under Huntington.\\n\\u00b6 39. Domke argues that Rusch is either a social worker or a counselor, and thus, her testimony recounting what Alicia S. told her was inadmissible hearsay under Huntington's clear limitation on the medical diagnosis and treatment hearsay exception. Domke asserts that Woods should have objected, at which point it would have been the State's burden to establish that the medical diagnosis and treatment hearsay exception applied despite Huntington.\\n\\u00b6 40. Our recent decision in Carter is instructive regarding the extent to which counsel is required to know or investigate the relevant law. 324 Wis. 2d 640. In Carter, defense counsel clearly articulated that he made a strategic decision not to present evidence that the victim may have been previously sexually assaulted by another person. Id., \\u00b6 24-35. Counsel explained that, as a result of this decision, he did not investigate the alleged previous assault or whether evidence of a previous assault would have been admissible. Id., \\u00b6 25, 34-35. This court concluded that counsel did not perform deficiently because his decision not to investigate or introduce this evidence was based on a reasonable trial strategy that was consistent with the overall trial strategy that he pursued. Id., \\u00b6 24-35. Therefore, it was reasonable for counsel not to investigate further if his strategy made such investigation unnecessary.\\n\\u00b6 41. In Carter we explained that \\\"[strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.\\\" Id., \\u00b6 34. Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary. Id., \\u00b6 23 (quoting Strickland, 466 U.S. at 691). Woods did neither. Woods did not articulate any valid strategic reason for not objecting to Rusch's hearsay testimony. Having no strategic reason to allow the presentation of Rusch's testimony, a reasonable attorney should have investigated whether it was admissible under one of the hearsay exceptions and, if not, objected to that testimony.\\n\\u00b6 42. In the Machner hearing, Woods mentioned the hearsay exception for statements made for purposes of medical diagnosis or treatment, see Wis. Stat. \\u00a7 908.03(4), but he did not appear familiar with the limitations on that exception. Wisconsin courts have applied that hearsay exception to statements made to psychologists, psychiatrists, chiropractors and nurse practitioners in addition to other medical doctors. Huntington, 216 Wis. 2d at 694-95. In Huntington, this court \\\"decline[d] . to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. \\u00a7 908.03(4), to statements made to counselors or social workers.\\\" 216 Wis. 2d at 695.\\n\\u00b6 43. Rusch testified that she is an outpatient therapist with \\\"a [bjachelor's degree in psychology and a [mjaster's degree in education with an emphasis in community counseling.\\\" She did not state that she fits within any of the professions to which Huntington allowed application of the exception. Based on the available information, a reasonable attorney would have been familiar with Huntington's limitation on the medical diagnosis or treatment hearsay exception and would have objected to Rusch's hearsay testimony on that basis.\\n\\u00b6 44. Contrary to the State's argument, this rule from Huntington is not obscure or unsettled law. State v. Maloney, 2005 WI 74, \\u00b6 28, 281 Wis. 2d 595, 698 N.W.2d 583 (holding that counsel is not required to argue an unsettled or unclear point of law). The annotations to Wis. Stat. \\u00a7 908.03 in both the 2005-06 and 2007-08 Wisconsin Statutes provide: \\\"The hearsay exception for medical diagnosis or treatment under sub. (4) does not apply to statements made to counselors or social workers. State v. Huntington, 216 Wis. 2d 671, 575 N.W.2d 268 (1998).\\\" The edition of Professor Daniel Blinka's treatise on Wisconsin Evidence available at the time of trial also states, \\\"With little discussion, \\u00a7 908.03(4) has been extended to psychologists, psychiatrists, and chiropractors. The supreme court has drawn the line, however, at statements made to 'counselors or social workers.'\\\" Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence \\u00a7 803.4, at 611-12 (2d ed. 2001) (footnote omitted). Judge Ralph Adam Fine's treatise on Wisconsin Evidence, as updated in 2007, also explained that \\\"[statements made to counselors or social workers are not within\\\" the medical diagnosis or treatment hearsay exception. Ralph Adam Fine, Fine's Wisconsin Evidence, \\u00a7 908.03(4), at 908-45 (2007).\\n\\u00b6 45. Huntington provides a clear basis upon which Woods could have objected to Rusch's hearsay testimony. While the State advocates an alternative reading of Huntington, the well-settled interpretation of Huntington \\u2014 that it excludes statements made to counselors and social workers from the medical diagnosis and treatment hearsay exception \\u2014 would have been grounds for Woods' objection. 216 Wis. 2d at 695; see also Wis. Stat. Ann. \\u00a7 908.03 (West 2007-08). From Woods' perspective as defense counsel, and with no strategic reason to allow Rusch to present this hearsay testimony, he should have objected. The circuit court noted in its decision on Domke's postconviction motion that it would have sustained an objection on that basis.\\n\\u00b6 46. Under all the circumstances set forth herein, Woods performed deficiently by failing to object to Rusch's hearsay testimony, not because allowing the testimony was part of his trial strategy, but because he was unfamiliar with Huntington's limitation on the medical diagnosis or treatment hearsay exception.\\n2. Woods' decision to ask Rusch the dream question twice.\\n\\u00b6 47. The State argues that it was reasonable for Woods to ask Rusch whether she thought that Alicia S.'s allegation regarding the first incident could have stemmed from a bad dream even though he was not sure what Rusch would say. The State asserts that it was reasonable for Woods to explore this theory because he \\\"did not have much to work with in preparing a defense.\\\" According to the State, it was consistent with his overall trial strategy to establish that the first alleged sexual assault could have just been a bad dream.\\n\\u00b6 48. Domke argues that Woods' decision to ask Rusch the dream question twice was not a reasonable trial strategy. Domke asserts that it was unreasonable for Woods to ask this question because he had no reason to believe that Rusch might concede that the first alleged assault could be based on a bad dream.\\n\\u00b6 49. This court will not second-guess a reasonable trial strategy, but this court may conclude that an attorney's performance was deficient if it was based on an \\\"irrational trial tactic\\\" or \\\"based upon caprice rather than upon judgment.\\\" State v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983). Woods asserted that his theory of the case would have been supported if Rusch had conceded that the first assault could have been just a bad dream. However, Woods could not provide any information that he had to suggest that Rusch might concede that possibility. When Rusch responded with a fairly emphatic \\\"no\\\" the first time, Woods asked Rusch this question again, which allowed Rusch to highlight that \\\"[i]n [her] professional opinion, it was not a dream.\\\" While it may have been reasonable to ask once, it was incautious and inconsistent with any rational trial strategy for Woods to ask Rusch a second time whether she thought the first assault might be the result of a bad dream. We agree with the court of appeals that Woods' error in this regard constituted deficient performance.\\n3. Woods' decision to call Tina Domke as a witness.\\n\\u00b6 50. The State does not argue that Woods' decision to call Tina Domke as a witness without knowing whether she still doubted Alicia S.'s allegations against Domke was consistent with constitutionally adequate representation. Domke asserts that the circuit court and the court of appeals correctly concluded that Woods' decision to call Tina Domke as a witness under the circumstances constituted deficient performance.\\n\\u00b6 51. When Woods decided to call Tina Domke as his first witness, he had the following information. The police report reflected that when Anderson and Rank first spoke with Tina Domke and the defendant about the alleged assaults, Tina Domke stated that Alicia S. often lied. Domke also told him that his wife had been vacillating regarding whom she believed \\u2014 Alicia S. or Domke. Woods did not speak with Tina Domke before calling her to the stand or further investigate whether she still doubted Alicia S.'s allegations at the time of trial.\\n\\u00b6 52. \\\"[CJounsel has a duty to make reasonable investigations\\\" or to make a strategic decision that makes further investigation unnecessary. Thiel, 264 Wis. 2d 571, \\u00b6 40 (quoting Strickland, 466 U.S. at 691). Woods explained that he wanted to elicit from Tina Domke that she initially told police that Alicia S. lied a lot and that she believed Domke when he said he did not assault her. This may have provided a reason to consider calling Tina Domke as a witness; but it does not provide a reasonable explanation for why Woods failed to talk with Tina Domke first or do any further investigation. Tina Domke, as the mother of the victim and the wife of the defendant, was in a unique position to comment on the credibility of Alicia S. and Domke. By calling her as a witness and asking whether she initially believed Alicia S.'s allegations, Woods allowed the State to elicit from Tina Domke that she now believed Alicia S. \\\"100 percent.\\\" A reasonable attorney, knowing that a witness had been vacillating regarding whom she believed, would have done some investigation when faced with the risk of calling a witness who may provide either extremely useful or extremely damaging testimony. If Woods had talked with Tina Domke he would have discovered that at the time of trial she completely believed Alicia S. and would have realized that the harm from her testimony to that effect likely outweighed any benefit from her testimony that she originally doubted Alicia S.\\n\\u00b6 53. Woods' decision to call Tina Domke as a witness without doing any reasonable investigation into what she might say, even after Domke told him that Tina Domke was vacillating regarding whether she believed Alicia S. or Domke, constitutes deficient performance. We now turn to whether this error along with Woods' errors regarding Rusch's testimony prejudiced the defendant. We conclude they did not.\\nB. Prejudice\\n\\u00b6 54. To establish prejudice \\\"[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.\\\" Strickland, 466 U.S. at 694. \\\"When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.\\\" Id. at 695. We examine the totality of the circumstances to determine whether counsel's errors, in the context of the entire case, deprived the defendant a fair trial. Thiel, 264 Wis. 2d 571, \\u00b6 62-63; Strickland, 466 U.S. at 695. \\\"It is not sufficient for the defendant to show that his counsel's errors 'had some conceivable effect on the outcome of the proceeding.'\\\" Carter, 324 Wis. 2d 640, \\u00b6 37 (quoting Strickland, 466 U.S. at 693).\\n\\u00b6 55. The State argues that even if Woods'performance was deficient regarding the testimony of both Rusch and Tina Domke, there was not sufficient prejudice to warrant a new trial given the totality of the circumstances. The State further argues that Rusch's testimony was merely cumulative of Alicia S.'s and BeFay's testimony because her report was what Alicia S. used to refresh her recollection, was admitted in evidence, and was consistent with Alicia S.'s testimony. The State asserts that the court of appeals, in reaching its conclusion to the contrary, failed to consider the strong evidence against Domke. This included Alicia S.'s detailed and credible testimony, the testimony of L.H. and BeFay corroborating her testimony, and Alicia S.'s statements that she had loved Domke and initially did not want to report the abuse because she did not want to break up her family. Such testimony strongly supported a conclusion that she had no motive to fabricate the allegations.\\n\\u00b6 56. Domke argues that the court of appeals properly concluded that the cumulative effect of these errors prejudiced Domke. Domke further asserts that Rusch's corroboration of Alicia S.'s testimony and her testimony that she did not think the assault allegation was the result of a bad dream were damaging to Domke because of her familiarity with Alicia S. and her expertise. In Domke's view, Tina Domke's testimony was the most damaging because of her close relationship to both Alicia S. and Domke.\\n\\u00b6 57. We are convinced, based on our review of the totality of the evidence, that Domke received a fair trial. This case boiled down to a credibility contest between Alicia S. and Domke. Woods' errors may have strengthened the State's case against Domke by providing additional corroboration for Alicia S.'s testimony and bolstering her credibility. However, even excluding the evidence admitted due to his errors, the State had a very strong case. Upon examining the totality of the circumstances we are not persuaded that, but for Woods' errors, the result would have been any different. See Strickland, 466 U.S. at 694-95. Thus, Woods' errors did not prejudice Domke, and he is not entitled to a new trial.\\n\\u00b6 58. The circuit court noted in its decision denying Domke's postconviction motion that Alicia S.'s testimony \\\"was very compelling.\\\" We will uphold the circuit court's credibility determination unless it is clearly erroneous. Thiel, 264 Wis. 2d 571, \\u00b6 23. Our review of the record leads us to agree with the circuit court's determination in that regard. Alicia S. provided detailed, credible testimony including the details of each assault, details that were consistent with the testimony of L.H., Anderson and BeFay. Alicia S. admitted that she did not disclose the details of all of the alleged assaults to each of these people, and that she initially lied to Anderson and Rank when they interviewed her because she was scared and wanted to protect Domke. The prosecutor established through Anderson that it is not unusual for sexual assault victims to delay report ing or disclosing assaults. He highlighted this point in his closing argument. Woods vigorously cross-examined Alicia S. but failed to establish any inconsistencies other than those she had already admitted to and explained during her direct examination testimony.\\n\\u00b6 59. Other evidence also supported Alicia S.'s credibility. Alicia S. testified that she had loved Domke and initially lied to Anderson and Rank to hide the alleged assaults because she did not want Domke to go to jail. This was confirmed by the testimony of both Anderson and Domke, who admitted that he told Anderson when she interviewed him that he and Alicia S. had a good relationship. The fact that Alicia S. initially lied to protect Domke supports her credibility because it explains the inconsistencies between her testimony at trial and her statements to Anderson. It also provides a potential reason for her delay in reporting the alleged abuse and her reluctance to disclose the full extent of the alleged assaults. The prosecutor noted in closing that Alicia S.'s feelings towards Domke provide a reason for her to lie to Anderson and Rank to protect Domke, and suggest that she had no motive to make up the allegations against him. Additionally, the testimony from L.H., Anderson, David S., and BeFay that Alicia S. was very upset by the alleged sexual assaults supports the conclusion that they actually occurred. Specifically, David S. testified that Alicia S.'s behavior changed after the alleged assaults took place, which was why he took her to see Rusch.\\n\\u00b6 60. Domke does not argue that there was any evidence that he was precluded from presenting as a result of counsel's errors. Domke chose to testify. He denied the allegations and attacked Alicia S.'s credibility by stating that she lied a lot and suggesting that she had a motive to fabricate the allegations because she and Domke did not have a good relationship. On cross-examination, Domke admitted that he initially told Anderson and Rank that he and Alicia S. got along well, were affectionate and had a particularly close relationship. Domke's ex-wife Tina Baxter and their three children testified that they never saw the alleged assaults or knew of other similar allegations against Domke.\\n\\u00b6 61. Even excluding the testimony of Rusch and Tina Domke that was admitted as a result of Woods' errors, it is clear that the State had a very strong case against Domke. There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say that there is a reasonable probability that but for Woods' deficient performance the result would have been different.\\nIV CONCLUSION\\n\\u00b6 62. We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined.\\n\\u00b6 63. Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.\\nBy the Court. \\u2014 The decision of the court of appeals is reversed.\\nState v. Domke, No. 2009AP2422-CR, unpublished slip op. (Wis. Ct. App. Sept. 21, 2010).\\nStrickland v. Washington, 466 U.S. 668, 687, 694 (1984) (setting forth the standard for review of claims of ineffective assistance of counsel).\\nWisconsin Stat. \\u00a7 948.025(l)(a) (2003-04) provides: \\\"Whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of: (a) A Class B felony if at least 3 of the violations were violations of s. 948.02(1).\\\"\\nWisconsin Stat. \\u00a7 948.02(1) (2003-04) provides: \\\"First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.\\\"\\nA Machner hearing is \\\"[t]he evidentiary hearing to evaluate counsel's effectiveness, which includes counsel's testimony to explain his or her handling of the case.\\\" State v. Balliette, 2011 WI 79, \\u00b6 31, 336 Wis. 2d 358, 805 N.W.2d 334.\\nWis. Stat. \\u00a7 908.03(4) (2007-08) provides:\\nHearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:\\n(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\\nAll subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.\\nDomke criticized other aspects of Woods' handling of Rusch's and BeFay's testimony as well. Domke did not pursue those alleged errors before this court, so we do not address them farther.\\nThe court of appeals also rejected the State's argument that Rusch's testimony would have been admissible as a hearsay exception under the rule of completeness. Domke, No. 2009AP2422-CR, \\u00b6 4. The State does not argue before this court that the rule of completeness would have provided a basis to admit Rusch's hearsay testimony. We thus do not address it further.\\nThe court of appeals concluded that Woods' handling of L.H.'s testimony and BeFay's report did not constitute deficient performance. Domke, No. 2009AP2422-CR, \\u00b6 1 n.l. Domke did not challenge these decisions before this court; therefore, we do not address these alleged deficiencies further.\\nSee State v. Jenkins, 168 Wis. 2d 175, 187-88, 483 N.W.2d 262 (Ct. App. 1992) (\\\"A party objecting to the admission of evidence need not specify the rule into which the evidence does not fit. Rather, the proponent has the burden to show why the evidence is admissible.\\\" (citation omitted)).\\nThe nature of Woods' errors distinguishes this case from State v. Thiel, 2003 WI 111, \\u00b6 63-80, 264 Wis. 2d 571, 665 N.W.2d 305, in which this court determined that Thiel was prejudiced by the cumulative effect of his counsel's errors. In Thiel, this court examined the totality of the circumstances at trial and concluded that Thiel was prejudiced by his counsel's errors, which kept significant evidence from the jury that would have undermined the complainant's credibility. Id. In this case, Domke does not allege that Woods' errors precluded him from presenting evidence that would have impeached Alicia S.'s credibility, and we conclude that, under the totality of the circumstances in this case, the cumulative effect of Woods' errors did not prejudice Domke.\\nDomke also makes a one-and-a-half-page alternative argument inviting this court to affirm the court of appeals and grant him a new trial in the interest of justice because the real controversy was not fully tried. See State v. Hicks, 202 Wis. 2d 150, 159-60, 549 N.W.2d 435 (1996). We decline to do so. The testimony of Rusch and Tina Domke did not \\\"so cloud[] a crucial issue\\\" such that the real controversy was not fully tried. Id. at 160. The real controversy was whether the jury believed Alicia S.'s allegations or Domke's denials. As described above, there was substantial evidence supporting Alicia S.'s allegations, the circuit court found her to be a very credible witness, and Domke was not precluded from presenting a defense. The real controversy was tried in this case.\"}"

wis/4031057.json

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+"{\"id\": \"4031057\", \"name\": \"Thomas D. Nowell and Suporn Nowell, d/b/a IC Willy's, LLC, Plaintiffs-Appellants, v. City of Wausau, Defendant-Respondent\", \"name_abbreviation\": \"Nowell v. City of Wausau\", \"decision_date\": \"2012-08-21\", \"docket_number\": \"No. 2011AP1045\", \"first_page\": \"269\", \"last_page\": \"277\", \"citations\": \"344 Wis. 2d 269\", \"volume\": \"344\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T01:03:02.039102+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Hoover, EJ., Peterson and Mangerson, JJ.\", \"parties\": \"Thomas D. Nowell and Suporn Nowell, d/b/a IC Willy's, LLC, Plaintiffs-Appellants, v. City of Wausau, Defendant-Respondent.\", \"head_matter\": \"Thomas D. Nowell and Suporn Nowell, d/b/a IC Willy's, LLC, Plaintiffs-Appellants, v. City of Wausau, Defendant-Respondent.\\nCourt of Appeals\\nNo. 2011AP1045.\\nSubmitted on briefs April 3, 2012.\\nDecided August 21, 2012.\\n2012 WI App 100\\n(Also reported in 823 N.W.2d 373.)\\nOn behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Ryan D. Lister, Wausau.\\nOn behalf of the defendant-respondent, the cause was submitted on the brief of Shane J. VanderWaal of Pietz, VanderWaal, Stacker & Rottier, S.C., Wausau.\\nBefore Hoover, EJ., Peterson and Mangerson, JJ.\\nPetition for Review filed 10-2-12.\", \"word_count\": \"2082\", \"char_count\": \"12594\", \"text\": \"MANGERSON, J.\\n\\u00b6 1. Thomas and Suporn Now-ell, d/b/a IC Willy's, LLC, appeal a judgment affirming the City of Wausau's decision not to renew the bar's combined intoxicating liquor and fermented malt beverage license. The circuit court concluded that judicial review of the City's decision under Wis. Stat. \\u00a7 125.12(2)(d) should be limited to issues reviewable by certiorari. We conclude \\u00a7 125.12(2)(d) contemplates a de novo review of the City's decision. Accordingly, we reverse and remand for the circuit court to conduct further proceedings.\\nBACKGROUND\\n\\u00b6 2. On May 25, 2010, the City notified IC Willy's that it intended not to renew the bar's combined beer and liquor license the following month. As justification, the notice cited fifty-one police calls to the premises since October 2009. Fourteen calls were noise complaints, nine of which related to the level of bass emanating from the bar. In addition, the notice cited an earlier fifteen-day suspension for a \\\"Girls Gone Wild\\\" event, as well as multiple citations for disturbing the peace and allowing minors on the premises.\\n\\u00b6 3. The following month, the City's public health and safety committee held a hearing at IC Willy's request. The committee recommended nonrenewal af ter determining that IC Willy's had violated Wis. Stat. \\u00a7 125.12(2)(ag)l. and 2. The City accepted this recommendation.\\n\\u00b6 4. IC Willy's sought judicial review of the City's decision under Wis. Stat. \\u00a7 125.12(2)(d) and demanded that the circuit court independently determine whether the bar was entitled to renewal. Citing Marquette Savings & Loan Ass'n v. Village of Twin Lakes, 38 Wis. 2d 310, 316, 156 N.W.2d 425 (1968), the court concluded that the scope of review under \\u00a7 125.12(2) (d) is limited to matters reviewable by certiorari. The court determined that the City kept within its jurisdiction, acted according to law, did not act arbitrarily, and based its decision on the evidence before it. IC Willy's appeals, again arguing that \\u00a7 125.12(2)(d) contemplates de novo review.\\nDISCUSSION\\n\\u00b6 5. Liquor and beverage license renewals are governed by Wis. Stat. \\u00a7 125.12(3). This statute permits local authorities to refuse to renew a license for a number of reasons, provided that the municipality has given the licensee notice and the opportunity for a hearing. Id. The statute prescribes the manner of the hearing before the governing municipal body and states that judicial review of the municipality's decision \\\"shall be as provided for in sub. (2)(d).\\\"\\n\\u00b6 6. Determining the scope of review established by Wis. Stat. \\u00a7 125.12(2)(d) is a matter of statutory interpretation. We begin with the plain language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, \\u00b6 44, 271 Wis. 2d 633, 681 N.W.2d 110. As it pertains to a nonrenewal decision, \\u00a7 125.12 (2) (d) directs that the \\\"procedure on review shall be the same as in civil actions instituted in the circuit court.\\\" The party desiring review must file pleadings, which must be served in accordance with Wis. Stat. ch. 801. Wis. Stat. \\u00a7 125.12(2)(d). The opposing party has twenty days to file an answer, after which \\\"the matter shall be deemed at issue and [a] hearing may be had within [five] days .\\\" Id. Paragraph (2)(d) directs that the hearing is to be held before the court without a jury, and gives the court authority to issue subpoenas for witnesses and compel their attendance. The court must file a decision within ten days of the hearing and transmit a copy to each of the parties. Id.\\n\\u00b6 7. Here, the circuit court concluded Wis. Stat. \\u00a7 125.12(2) (d) contemplates a certiorari review. Certiorari is an extraordinary remedy that tests the validity of a judicial or quasi-judicial decision. Acevedo v. City of Kenosha, 2011 WI App 10, \\u00b6 8, 331 Wis. 2d 218, 793 N.W.2d 500; Ottman v. Town of Primrose, 2011 WI 18, \\u00b6 34, 332 Wis. 2d 3, 796 N.W.2d 411. The process for obtaining a writ of certiorari bears \\\"no resemblance to the usual processes of courts, by which controversies between parties are settled by judicial tribunals,\\\" and there is no \\\"answer\\\" or other opposing pleading. Merkel v. Village of Germantown, 218 Wis. 2d 572, 577, 581 N.W.2d 552 (Ct. App. 1998) (citations omitted). \\\"The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record.\\\" Id. (citation omitted).\\n\\u00b6 8. Wisconsin Stat. \\u00a7 125.12(2)(d) plainly establishes a review process that is incompatible with either common law or statutory certiorari review. Paragraph (2) (d) unambiguously states that on review the court must use the same procedures as in civil actions. However, \\\"[t]he practiced] applicable to ordinary civil actions [are] not applicable to either common-law or statutory writs of certiorari.\\\" State ex rel. Casper v. Board of Trustees, 30 Wis. 2d 170, 176, 140 N.W.2d 301 (1966). Further, certiorari statutes usually include some provision specifying the manner in which return of the inferior tribunal's record is to be made. See, e.g., Wis. Stat. \\u00a7 59.694(10); 62.23(7)(e)10.; 88.09. No such provisions are found in \\u00a7 125.12(2)(d). We therefore conclude that paragraph (2) (d) requires a circuit court to independently determine whether a licensee is entitled to renewal.\\n\\u00b6 9. The City contends we are bound by prior decisions purportedly holding that review under Wis. Stat. \\u00a7 125.12(2)(d) is by certiorari. In Marquette Savings & Loan, 38 Wis. 2d at 316, our supreme court, reviewing a disputed village decision to renew a liquor license under Wis. Stat. ch. 176 (1967), concluded that certiorari review was appropriate \\\"where there are no statutory provisions for judicial review .\\\"\\n\\u00b6 10. The City's argument fails, however, because the evolution of the licensing statutes has rendered the court's decision in Marquette Savings & Loan obsolete. At the time, licenses for fermented malt beverages and intoxicating liquors were addressed by different sections of the state statutes. See Wis. Stat. \\u00a7 66.054 (1967); Wis. Stat. ch. 176 (1967). Chapter 176, which governed liquor licenses, did not provide a mechanism for judicial review, leading our supreme court to adopt certiorari review in Marquette Savings & Loan. See Wis. Stat. \\u00a7 176.05 (1967). By contrast, Wis. Stat. \\u00a7 66.054 (1967), which governed licenses for fermented malt beverages, included a provision for court review virtually identical to what is now Wis. Stat. \\u00a7 125.12(2)(d). See Wis. Stat. \\u00a7 66.054(14) (1967). When the legislature consolidated the statutes governing the sale of alcoholic beverages in 1981, it extended the court review previously available under \\u00a7 66.054(14) (1967), to both fermented malt beverages and intoxicating liquors, thereby creating a statutory mechanism for review of liquor license decisions. See 1981 Wis. Laws, ch. 79, \\u00a7 8 (creating Wis. Stat. \\u00a7 125.12(2)(d)); Legislative Council Note 2.k., 1981, Wis. Stat. Ann. \\u00a7 125.12 (West Supp. 2011). This obviated the need for the courts to graft certiorari review onto the statutory structure.\\n\\u00b6 11. We recognize this interpretation of Wis. Stat. \\u00a7 125.12(2)(d) represents a substantial departure from ordinary judicial review of a municipality's exer cise of the police power. \\\"This court has often recognized the principle that the court will not interfere with the exercise of police power by a municipality unless the illegality of the exercise is clear.\\\" Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis. 2d 637, 643, 96 N.W.2d 85 (1959). The decision to issue, revoke, or renew a liquor license is, in particular, \\\"a matter of local concern.\\\" See State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 800-01, 407 N.W.2d 901 (1987). Certiorari review preserves the local flavor of the proceedings because a reviewing court may not substitute its judgment for the discretion of the municipality. State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis. 2d 518, 525, 157 N.W.2d 568 (1968).\\n\\u00b6 12. As we have explained, it is evident the legislature intended closer scrutiny of licensing decisions than is provided by traditional certiorari. This was a policy choice the legislature was entitled to make, and we will not second-guess its wisdom. See Kohn v. Darlington Cmty. Schs., 2005 WI 99, \\u00b6 43, 283 Wis. 2d 1, 698 N.W.2d 794. Licensing can become a \\\"hot potato,\\\" pitting certain segments of a community against tavern owners with little political clout. See State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203, 209-10, 313 N.W.2d 805 (1982) (invalidating municipal ordinance that was \\\"supported by special inter est groups as an anticompetitive measure to keep large retail stores out of the retail liquor business\\\"). Yet tavern owners have the most to lose; \\\"[t]he [owners'] stake . is both their occupations and their investments^] for denial of the renewal of a liquor license bars them not only from selling liquor but substantially impairs the value of their taverns.\\\" Misurelli v. City of Racine, 346 F.Supp. 43, 48 (E.D. Wis. 1972), vacated, City of Kenosha v. Bruno, 412 U.S. 507 (1973). Thus, an owner has a \\\"substantial property interest in retention of his liquor license,\\\" since revocation can cause the loss of both income and investments in the physical property. Manos v. City of Green Bay, 372 F.Supp. 40, 48-49 (E.D. Wis. 1974). It is entirely possible that the legislature, recognizing those stakes, decided to provide a rapid, politically detached de novo review of municipal licensing decisions.\\n\\u00b6 13. We conclude the circuit court erroneously interpreted Wis. Stat. \\u00a7 125.12(2)(d) to require review by certiorari. This limited IC Willy's opportunity to raise matters and present evidence outside the scope of certiorari review, and incorrectly accorded the City's nonrenewal decision a presumption of correctness. On remand, the circuit court is directed to conduct any additional hearings necessary to exercise its sound discretion on the renewal of IC Willy's license.\\nBy the Court. \\u2014 Judgment reversed and cause remanded with directions.\\nAll references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.\\nAcceptable reasons for nonrenewal are listed in Wis. Stat. \\u00a7 125.12(2)(ag)l.-7.\\nThe legislature may, by statute, authorize the taking of additional evidence on certiorari review if necessary for the proper disposition of the matter. See Wis. Stat. \\u00a7 59.694(10); 62.23(7)(e)10.; 88.09. However, it may do so only to the extent that the additional evidence is relevant to one of the four matters reviewable on certiorari: (a) whether \\\"the agency kept within its jurisdiction;\\\" (b) whether \\\"the agency acted according to law;\\\" (c) whether \\\"the action was arbitrary, oppressive, or unreasonable;\\\" and (d) whether \\\"the evidence presented was such that the agency might reasonably make the decision it did.\\\" See Merkel v. Village of Germantown, 218 Wis. 2d 572, 578, 581 N.W.2d 552 (Ct. App. 1998).\\nReview under Wis. Stat. \\u00a7 66.054(14) (1967), was limited to decisions granting, revoking, or failing to revoke a license. The legislature has since expanded this review to nonrenewal decisions under Wis. Stat. \\u00a7 125.12(3).\\nIn State ex rel. Smith v. City of Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901 (1987), our supreme court arguably applied the standard governing certiorari review when determining whether a municipality had properly denied the applicant a liquor license under the consolidated licensing laws. Smith, however, is not controlling, as the issue we decide here was neither raised nor addressed in that case.\\nThe extraordinarily short time provided by the legislature for judicial review under Wis. Stat. \\u00a7 125.12(2)(d) supports this inference. In an action for judicial review of a municipality's refusal to renew a license, a decision must be rendered no later than thirty-five days after the initial pleading is filed. Id.\"}"

wis/4038358.json

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+"{\"id\": \"4038358\", \"name\": \"Joseph C. Westra, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Respondent\", \"name_abbreviation\": \"Westra v. State Farm Mutual Automobile Insurance\", \"decision_date\": \"2013-06-18\", \"docket_number\": \"No. 2013AP48\", \"first_page\": \"409\", \"last_page\": \"427\", \"citations\": \"349 Wis. 2d 409\", \"volume\": \"349\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T01:37:03.880002+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Hoover, PJ., Mangerson and Stark, JJ.\", \"parties\": \"Joseph C. Westra, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Respondent.\", \"head_matter\": \"Joseph C. Westra, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Respondent.\\nCourt of Appeals\\nNo. 2013AP48.\\nSubmitted on briefs May 28, 2013.\\nDecided June 18, 2013.\\n2013 WI App 93\\n(Also reported in 835 N.W.2d 280.)\\nOn behalf of the plaintiff-appellant, the cause was submitted on the briefs of C.M. Bye and Martha H. Heidt of Bye, Goff & Rohde, Ltd., River Falls.\\nOn behalf of the defendant-respondent, the cause was submitted on the brief of Claude J. Covelli of Boardman & Clark, LLP, Madison.\\nBefore Hoover, PJ., Mangerson and Stark, JJ.\", \"word_count\": \"4450\", \"char_count\": \"27869\", \"text\": \"STARK, J.\\n\\u00b6 1. This case involves a dispute be tween Joseph Westra and his automobile insurer, State Farm Mutual Automobile Insurance Company, over the stacking, or adding together, of underinsured motorist coverage limits. Specifically, we must determine whether a provision in Westra's insurance policies that limited the stacking of underinsured motorist coverage to the coverage limits for three vehicles was permissible under Wisconsin law on July 7, 2011, the date of the underlying accident.\\n\\u00b6 2. Wisconsin Stat. \\u00a7 631.43(1) generally prohibits insurance policies from including anti-stacking provisions. In contrast, Wis. Stat. \\u00a7 632.32(6)(d), which was in effect from November 2009 until November 2011 and applied specifically to underinsured motorist coverage, allowed insurers to \\\"limit the number of motor vehicles for which coverage limits may be added to 3 vehicles.\\\" The circuit court determined these statutes were irreconcilable. It therefore applied the more specific statute, \\u00a7 632.32(6)(d), and concluded the anti-stacking provision in State Farm's policies was permissible at the time of the accident. As a result, the court concluded that Westra, who had already recovered the underinsured motorist coverage limits for three vehicles, was barred from recovering the coverage limits for two additional vehicles that were insured by State Farm. We agree with the circuit court's reasoning. We therefore affirm the summary judgment in State Farm's favor.\\nBACKGROUND\\n\\u00b6 3. The facts are undisputed. Westra was injured when a motorcycle he was driving collided with a vehicle driven by Andrew Kerrigan. After the accident, Westra recovered insurance proceeds under four separate policies. First, he recovered the $150,000 limit of Kerrigan's automobile liability policy, which was issued by American Family Mutual Automobile Insurance Company. Second, he recovered the $100,000 underinsured motorist limit of a policy that Acuity, a Mutual Company, issued to the owner of the motorcycle he was driving. Third, Westra recovered the $100,000 underinsured motorist limit and the $10,000 medical payments limit of an Acuity policy on a pickup truck he owned. Fourth, Westra recovered the $100,000 underinsured motorist limit and the $10,000 medical payments limit of a State Farm policy issued to him on a 2003 Harley-Davidson motorcycle. In total, Westra recovered $470,000 in insurance proceeds.\\n\\u00b6 4. Westra also sought to recover the underinsured motorist limits of two additional State Farm policies, which were issued to him on a 2000 Chevrolet pickup truck and a 1999 Harley-Davidson motorcycle. Each of those policies provided for $100,000 in underinsured motorist coverage. State Farm denied coverage under both policies, based on the following anti-stacking provision:\\n1. If Underinsured Motor Vehicle Coverage provided by this policy and:\\na. if underinsured motor vehicle coverage provided by one or more other sources also apply to the same accident, then the maximum amount that may be paid from all sources combined is the sum of the highest applicable limits corresponding to the three underinsured motor vehicle coverages providing those highest applicable limits; and\\nb. if one or more other vehicle policies issued to you or any resident relative by the State Farm Companies apply to the same bodily injury, then we may choose one or more of those vehicle policies from which to make payment.\\n\\u00b6 5. Westra then filed the instant lawsuit against State Farm, seeking $200,000 in underinsured motorist coverage. State Farm moved for summary judgment. The parties stipulated Westra had suffered bodily injury damages that would entitle him to recover at least $200,000 in additional underinsured motorist coverage. They also agreed that the anti-stacking provision in State Farm's two remaining policies unambiguously barred Westra from recovering those policies' underinsured motorist limits because he had already received payment under three underinsured motorist coverages with equal or greater limits. The disputed issue was whether the anti-stacking provision was permissible under Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d).\\n\\u00b6 6. Wisconsin Stat. \\u00a7 631.43(1) generally prohibits anti-stacking provisions in insurance policies, stating:\\nWhen 2 or more policies promise to indemnify an insured against the same loss, no \\\"other insurance\\\" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no \\\"other insurance\\\" provisions. The policies may by their terms define the extent to which each is primary and each excess, but if the policies contain inconsistent terms on that point, the insurers shall be jointly and severally liable to the insured on any coverage where the terms are inconsistent, each to the full amount of coverage it provided. Settlement among the insurers shall not alter any rights of the insured.\\nHowever, Wis. Stat. \\u00a7 632.32(6)(d), which applies specifically to uninsured and underinsured motorist coverages, states:\\nNo policy may provide that, regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy, or premiums paid, the limits for any uninsured motorist coverage or underinsured motorist coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident, except that a policy may limit the number of motor vehicles for which the limits for coverage may be added to three vehicles.\\n(Emphasis added.)\\n\\u00b6 7. The circuit court concluded Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d) were irreconcilable because the former prohibited anti-stacking provisions in all insurance policies, but the latter allowed insurers to limit the stacking of underinsured motorist coverage to the coverage limits for three vehicles. Because the statutes could not be harmonized, the court decided the more specific statute, \\u00a7 632.32(6)(d), should govern. The court further concluded the plain language of \\u00a7 632.32(6)(d) unambiguously permitted the anti-stacking provision in State Farm's policies. The court therefore granted summary judgment in favor of State Farm, and Westra appeals.\\nDISCUSSION\\n\\u00b6 8. We review a grant of summary judgment independently, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, \\u00b6 6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Wis. Stat. \\u00a7 802.08(2). Here, the facts are undisputed, leaving only an issue of law for our review.\\n\\u00b6 9. Statutory interpretation, which includes interpreting the interaction between two statutes, presents a question of law that we review independently. Courtyard Condo. Ass'n v. Draper, 2001 WI App 115, \\u00b6 5-6, 244 Wis. 2d 153, 629 N.W.2d 38. Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, \\u00b6 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the statute is unambiguous on its face, we simply apply the statutory language as written. Id. If the statutory language is ambiguous \\u2014 that is, subject to more than one reasonable interpretation \\u2014 we look to extrinsic sources to ascertain the legislature's intent. Id., \\u00b6 47, 50. A statute that appears unambiguous on its face may be made ambiguous by its interaction with other statutes. Courtyard Condo. Ass'n, 244 Wis. 2d 153, \\u00b6 6.\\n\\u00b6 10. When statutes on the same subject matter appear to conflict, we have a duty to construe the statutes \\\"in a manner that harmonizes them in order to give each full force and effect.\\\" State v. Jeremiah C., 2003 WI App 40, \\u00b6 17, 260 Wis. 2d 359, 659 N.W.2d 193; see also State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132 (1994) (When interpreting similar statutory provisions, a court must \\\"make every attempt to give effect to both by construing them together so as to be consistent with one another[.]\\\"). However, if conflicting statutes on the same subject matter cannot be reconciled, the more specific statute controls. See Clean Wis., Inc. v. Public Serv. Comm'n, 2005 WI 93, \\u00b6 175, 282 Wis. 2d 250, 700 N.W.2d 768. \\\"[T]his is especially true where the specific statute is enacted after the general statute.\\\" Martineau v. State Conservation Comm'n, 46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970).\\n\\u00b6 11. The circuit court concluded Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d) were irreconcilable, and it was therefore impossible to give each statute its full force and effect. We agree. Section 631.43(1) provides that, if two or more policies promise to indemnify an insured against the same loss, \\\"no 'other insurance' provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no 'other insurance' provisions.\\\" This language clearly and unambiguously precludes policy provisions that prevent an insured from aggregating coverages for a single loss.\\n\\u00b6 12. Consistent with Wis. Stat. \\u00a7 631.43(1), the first portion of Wis. Stat. \\u00a7 632.32(6)(d) prohibits policies from providing that \\\"the limits for any uninsured or underinsured motorist coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles to determine the limit of insurance coverage available for bodily injury or death suffered by a person in any one accident[.]\\\" Like \\u00a7 631.43(1), this language clearly prohibits anti-stacking provisions. However, \\u00a7 632.32(6) (d) further provides that a policy \\\"may limit the number of motor vehicles for which coverage limits may be added to 3 vehicles.\\\" Thus, read in its entirety, \\u00a7 632.32(6)(d) requires insurers to allow stacking of underinsured motorist coverage limits, but it permits them to restrict stacking to the coverage limits for three vehicles.\\n\\u00b6 13. The circuit court aptly explained the conflict between Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d), stating:\\n[Wisconsin] Stat. \\u00a7 631.43(1) essentially prohibited anti-stacking provisions in motor vehicle insurance policies, while Wis. Stat. \\u00a7 632.32(6)(d) served to allow such provisions with some restrictions. Such a conflict is irreconcilable because the statutes required stacking of insurance coverage without limit while simultaneously allowing provisions restricting the stacking of such coverage.\\nWe agree with the circuit court's reasoning. In addition, we reject Westra's argument that the statutes can be harmonized.\\n\\u00b6 14. Westra's attempt to harmonize Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d) rests on the distinction between inter-policy and intra-policy stacking. Inter-policy stacking refers to the stacking of coverage under separate insurance policies covering different vehicles, regardless of whether the policies were issued by the same insurer. See Arnold E Anderson, Wisconsin Insurance Law, \\u00a7 3.59 (6th ed. 2010). Intra-policy refers to the stacking of coverage under a single policy that covers multiple vehicles, with a separate premium attributable to each vehicle. See id., \\u00a7 3.60.\\n\\u00b6 15. Westra argues Wis. Stat. \\u00a7 631.43(1) applies only to inter-policy stacking. He notes that, by its plain language, \\u00a7 631.43(1) refers to situations in which \\\"2 or more policies promise to indemnify an insured against the same loss.\\\" Thus, he argues the statute bans policy provisions that prohibit inter-policy stacking but allows provisions that prohibit intra-policy stacking. Turning to Wis. Stat. \\u00a7 632.32(6)(d), Westra argues the first portion of the statute expressly prohibits all anti-stacking provisions for underinsured motorist coverage, whether inter-policy or intra-policy, but the second portion allows insurers to restrict intra-policy stacking to the coverage limits for three vehicles. Westra asserts that, under this interpretation, the three-vehicle exception in \\u00a7 632.32(6)(d) does not conflict with \\u00a7 631.43(l)'s prohibition on anti-stacking provisions because the former applies only to intra-policy stacking and the latter applies only to inter-policy stacking.\\n\\u00b6 16. Westra's attempt to reconcile Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d)fails for two reasons. First, as Westra concedes, our supreme court has concluded that \\u00a7 631.43(l)'s prohibition on anti-stacking provisions applies to both inter- and intra-policy stacking. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 224, 485 N.W.2d 267 (1992). Thus, even if we accepted Westra's argument that \\u00a7 632.32(6)(d) allows insurers to restrict stacking of underinsured motorist coverage to three vehicles only in situations involving intra-policy stacking, the statute would still conflict with \\u00a7 631.43(1).\\n\\u00b6 17. Second, the plain language of Wis. Stat. \\u00a7 632.32(6)(d) does not support Westra's argument that the three-vehicle exception applies only to intra-policy stacking. The first portion of \\u00a7 632.32(6)(d) specifically states,\\nNo policy may provide that, regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy, or premiums paid, the limits for any... underinsured motorist coverage under the policy may not be added to the limits for similar coverage applying to other motor vehicles!)]\\n(Emphasis added.) Thus, the first portion of the statute requires that insurers allow stacking of underinsured motorist coverage both in situations involving multiple policies \\u2014 i.e., inter-policy stacking \\u2014 and in situations involving a single policy that covers multiple vehicles\\u2014 i.e., intra-policy stacking. The second portion of the statute then creates an exception to this rule, allowing a policy to \\\"limit the number of motor vehicles for which the limits of coverage may be added to 3 vehicles.\\\" Wis. Stat. \\u00a7 632.32(6)(d). The second portion of the statute does not distinguish between inter- and intra-policy stacking or suggest that the three-vehicle exception applies only when the insured attempts to stack multiple underinsured motorist coverages under a single policy. By its plain language, the three-vehicle exception applies to both inter- and intra-policy stacking.\\n\\u00b6 18. Westra contends it would be \\\"more reasonable\\\" to read the three-vehicle exception in Wis. Stat. \\u00a7 632.32(6)(d) as \\\"a policy may limit the number of motor vehicles [insured under a single policy] for which limits of coverage may be added to three vehicles.\\\" (Bracketed language added by Westra.) However, Westra's proposed interpretation would require us to read language into the statute. Courts may not \\\"add words to a statute to give it a certain meaning[,]\\\" and we refuse to do so here. See Fond du Lac Cnty. v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989).\\n\\u00b6 19. Westra also observes that Wis. Stat. \\u00a7 632.32(6)(d) uses the singular term \\\"policy\\\" on three occasions, instead of the plural \\\"policies.\\\" He then argues, without further elaboration, \\\"Under the doctrine of ejusdem generis, [ ] the [three-vehicle] exception applies to allow a single policy to limit the number of motor vehicles that may be added under a single policy to just three vehicles.\\\" Westra's argument on this point is undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals may disregard undeveloped arguments). Further, we fail to see how the legislature's use of the singular term \\\"policy\\\" when describing permitted provisions in an insurance policy shows an intent to restrict the three-vehicle exception in \\u00a7 632.32(6)(d) to situations involving intra-policy stacking. If, as Westra contends, the legislature intended to limit the three-vehicle exception to vehicles insured under a single policy, it would have used the phrase \\\"insured under a single policy.\\\" As written, \\u00a7 632.32(6)(d) plainly and unambiguously allows insurers to restrict both inter- and intra-policy stacking of underinsured motorist coverage to three vehicles.\\n\\u00b6 20. In a separate argument in his reply brief, Westra contends that Wis. Stat. \\u00a7 632.32(6)(d) \\\"expressly . precludes any insurance anti-stacking provision based on\\\" the number of: (1) policies involved; (2) vehicles involved; (3) persons covered; (4) claims made; (5) vehicles or premiums shown on the policy, or premiums paid. He then argues that, under the doctrine of the last antecedent, the three-vehicle exception can only apply to the last item listed \\u2014 vehicles or premiums shown on the policy, or premiums paid. Thus, he contends the three-vehicle exception applies only in situations where the insurer attempts to prevent stacking of underinsured motorist coverages for multiple vehicles insured under a single policy.\\n\\u00b6 21. However, Westra concedes that, under the doctrine of the last antecedent, \\\"qualifying words, phrases, and clauses[] are to be applied to the words or phrase immediately proceeding [sic]\\\" them. Here, the words \\\"vehicles or premiums shown on the policy, or premiums paid\\\" do not immediately precede the three-vehicle exception. Moreover, we reject Westra's assertion that the three-vehicle exception specifically modifies or qualifies any of the individual items listed above. Instead, the exception qualifies the general proposition set forth in the first portion of Wis. Stat. \\u00a7 632.32(6)(d) that an insurer may not prevent its insured from stacking underinsured motorist coverage.\\n\\u00b6 22. Westra further argues it is unreasonable to interpret Wis. Stat. \\u00a7 632.32(6)(d) as applying to inter-policy stacking because the statute \\\"says nothing about which policies would have priority.\\\" He contends that, without some rule as to which insurer's policy has priority, it will be \\\"purely a matter of fortuity as to which insurer gets stuck with actually paying the [underinsured motorist] limits.\\\" Westra's argument fails because priority among insurers is a completely separate inquiry from the insured's ability to aggregate coverage, and neither has any effect on the other. Priority disputes are governed by policy provisions dictating when a particular policy provides primary coverage and when it provides excess coverage. Westra's State Farm policies contain provisions addressing priority. Thus, the absence of priority rules in \\u00a7 632.32(6)(d) does not mean the statute cannot apply to situations involving inter-policy stacking.\\n\\u00b6 23. Westra nevertheless contends the legislative history of Wis. Stat. \\u00a7 632.32(6)(d) shows that the legislature intended the three-vehicle exception to apply only to intra-policy stacking. However, legislative history cannot be used to create ambiguity in an otherwise unambiguous statute. Kalal, 271 Wis. 2d 633, \\u00b6 51. We have already concluded \\u00a7 632.32(6)(d) unambiguously applies to both inter- and intra-policy stacking, so it is unnecessary to consult legislative history.\\n\\u00b6 24. Further, the legislative history Westra cites does not mandate a conclusion that the three-vehicle exception in Wis. Stat. \\u00a7 632.32(6)(d) applies only to intra-policy stacking. Westra relies on Governor James Doyle's Veto Message on 2009 Wis. Act 28, \\u00a7 9, as quoted in Belding v. DeMoulin, 2013 WI App 26, 346 Wis. 2d 160, 828 N.W.2d 890, review granted (WI May 10, 2013) (No. 2012AP829). In the veto message, the governor explained he was vetoing a provision that would have repealed Wis. Stat. \\u00a7 632.32(5)(j), which permitted the use of drive other car exclusions, but he was \\\"retaining separate provisions . . . that allow the stacking of coverage limits for up to three vehicles owned by the insured.\\\" See Belding, 346 Wis. 2d 160, \\u00b6 20 (emphasis added). Westra contends the governor's reference to vehicles \\\"owned by the insured\\\" shows that the legislature intended \\u00a7 632.32(6)(d)'s three-vehicle limitation on stacking to apply only to intra-policy stacking. We disagree for two reasons.\\n\\u00b6 25. First, that vehicles are \\\"owned by the insured\\\" does not necessarily mean they are insured under a single policy. An insured may own multiple vehicles that are insured under separate policies, as Westra did here. The veto message does not say anything about intra-policy stacking, nor does it state the three-vehicle exception applies only when the three vehicles are insured under a single policy. Second, while the veto message states that Wis. Stat. \\u00a7 632.32(6)(d) allows stacking of underinsured motorist coverage limits for three vehicles owned by the insured, it does not state the statute applies only to vehicles owned by the insured. Merely stating that the statute permits stacking of coverage limits for vehicles owned by the insured does not mean the three-vehicle limit cannot be met by stacking coverage limits for vehicles owned by other parties.\\n\\u00b6 26. Westra argues Belding conclusively established that the three-vehicle exception in Wis. Stat. \\u00a7 632.32(6)(d) applies only to vehicles owned by the same insured. However, Westra reads Belding too broadly. The Belding court was asked to determine whether a drive other car exclusion, which was explicitly authorized by Wis. Stat. \\u00a7 632.32(5)(j), could prevent the stacking of uninsured motorist coverage, even though \\u00a7 632.32(6)(d) allowed uninsured motorist coverage to be stacked for up to three vehicles. See Belding, 346 Wis. 2d 160, \\u00b6 1. In addressing that issue, the court quoted the portion of Governor Doyle's veto message stating that \\u00a7 632.32(6)(d) would \\\"allow the stacking of coverage limits for up to three vehicles owned by the insured.\\\" Belding, 346 Wis. 2d 160, \\u00b6 20. The court ultimately concluded that, under the law that was in place from November 2009 to November 2011, drive other car exclusions \\\"could not prevent insureds from stacking together their [uninsured motorist] coverage limits for up to three vehicles owned and insured by the same insured.\\\" Id., \\u00b6 21. The court did not address the issue argued by Westra \\u2014 that is, whether the three-vehicle limitation on stacking in \\u00a7 632.32(6)(d) applies only when the insured attempts to stack coverage for vehicles insured under a single policy. Thus, contrary to Westra's assertion, Belding does not control the dispositive issue in this case.\\n\\u00b6 27. We have rejected Westra's argument that Wis. Stat. \\u00a7 631.43(1) and 632.32(6)(d) can be harmonized. We must therefore apply the more specific statute to determine whether State Farm's anti-stacking provision was permissible at the time of the accident. See Clean Wis., 282 Wis. 2d 250, \\u00b6 175. Section 631.43, which was enacted in 1975, applies broadly to all types of indemnity insurance. See 1975 Wis. Laws, ch. 375, \\u00a7 17 note (differentiating \\u00a7 631.43, which \\\"appl[ies] to all indemnity insurance[,]\\\" from its predecessor statute, which applied only to fire insurance). In contrast, \\u00a7 632.32(6)(d), which was enacted in 2009, applies specifically to uninsured and underinsured motorist coverage. See 2009 Wis. Act 28, \\u00a7 3168. Because \\u00a7 632.32(6)(d) applies to a narrower class of insurance coverage than \\u00a7 631.43(1), and because it specifically applies to the type of coverage at issue in this case, \\u00a7 632.32(6)(d) is the more specific statute. In addition, \\u00a7 632.32(6)(d) was enacted after \\u00a7 631.43(1). See Martineau, 46 Wis. 2d at 449 (rule favoring application of specific statute over general statute is \\\"especially true\\\" where specific statute was enacted after general statute). We must therefore apply \\u00a7 632.32(6)(d) to determine the validity of State Farm's anti-stacking provision.\\n\\u00b6 28. We have already concluded that Wis. Stat. \\u00a7 632.32(6)(d) plainly and unambiguously allows insurers to restrict both inter- and intra-policy stacking of underinsured motorist coverage to the coverage limits for three vehicles. The anti-stacking provision in State Farm's policies does just that \\u2014 it limits the insured to recovering \\\"the sum of the highest applicable limits corresponding to the three underinsured motor vehicle coverages providing those highest applicable limits[.]\\\" Thus, State Farm's anti-stacking provision is permissible under \\u00a7 632.32(6)(d). Westra has already recovered the $100,000 underinsured motorist coverage limits for three vehicles. Consequently, the anti-stacking provision in his two remaining State Farm policies bars him from recovering an additional $200,000 in under-insured motorist coverage under those policies. The circuit court properly granted summary judgment in State Farm's favor.\\n\\u00b6 29. In a final effort to avoid the application of Wis. Stat. \\u00a7 632.32(6)(d), Westra argues that, under the facts of this case, State Farm's anti-stacking provision amounts to a prohibited exclusion. He cites Progressive Northern Insurance Co. v. Hall, 2006 WI 13, \\u00b6 28, 288 Wis. 2d 282, 709 N.W.2d 46, for the proposition that an exclusion \\\"is a provision that eliminates coverage under a particular policy where, were it not for the exclusion, coverage would have existed under that policy.\\\" He argues that, under the circumstances of this case, the anti-stacking provision meets the definition of an exclusion because it completely eliminates underinsured motorist coverage under two of his State Farm policies. Westra then observes that, under Wis. Stat. \\u00a7 632.32(5)(e) automobile insurance policies \\\"may provide for exclusions not prohibited by [\\u00a7 632.32(6)] or other applicable law.\\\" He contends State Farm's anti-stacking provision fails both prongs of this two-part test because it is prohibited by \\u00a7 632.32(6)(d) and also by Wis. Stat. \\u00a7 631.43(1). He therefore argues the anti-stacking provision cannot be enforced under the facts of this case.\\n\\u00b6 30. Even if Westra is correct that the anti-stacking provision operates as an exclusion under the circumstances of this case, we nevertheless conclude it is not a prohibited exclusion. First, while Westra contends the anti-stacking provision is prohibited by Wis. Stat. \\u00a7 632.32(6)(d), we have already rejected his argument and concluded \\u00a7 632.32(6)(d) unambiguously authorizes the provision. Second, although we agree with Westra that Wis. Stat. \\u00a7 631.43(1) prohibits the anti-stacking provision, \\u00a7 631.43(1) irreconcilably conflicts with \\u00a7 632.32(6)(d). Section 632.32(6)(d) is the more specific statute, and we must therefore apply \\u00a7 632.32(6)(d) instead of \\u00a7 631.43(1). Because \\u00a7 632.32(6)(d) expressly authorizes the anti-stacking provision, the anti-stacking provision is not a prohibited exclusion.\\nBy the Court. \\u2014 Judgment affirmed.\\nAll references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.\\nThe term ejusdem generis refers to \\\"[a] canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.\\\" Black's Law Dictionary 556 (8th ed. 2004).\\nSee Wis. Stat. \\u00a7 631.43(1) (\\\"The policies may by their terms define the extent to which each is primary and each excess, but if the policies contain inconsistent terms on that point, the insurers shall be jointly and severally liable to the insured on any coverage where the terms are inconsistent!.]\\\").\"}"

wis/5748597.json

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+"{\"id\": \"5748597\", \"name\": \"Ronald J. VanHierden, Plaintiff-Appellant, v. Jack Swelstad, M.D. and Injured Patients and Families Compensation Fund, Defendants-Respondents, Transportation Insurance Company, Subrogated Defendant\", \"name_abbreviation\": \"VanHierden v. Swelstad\", \"decision_date\": \"2009-12-30\", \"docket_number\": \"No. 2009AP544\", \"first_page\": \"267\", \"last_page\": \"274\", \"citations\": \"323 Wis. 2d 267\", \"volume\": \"323\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:44:34.295045+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Lundsten, Higginbotham and Bridge, JJ.\", \"parties\": \"Ronald J. VanHierden, Plaintiff-Appellant, v. Jack Swelstad, M.D. and Injured Patients and Families Compensation Fund, Defendants-Respondents, Transportation Insurance Company, Subrogated Defendant.\", \"head_matter\": \"Ronald J. VanHierden, Plaintiff-Appellant, v. Jack Swelstad, M.D. and Injured Patients and Families Compensation Fund, Defendants-Respondents, Transportation Insurance Company, Subrogated Defendant.\\nCourt of Appeals\\nNo. 2009AP544.\\nSubmitted on briefs August 10, 2009.\\n\\u2014Decided December 30, 2009.\\n2010 WI App 16\\n(Also reported in 779 N.W.2d 441.)\\nOn behalf of the plaintiff-appellant, the cause was submitted on the briefs of Philip A. Munroe of Di Renzo & Bomier, LLC, Neenah.\\nOn behalf of the defendant-respondent Jack Swelstad, M.D., the cause was submitted on the briefs of Robert L. McCracken and Ryan R. Graff, Manitowoc.\\nOn behalf of the defendant-respondent Injured Patients and Families Compensation Fund, the cause was submitted on the brief of George Burnett and T Wickham Schmidt of Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay.\\nBefore Lundsten, Higginbotham and Bridge, JJ.\\nPetition to Review denied 3/16/10.\", \"word_count\": \"1621\", \"char_count\": \"9774\", \"text\": \"BRIDGE, J.\\n\\u00b6 1. Ronald VanHierden brought suit against Dr. Jack Swelstad and the Injured Patients and Families Compensation Fund for breach of contract due to Dr. Swelstad's failure to cure VanHierden's pain. The circuit court granted Dr. Swelstad's motion for summary judgment, ruling as a matter of law that no contract to cure was formed. We agree and therefore affirm.\\nBACKGROUND\\n\\u00b6 2. On February 20, 2002, VanHierden injured his left thumb and hand in a work-related accident and underwent surgery on the same day to repair it. Following the surgery, VanHierden developed reflex sympathetic dystrophy which resulted in persistent pain in the base of his left thumb. VanHierden was ultimately referred to Dr. Swelstad, a surgeon, regarding the possibility of having a sympathectomy performed to alleviate his pain.\\n\\u00b6 3. VanHierden met with Dr. Swelstad on August 5, 2002. According to VanHierden, Swelstad told him, \\\"we're going to get rid of your pain and we're going to get you back to work.\\\" Following his consultation with Dr. Swelstad, VanHierden elected to have the sympath ectomy performed and executed a written consent for surgery form on August 7, 2002, the date of the surgery. This forrrij which was signed by both VanHierden and Dr. Swelstad, provided in relevant part:\\nThe procedure listed under paragraph 1 has been fully explained to me by Dr. Swelstad and I completely understand the nature and consequences of the procedure^). I have further had explained to me and discussed available alternatives and possible outcomes, and understand the risk of complications, serious injury or even death that may result from both known and unknown causes. I have been informed that there are other risks that are adherent to the performance of any surgical procedure. I am aware that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantees have been made to me concerning the results of the operation or procedure(s).\\n\\u00b6 4. Dr. Swelstad performed the sympathectomy but, according to VanHierden, the surgery did not end his pain, nor did it allow him to return to work. Rather, he claims that his pain worsened and he has since undergone \\\"an extensive course of medical treatment resulting in economic and non-economic losses including severe unrelenting pain which has left [him] totally disabled.\\\"\\n\\u00b6 5. VanHierden brought suit against Dr. Swelstad for breach of contract based on the theory that Dr. Swelstad breached a contract to cure VanHierden. Dr. Swelstad moved for summary judgment, arguing in part that he had not offered or promised to cure VanHierden. The Injured Patients and Families Compensation Fund filed a brief in support of Dr. Swelstad's motion.\\n\\u00b6 6. The circuit court ruled as a matter of law that a contract was never formed and, therefore, granted Dr. Swelstad's motion for summary judgment. It ruled that Dr. Swelstad's statement \\\"is a textbook case of a mere expression of intention, opinion, or prophecy,\\\" and that \\\"a reasonable person in the position of [VanHierden] would not have understood this statement to create a binding warranty or contract.\\\" VanHierden appeals.\\nSTANDARD OF REVIEW\\n\\u00b6 7. We review summary judgments de novo, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, \\u00b6 6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. \\u00a7 802.08(2) (2007-08).\\nDISCUSSION\\n\\u00b6 8. Patients seeking money damages from a physician generally do so under the theory of malpractice; however, other theories of recovery, including breach of contract, have been utilized as well. Jack W Shaw, Jr., Annotation, Recovery Against Physician on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221, \\u00a7 2[a] (1971). In Wisconsin, malpractice actions \\\"may sound in either tort or contract.\\\" McMahon v. Brown, 125 Wis. 2d 351, 353, 371 N.W.2d 414 (Ct. App. 1985).\\n\\u00b6 9. As a general rule, physicians are neither the warrantor of a cure, nor the guarantor of the result of his or her treatment. Ehlinger v. Sipes, 155 Wis. 2d 1, 14, 454 N.W.2d 754 (1990). Wisconsin courts have recognized, however, that a physician may bind himself or herself by contracting to cure a patient or to accomplish a particular result. See Reynolds v. Graves, 3 Wis. 416 (1854) (analyzing whether the plaintiff proved the existence of an agreement on the part of the physician to cure the plaintiffs ailment); see also McMahon, 125 Wis. 2d 351.\\n\\u00b6 10. The law recognizes that a doctor's contract to cure must be express, since a promise to cure is neither implied nor presumed in the contract between doctor and patient:\\nA doctor may, although he seldom does, contract to cure a patient, or to accomplish a particular result, in which case the doctor may be liable for breach of contract when he does not succeed. In the absence of such an express agreement, the doctor does not warrant or insure either a correct diagnosis or a successful course of treatment....\\nVan Zee v. Witzke, 445 N.W.2d 34, 36 (S.D. 1989) (citing William L. Prosser & W Keeton, The Law op Torts \\u00a7 32 (5th ed. 1984)). Further, there must be clear proof that the contract was made in order for a physician to be held liable for breach of contract under such circumstances. See 1 Richard A. Lord, Williston on Contracts \\u00a7 62:14 (4th ed. 2002); 61 Am. Jur. Physicians, Sur geons, etc., \\u00a7 161 at 293 (1999). See also Gault v. Sideman, 191 N.E.2d 436, 441 (Ill. App. 1963) (proof of contract between physician and patient to cure must be clear); Sullivan v. O'Connor, 296 N.E.2d 183, 186 (Mass. 1973) (noting that the law requires clear proof of a contract to cure or to achieve a particular result); Van Zee, 445 N.W.2d at 36-37 (liability for breach of a contract to cure or to achieve a particular result must be established by \\\"clear proof').\\n\\u00b6 11. The existence of a valid express contract presents a question of law we review de novo when, as here, the relevant facts are undisputed. See Piaskoski & Assocs. v. Ricciardi, 2004 WI App 152, \\u00b6 7, 275 Wis. 2d 650, 686 N.W.2d 675. In a breach of contract case, the plaintiff must establish the existence of the contract. See Household Utilities, Inc. v. Andrews Co., Inc., 71 Wis. 2d 17, 28, 236 N.W.2d 663 (1975). Whether there is clear proof of the contract depends on what was said by the physician and the circumstances under which it was said. Guilmet v. Campbell, 188 N.W.2d 601, 606-07 (Mich. 1971) (superseded by statute).\\n\\u00b6 12. As noted above, VanHierden's contention that Dr. Swelstad contracted to cure his pain is based on the following statement: \\\"we're going to get rid of your pain and we're going to get you back to work.\\\" We need not decide whether this statement, viewed by itself, constitutes a contract to cure because there is a very significant additional fact: VanHierden signed a form acknowledging that no particular result was promised.\\n\\u00b6 13. After the doctor made the oral statement, VanHierden signed the consent to surgery form. By signing this form, VanHi\\u00e9rden specifically acknowledged that he was \\\"aware that the practice of medicine and surgery is not an exact science and. . that no guarantees have been made to [him] concerning the results of the operation or procedure(s).\\\" In light of this express acknowledgement, it would be unreasonable to conclude that VanHierden had been given and relied upon a guarantee concerning the result of the surgery. Accordingly, we conclude that summary judgment was properly granted in favor of Dr. Swelstad.\\nCONCLUSION\\n\\u00b6 14. For the reasons discussed above, we affirm the judgment of the circuit court.\\nBy the Court. \\u2014 Judgment affirmed.\\nThe circuit court's ruling was based on this single statement. The parties dispute whether the court should also have considered a second alleged statement by Dr. Swelstad that it was a \\\"simple procedure, it's been done a million times; he's done it hundreds of times; that [VanHierden's] pain would be cured and he would go back to work.\\\" VanHierden's ex-wife testified during her deposition that Dr. Swelstad made this statement to VanHierden during the August 5, 2002 visit. We need not resolve this dispute because, even if we assumed that Dr. Swelstad made these additional statements, our analysis would be the same.\\nAll references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.\\nDr. Swelstad argues that the parol evidence rule precludes consideration of the alleged promise to cure statements which were made prior to the date upon which VanHierden executed the consent to surgery form. For purposes of our analysis, however, we assume without deciding that the parol evidence rule does not bar consideration of Dr. Swelstad's statements.\"}"

wis/8336866.json

@@ -0,0 +1 @@
+"{\"id\": \"8336866\", \"name\": \"Theresa Huml, Plaintiff-Respondent, v. Robert W. Vlazny, Defendant-Appellant, Todd J. Cecchi, Roy Cecchi, The St. Paul Companies, Inc., a/k/a St. Paul Fire & Marine Insurance Company, and St. Paul Insurance Company of Illinois, Defendants\", \"name_abbreviation\": \"Huml v. Vlazny\", \"decision_date\": \"2006-07-07\", \"docket_number\": \"No. 2004AP36\", \"first_page\": \"169\", \"last_page\": \"201\", \"citations\": \"293 Wis. 2d 169\", \"volume\": \"293\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T02:28:37.656520+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u00b6 65. I am authorized to state that Justice N. PATRICK CROOKS joins this opinion.\", \"parties\": \"Theresa Huml, Plaintiff-Respondent, v. Robert W. Vlazny, Defendant-Appellant, Todd J. Cecchi, Roy Cecchi, The St. Paul Companies, Inc., a/k/a St. Paul Fire & Marine Insurance Company, and St. Paul Insurance Company of Illinois, Defendants.\", \"head_matter\": \"Theresa Huml, Plaintiff-Respondent, v. Robert W. Vlazny, Defendant-Appellant, Todd J. Cecchi, Roy Cecchi, The St. Paul Companies, Inc., a/k/a St. Paul Fire & Marine Insurance Company, and St. Paul Insurance Company of Illinois, Defendants.\\nSupreme Court\\nNo. 2004AP36.\\nOral argument March 2, 2006.\\nDecided July 7, 2006.\\n2006 WI 87\\n(Also reported in 716 N.W.2d 807.)\\nFor the defendant-appellant there were briefs by John C. Thomure, Jr., Timothy M. Hansen, Jonathan C. Wertz, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Timothy M. Hansen and Jonathan C. Wertz.\\nFor the plaintiff-respondent, there was a brief by Michael J. Jassak, Kristin M. Cafferty, Racine, James P. Martin, Lake Geneva, and Habush Habush & Rottier, S.C., and oral argument by Kristin M. Cafferty.\", \"word_count\": \"7579\", \"char_count\": \"46310\", \"text\": \"DAVID T. PROSSER, J.\\n\\u00b6 1. This case is before the court on certification by the court of appeals pursuant to Wis. Stat. (Rule) \\u00a7 809.61 (2003-04). It addresses the relationship between the restitution order in a criminal case and a subsequent settlement agreement in a civil case. The Walworth County Circuit Court, John R. Race, Judge, dismissed Robert Vlazny's (Vlazny) motion to enforce a settlement agreement to preclude Theresa Huml (Huml) from enforcing a judgment derived from a criminal restitution order, after Vlazny was released from probation.\\n\\u00b6 2. We are presented with two issues. First, may a civil settlement agreement between a crime/tort victim and a criminal defendant/tortfeasor preclude the victim from collecting unpaid restitution that the defendant was ordered to pay in the criminal proceeding, after the defendant's probation ends and the unpaid restitution is reduced to a civil judgment pursuant to Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(lr)? Second, did the settlement agreement between Theresa Huml and Robert Vlazny preclude Huml from enforcing the civil judgment derived from the restitution order?\\n\\u00b6 3. Vlazny argues that Wis. Stat. \\u00a7 973.09(3)(b) requires a court to enter a civil judgment for the amount of unpaid restitution when probation ends. When this occurs, he contends, an existing settlement agreement between the defendant and the victim may preclude the victim from enforcing the judgment. He claims that his settlement agreement with Huml bars her from enforcing the judgment.\\n\\u00b6 4. Huml responds that Vlazny's position is contrary to Wis. Stat. \\u00a7 973.20(lr), which provides that after probation terminates, unpaid restitution \\\"is enforceable in the same manner as a judgment in a civil action by the victim[.]\\\" She contends that the phrase \\\"in the same manner as a civil judgment\\\" indicates that it is not a civil judgment. Huml reasons that her interpretation is consistent with the notion that a restitution judgment is criminal in nature and should not be extinguished by a civil settlement agreement. Therefore, Huml concludes, her settlement agreement with Vlazny cannot preclude her from enforcing the restitution order once it is reduced to a judgment.\\n\\u00b6 5. We conclude that a civil settlement agreement can have no effect upon a restitution order while the defendant remains on probation, unless the circuit court finds that enforcing the restitution order in addition to the settlement agreement would result in a double recovery for the victim. After a defendant is released from probation, however, and any unpaid restitution under the restitution order is converted to a civil judgment, a settlement agreement between the victim and defendant may \\u2014 depending upon its terms \\u2014preclude the victim from enforcing the judgment. We conclude that the global settlement agreement that Huml entered into with Vlazny precludes her from enforcing the judgment converted from the restitution order.\\n\\u00b6 6. Accordingly, we reverse the judgment of the circuit court.\\nI. BACKGROUND\\n\\u00b6 7. On June 20, 1993, Vlazny seriously injured Huml when the automobile he was driving collided head-on with Huml's car. Prior to the accident, Vlazny had been drinking. On November 11,1993, Vlazny was convicted of injury by intoxicated use of a vehicle, in violation of Wis. Stat. \\u00a7 940.25(l)(a). The circuit court sentenced Vlazny to two years imprisonment but stayed the sentence and placed him on three years probation. As a condition of probation, the circuit court initially ordered Vlazny to pay $500,000 in restitution to Huml, Subsequently, the circuit court amended the restitution order after Vlazny and Huml stipulated, pursuant to Wis. Stat. \\u00a7 973.20(13)(c), that restitution should be set at $140,000, payable for the duration of probation in monthly installments of $425.\\n\\u00b6 8. At a January 24, 1994, restitution hearing, Court Commissioner Paul Barrett noted that the parties' agreed-upon restitution schedule would leave the majority of the ordered restitution unpaid at the end of Vlazny's probation. Assistant District Attorney Steven Watson informed the commissioner that Huml planned to initiate a civil suit against Vlazny, and that any restitution payments would be set off in the civil suit.\\n\\u00b6 9. On May 16, 1995, Huml filed a civil action against Vlazny and the insurer of the car he was driving, St. Paul Fire and Marine Insurance Company (St. Paul). Watson, who had left the district attorney's office, represented Huml in her civil suit. Huml settled her suit against Vlazny and St. Paul on December 12, 1996. The settlement agreement provided:\\nThe parties agree that in consideration of the full discharge of past, present and future claims arising out of the allegations set forth in Plaintiffs Amended Complaint..as a result of the alleged actions or omissions of Defendants, Insurer agrees to pay the sum hereinafter specified....\\nThis Settlement Agreement and Release shall apply to all claims, whether known or unknown, on the part of all parties to this Agreement. In consideration of the payments called for herein, Plaintiff completely releases and forever discharges Defendants, Insurer, and their agents... from any or all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, including court costs, legal expenses and attorneys' fees which the undersigned now has or had or which may hereafter accrue on account of or in any way arising out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries . resulting from the accident, casualty or event fisted in Plaintiffs Amended Complaint. (Emphasis added.)\\nIn exchange for releasing Vlazny and St. Paul, Huml received an initial lump sum payment of $548,000, monthly payments for the rest of her life in increasing amounts, and larger periodic payments paid on average every 16 to 18 months.\\n\\u00b6 10. Meanwhile, Vlazny remained on probation. Because his restitution payments were sporadic, his probation was twice extended by the court. In August 2002, more than eight years after Vlazny was sentenced, his probation agent recommended that Vlazny be released from probation and that the unpaid restitution be reduced to a civil judgment. The circuit court terminated Vlazny's probation in December 2002. He had paid $33,705 to Huml, leaving a balance of $107,900.46. Pursuant to Wis. Stat. \\u00a7 973.09(3)(b), the circuit court entered judgment for Huml against Vlazny for the amount of unpaid restitution.\\n\\u00b6 11. When Huml attempted to enforce the judgment against Vlazny, Vlazny filed a motion in the criminal court to vacate the judgment or reduce it to zero, arguing that the settlement agreement precluded Huml from enforcing the judgment. The criminal court ruled that the matter became a civil matter when the restitution order was reduced to judgment, and it directed Vlazny to proceed in civil court. Accordingly, Vlazny filed a motion to enforce the settlement agreement in civil court.\\n\\u00b6 12. The circuit court denied Vlazny's motion to reduce the judgment to zero, concluding that the settlement agreement had no effect upon Huml's ability to enforce the judgment. Vlazny appealed and the court of appeals certified the following question: \\\"Whether a written settlement agreement and release discharging a defendant from civil liability for all past, present and future claims arising out of his or her criminal conduct precludes the crime victim from enforcing a subsequent judgment for unpaid restitution entered after the defendant has been released from probation.\\\" Huml v. Vlazny, No. 2004AP36, unpublished certification (Wis. Ct. App. Sept. 14, 2005).\\nII. STANDARD OF REVIEW\\n\\u00b6 13. The issue presented requires us to interpret Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(1r), which we do independent of the circuit court's analysis. State v. Sweat, 208 Wis. 2d 409, 414-15, 561 N.W.2d 695 (1997). Additionally, we must review the settlement agreement to determine whether the parties intended it to encompass the restitution judgment. Contract interpretation and whether a contract is ambiguous are both questions of law we review de novo. Wis. Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, \\u00b6 22, 23, 233 Wis. 2d 314, 607 N.W.2d 276.\\nIII. STATUTORY INTERPRETATION\\n\\u00b6 14. In statutory interpretation, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, \\u00b6 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is unambiguous after considering the text of the statute, its context, and any policies evident from the text, our analysis ordinarily stops and we give effect to the intent of the legislature as set forth in the plain language of the statute. Id., \\u00b6 46, 48. In the absence of ambiguity, we do not look to extrinsic sources to ascertain legislative intent, except to bolster the plain meaning interpretation. Id., \\u00b6 51.\\n\\u00b6 15. A statute is ambiguous when it is susceptible to more than one reasonable interpretation. Id., \\u00b6 47. \\\"Ambiguity can be found in the words of the statutory provision itself, or by the words of the provision as they interact with and relate to other provisions in the statute and to other statutes.\\\" Sweat, 208 Wis. 2d at 416. We conclude that when they are juxtaposed, Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(lr) are ambiguous.\\n\\u00b6 16. On one hand, Wis. Stat. \\u00a7 973.09(3)(b) plainly requires a circuit court to inform the probationer that a \\\"civil judgment\\\" will be entered against him for the amount of unpaid restitution. Section 973.09(3)(b) states:\\nIf the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of-circuit court to file and enter the judgment in the judgment and lien docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under s. 806.10. (Emphasis added.)\\nThe statute appears to provide that upon completion of a defendant's probation, the circuit court shall enter a \\\"civil judgment\\\" \\\"for the unpaid restitution,\\\" \\\"unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order.\\\" This judgment has the same force and effect as other judgments for money under Wis. Stat. \\u00a7 806.10. Accordingly, the statute implies that a separate settlement agreement could encompass the judgment derived from the restitution order and could preclude the victim from enforcing the judgment.\\n\\u00b6 17. On the other hand, Wis. Stat. \\u00a7 973.20(lr) suggests a judgment derived from a restitution order retains its nature as restitution, but that the victim may enforce the judgment by using civil enforcement mechanisms (e.g., attachment or garnishment) or by seeking remedial sanctions for contempt. Section 973.20(lr) states: \\\"After the termination of probation, . . . restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.\\\" Based on this statute, a reasonable person might conclude that any unpaid restitution, even when reduced to a judgment, retains its nature as restitution and cannot be bargained away in a settlement agreement.\\n\\u00b6 18. To resolve the ambiguity in the relationship between Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(lr), we look to the broad context of these two statutes.\\n\\u00b6 19. Wisconsin Stat. \\u00a7 973.09 grants a circuit court the authority to impose probation upon a criminal defendant. Probation serves two purposes, to rehabilitate the defendant and to protect society and the public interest. State v. Gray, 225 Wis. 2d 39, 68, 590 N.W.2d 918 (1999); Huggett v. State, 83 Wis. 2d 790, 798, 266 N.W.2d 403 (1978).\\n\\u00b6 20. In furtherance of these dual purposes, Wis. Stat. \\u00a7 973.09(l)(b) requires a court to impose restitution upon any person placed on probation, \\\"unless the court finds there is substantial reason not to order restitution as a condition of probation.\\\" As a condition of probation, restitution tends to promote rehabilitation by \\\"strengthening the individual's sense of responsibility.\\\" Huggett, 83 Wis. 2d at 798. Restitution makes at least some of the injury inflicted upon the victim tangible to the defendant. The primary purpose of restitution, however, is to compensate the victim, thereby advancing society's interest in seeing victims made whole. See Sweat, 208 Wis. 2d at 422; Huggett, 83 Wis. 2d at 798; State v. Canady, 2000 WI App 87, \\u00b6 8, 234 Wis. 2d 261, 610 N.W.2d 147.\\n\\u00b6 21. The link between Wis. Stat. \\u00a7 973.09 and 973.20 appears in \\u00a7 973.09(l)(b), which contains a cross-reference to \\u00a7 973.20. Section 973.20 dictates the requirements and limitations of restitution orders.\\n\\u00b6 22. An overview of Wis. Stat. \\u00a7 973.09 and 973.20 reveals that a fundamental policy of these statutes is to make victims whole without allowing them to receive double recoveries. To achieve this result, the statutes afford three opportunities to avoid double recovery. First, a defendant may assert any defense, including accord and satisfaction or setoff, in the sentencing hearing at which the circuit court determines whether to impose restitution. \\u00a7 973.20(14)(b); Sweat, 208 Wis. 2d at 424. Second, before a circuit court reduces any unpaid restitution to a civil judgment, the probationer may prove that the victim has already recovered damages from him that are the same as the damages covered by the restitution order. \\u00a7 973.09(3)(b). Third, in a civil action a defendant may prove that restitution payments set off part or all of a civil judgment in favor of the victim. \\u00a7 973.20(8).\\n\\u00b6 23. The procedural posture of this case does not fit snugly within any of these three scenarios. Huml and Vlazny did not enter into the settlement agreement until after the sentencing court imposed the restitution order. We cannot tell \\u2014 because we do not have the record \\u2014 whether Vlazny had the opportunity to object to the entry of the civil judgment for the $107,900.46 of unpaid restitution. In any event, Vlazny does not seek to set off from the settlement agreement the amount of restitution he paid. Rather, Vlazny claims his settlement agreement with Huml precludes her from enforcing the judgment derived from the unpaid restitution.\\n\\u00b6 24. Because the timing of events in this case does not fit cleanly into the statutory scheme, and because Huml and Vlazny present competing reasonable interpretations, we look to (1) legislative history; (2) relevant case law; and (3) public policy to determine which interpretation best accords with legislative intent.\\nA. Legislative History\\n\\u00b6 25. The relevant portions of Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(lr) are the result of two bills crafted by the Judicial Council, 1987 Assembly Bill 190, enacted as 1987 Wisconsin Act 398, and 1989 Assembly Bill 316, enacted as 1989 Wisconsin Act 188, \\u00a7 1 and 2. Included in 1987 Wisconsin Act 398 are Judicial Council notes that explain the changes made by the Act.\\n\\u00b6 26. Three notes are of interest. The first, the Judicial Council Prefatory Note, summarizes the changes to the then-existing law, and states that the Act \\\"allows unpaid restitution to be enforced by the victim as a civil judgment when the offender is released from probation .\\\" 1987 Wis. Act 398 (emphasis added).\\n\\u00b6 27. The second Judicial Council note elaborates on this point, stating:\\nThe availability of a civil judgment for unpaid restitution enforceable by the victim under s. 973.20(1), stats., substantially reduces the necessity of extending probation solely for the purpose of enforcing court-ordered payments, a practice of questionable cost-effectiveness, [citation omitted] Probation may, however, be extended upon stipulation of the defendant, to enforce community service in satisfaction of restitution, or when the probationer has not made a good faith effort to make restitution or other payments.\\nJudicial Council Committee Note, 1987, Wis. Stat. \\u00a7 973.09 (emphasis added).\\n\\u00b6 28. The third relevant Judicial Council note states that Wis. Stat. \\u00a7 973.20 \\\"allows restitution unpaid at the time probation or parole supervision terminates to be enforced by the victim as a judgment creditor.\\\" Judicial Council Committee Note, 1987, Wis. Stat. \\u00a7 973.20 (emphasis added). These Judicial Council notes demonstrate a legislative intent that unpaid restitution be converted to a civil judgment upon the termination of probation.\\n\\u00b6 29. Governor Tommy Thompson vetoed the language in 1987 Assembly Bill 190 that would have converted a restitution order into a civil judgment. Gov. Tommy Thompson, Veto Message to Assembly Bill 190 (available at Legislative Reference Bureau, Madi son, Wisconsin). In his veto message, Governor Thompson explained that he vetoed these provisions because they raised constitutional concerns. Id. Specifically, Governor Thompson objected to the fact the bill would have allowed a civil judgment to be entered without a separate trial to establish the propriety of restitution or its amount. Id.\\n\\u00b6 30. The effect of Governor Thompson's veto was to perpetuate the practice of requiring crime victims to whom restitution was owed to institute separate civil actions to collect any unpaid restitution once a defendant was released from probation. See Legislative Reference Bureau Drafting File for 1989 Wis. Act 188, Analysis by the Legislative Reference Bureau of 1989 Assembly Bill 316.\\n\\u00b6 31. In response to the veto, the Judicial Council sponsored 1989 Assembly Bill 316, which contained language nearly identical to that which was vetoed by the Governor. In a memo to the Senate Judiciary and Consumer Affairs Committee, James Fullin, Executive Secretary of the Judicial Council and the Reporter for the Judicial Council Restitution Committee, explained that (1) the proposal to allow a circuit court \\\"to enter a civil judgment for unpaid restitution\\\" was modeled on federal law, the Victim and Witness Protection Act of 1982 CVWPA); and (2) at least six federal circuits had upheld the analogous federal provision against constitutional challenges. Memorandum from James Fullin to Senate Judiciary and Consumer Affairs Committee (Jan. 9, 1990) (available at the Wisconsin State Law Library). On April 10,1990,1989 Assembly Bill 316 was enacted as 1989 Wisconsin Act 188, creating the language at issue in this case. Thus, although the three above-described Legislative Council notes were part of 1987 Wisconsin Act 398, they apply with equal force to explain 1989 Wisconsin Act 188.\\n\\u00b6 32. In addition to the Judicial Council notes, the analysis of 1989 Assembly Bill 316 by the Legislative Reference Bureau, which is printed on the bill, stated:\\nUnder present law, if a probationer or parolee does not pay the court-ordered restitution in full prior to termination of the probation or parole, or if a defendant not placed on probation or parole fails to pay the court-ordered restitution, the victim may start a civil action to collect any unpaid restitution. The victim may start a civil action, obtain a judgment for the unpaid restitution, and proceed with collection procedures on the judgment. Under this bill, restitution unpaid at the end of a probation or parole period is docketed as a civil judgment if the victim has not already obtained a judgment for the damages covered by the restitution order.\\nLegislative Reference Bureau Drafting File for 1989 Wis. Act 188, Analysis by the Legislative Reference Bureau of 1989 Assembly Bill 316 (emphasis added).\\n\\u00b6 33. The legislative history, therefore, demonstrates that the drafters \\u2014 and, in turn, the legislature \\u2014intended a restitution order to become a civil judgment upon the completion of probation. The changes effected by 1987 Wisconsin Act 398 and 1989 Wisconsin Act 188 streamlined the procedure to reduce unpaid restitution to a civil judgment. Based in part on this underlying history, we conclude the more reasonable interpretation of the phrase \\\"in the same manner as a judgment in a civil action\\\" in Wis. Stat. \\u00a7 973.20(lr) is that the resulting judgment is a civil judgment. The conditional language in the statute may reflect the abbreviated procedure by which the judgment was obtained, but it does not diminish the fact that the judgment is a civil judgment.\\n\\u00b6 34. Simplifying the procedure by which a victim obtains a judgment to enforce unpaid restitution is entirely consistent with the overarching purposes of the legislation: to promote the dignity of crime victims, to maximize the respect afforded victims by the criminal justice system, and to increase the amount of restitution recovered. Allowing a victim to negotiate to extinguish his or her interest in a judgment derived from a restitution order as part of a global settlement is consistent with the legislature's desire to afford respect to the dignity of victims.\\nB. Relevant Case Law\\n1. Wisconsin Case Law\\n\\u00b6 35. The parties focus their analyses on three Wisconsin cases: Sweat; State v. Walters, 224 Wis. 2d 897, 591 N.W.2d 874 (Ct. App. 1999); and Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996). Consequently, a brief summary and discussion of each case is necessary.\\n\\u00b6 36. In Sweat the defendant claimed a civil statute of limitations barred the state from seeking restitution. Sweat, 208 Wis. 2d at 412. The defendant relied upon Wis. Stat. \\u00a7 973.20(14) (b), which states in part, \\\"[t]he defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated.\\\" The court rejected the defendant's argument. Id. at 414. Instead, it interpreted \\u00a7 973.20(14)(b) to mean that in a restitution proceeding a defendant may raise any defense that goes to the amount of restitution, such as mitigation, setoff, or accord and satisfaction. Id. at 424.\\n\\u00b6 37. The availability of accord and satisfaction and setoff as defenses to the amount of restitution a circuit court can order supports the idea that a victim can give up her right to enforce a judgment derived from a restitution order. Of course, a settlement agreement does not necessarily prevent the circuit court from ordering restitution, Walters, 224 Wis. 2d at 905, nor does it necessarily prevent enforcement of a restitution order during the term of probation. Only if a circuit court first finds that enforcement of the restitution order would result in double recovery for the victim can a settlement agreement affect a circuit court's authority to enter or enforce a restitution order while a defendant remains on probation.\\n\\u00b6 38. The court has broad power to require restitution, so long as the restitution serves statutory purposes. Restitution serves the dual purposes of making the victim whole and rehabilitating the defendant. Sweat, 208 Wis. 2d at 423. If a restitution order does not serve both purposes, restitution is not appropriate. Thus, if a settlement agreement fails to make the victim whole \\u2014 as determined independently by the circuit court \\u2014 the court may enter a restitution order and enforce it while the defendant remains on probation. See Herr v. Lanaghan, 2006 WI App 29, \\u00b6 19-20, 289 Wis.2d 440, 710 N.W.2d 496.\\n\\u00b6 39. In Walters the court of appeals held that a civil settlement does not restrict the power of a court to order a defendant to pay restitution after the defendant and victim settle. Walters, 224 Wis. 2d at 899. Like the present case, Walters arose out of an automobile accident for which the defendant was convicted of operating an automobile while intoxicated. Id. The defendant in Walters argued that a civil settlement, which included a release for \\\"all claims and damages\\\" that resulted from the accident, should prevent a circuit court from being able to enter a restitution order. Id. at 899-900. The court of appeals rejected the defendant's contention, explaining that restitution is a remedy that belongs to the State and that \\\"a victim has no independent claim to restitution which he or she can release . . .\\\" Id. at 904-05. Significantly, in Walters, the defendant made no attempt to prove that enforcement of the restitution order would result in a double recovery for the victim. Id. at 899-900. Moreover, unlike the present case, Walters did not address what happens to a restitution order upon the termination of probation.\\n\\u00b6 40. In Olson the court of appeals confronted a sequence of events the reverse of that presented in Walters. In Olson the criminal court entered a restitution order before the parties entered into a settlement agreement. Olson, 202 Wis. 2d at 380. After a subsequent settlement, the victim attempted to enforce the outstanding restitution order. Id. at 380. The court of appeals acknowledged that a civil settlement and a pre-existing restitution order could affect one another. Id. at 383. The court of appeals explained that under Wis. Stat. \\u00a7 973.20(8) restitution payments may offset the amount of a judgment or settlement in a civil action. Id. Before this can occur, however, the party seeking setoff must show that the victim stood to reap a double recovery. Id. The court of appeals concluded that because the defendant had not met this burden, the parties' settlement had no effect upon enforcement of the restitution order. Id. at 383-84.\\n\\u00b6 41. Finally, in a letter to the court that called our attention to supplemental authority, Huml invokes Herr. In Herr the defendant sought to reopen a civil judgment entered pursuant to a settlement agreement to offset it by the amount of the restitution order imposed by the criminal court after the parties had settled. Herr, 710 N.W.2d 496, \\u00b6 6. The court of appeals affirmed the circuit court's decision to reopen the civil judgment, but reversed and remanded the circuit court's decision to grant the defendant the offset. Id., \\u00b6 16. The court of appeals held that before setoff was appropriate, the circuit court first had to determine whether the damages covered in the civil judgment were the same as the special damages covered in the restitution order (i.e., would the result of enforcing both the restitution order and the civil judgment be double recovery). Id., \\u00b6 20.\\n\\u00b6 42. Walters, Olson, and Herr do not address what happens to unpaid restitution upon the completion of probation. Accordingly, we agree with Vlazny that Huml's reliance on these cases is misplaced. We decline Huml's invitation to extend the holdings of these cases \\u2014 that a defendant must prove double recovery before a settlement agreement can affect a restitution order \\u2014 to proceedings after the defendant is released from probation.\\n\\u00b6 43. Huml's position is further undermined by State v. Davis, 127 Wis. 2d 486, 381 N.W.2d 333 (1986). Thelmer Davis was placed on probation for five years and ordered to pay restitution for committing welfare fraud. Id. at 487-88. Three times the circuit court extended Davis's probation because restitution remained unpaid. Id. at 489-491. This court concluded it was inappropriate to extend probation when the only reason to do so was to collect unpaid restitution. Id. at 497-98. We explained the circuit court's decision to extend Davis's probation was an erroneous exercise of discretion because it effectively transformed the criminal justice system into a collection agency \\\"to collect what eventually became no more than a civil debt.\\\" Id. at 499. Davis, therefore, stands for the proposition that once the penal and rehabilitative purposes of restitution have been served, only a civil debt remains. Id.; see also Huggett, 83 Wis. 2d at 803-04.\\n\\u00b6 44. It is true that restitution in a criminal case is a remedy that belongs to the state, not to the victim. Walters, 224 Wis. 2d at 904. Termination of probation, however, signals the state's disavowal of any penal or rehabilitative interests. Cf. State v. Jackson, 128 Wis. 2d 356, 365-66, 382 N.W.2d 429 (1986); Huggett, 83 Wis. 2d at 803-04. Thereafter, only the goal of compensating the victim remains. This is an objective adequately accomplished by entry of a civil judgment, which can be enforced through civil enforcement mechanisms. Consequently, it is consistent with Wisconsin precedent to allow a victim, in anticipation of the defendant completing probation, to release her right to enforce any judgment derived from unpaid restitution as part of a settlement agreement.\\n2. Federal Case Law\\n\\u00b6 45. Wisconsin Stat. \\u00a7 973.20(1r) was based in part on the federal VWPA, specifically 18 U.S.C. \\u00a7 3663(h) (1982 & Supp. IV 1987). See Judicial Council Committee Note, 1987, Wis. Stat. \\u00a7 973.20. Conse quently, Huml relies to a considerable extent upon federal case law interpreting this provision.\\n\\u00b6 46. 18 U.S.C. \\u00a7 3663(h) provided:\\nAn order of restitution may be enforced by the United States in the manner provided in sections 1812 and 1813 or in the same manner as a judgment in a civil action, and by the victim named in the order to receive the restitution in the same manner as a judgment in a civil action.\\nAs the Judicial Council note indicates, the phrase, \\\"in the same manner as a judgment in a civil action []\\\" in Wis. Stat. \\u00a7 973.20(1r) was imported from 18 U.S.C. \\u00a7 3663(h). Despite copying some language from 18 U.S.C. \\u00a7 3663(h), there is a critical difference between Wis. Stat. \\u00a7 973.20(1r) and 18 U.S.C. \\u00a7 3663(h). Unlike the analogous Wisconsin provisions, neither 18 U.S.C. \\u00a7 3663 nor any other section of the VWPA contains a provision that directs a court to enter a judgment against the defendant for any unpaid restitution when probation ends. Consequently, the federal cases cited by Huml merely hold (1) that the availability of civil enforcement mechanisms does not convert a restitution order into a civil judgment; and (2) the existence of a settlement agreement cannot preclude a district court from entering a restitution order. See e.g., Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 703 (2d. Cir. 2000) (\\\"\\u00a7 3663 contained no suggestion that a court may convert a restitution order into a civil judgment or modify a restitution order in a civil suit.\\\"); United States v. Karam, 201 F.3d 320, 328 (4th Cir. 2000); United States v. Timilty, 148 F.3d 1, 4 (1st Cir. 1998); United States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir. 1998); United States v. Johnson, 983 F.2d 216, 220 (11th Cir. 1993); United States v. Cloud, 872 F.2d 846, 854 (9th Cir. 1989); United States v. Satterfield, 743 F.2d 827, 839 (11th Cir. 1984). Contrary to Huml's assertion, because of the differences in statutory language, cases interpreting 18 U.S.C. \\u00a7 3663(h) are of little, if any, assistance in interpreting Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(1r).\\nC. Public Policy\\n\\u00b6 47. Finally, Vlazny's interpretation of Wis. Stat. \\u00a7 973.09(3)(b) and 973.20(lr) is consistent with good public policy. First, there is considerable value in permitting a victim to release her interest in a judgment derived from a restitution order because it allows the victim to settle the case and replace an uncertain, future recovery with a certain, immediate recovery.\\n\\u00b6 48. Second, permitting a release gives a victim an additional source of leverage to negotiate a favorable settlement.\\n\\u00b6 49. Third, there are safeguards to promote the recovery of restitution by victims. On the civil side, in most situations where a substantial dollar amount is at stake, a victim will be represented by an attorney when negotiating a settlement. Preserving the right to enforce a judgment derived from a restitution order, therefore, should be as simple as including an express exception in the settlement agreement. On the criminal side, because probation can be extended if a defendant with the ability to pay fails to make good faith efforts to comply with a restitution order, Huggett, 83 Wis. 2d at 803, there should be little concern that defendants will be able to duck their restitution obligations. Furthermore, if restitution would result in double recovery for the victim, a circuit court can still enter a restitution order, \\\"[i]f justice so requires,\\\" that imposes an obligation upon the defendant to \\\"reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.\\\" Wis. Stat. \\u00a7 973.20(5)(d).\\n\\u00b6 50. For all these reasons, we conclude that a civil settlement agreement can have no effect upon a restitution order while the defendant is on probation unless the circuit court first finds that continued enforcement of the restitution order would result in a double recovery for the victim. After a defendant is released from probation and any unpaid restitution becomes a civil judgment, however, a settlement agreement between the victim and the defendant may preclude the victim from enforcing the judgment.\\nIV INTERPRETATION OF THE SETTLEMENT AGREEMENT\\n\\u00b6 51. Having determined that a settlement agreement can preclude the enforcement of a judgment derived from a restitution order, we consider whether the terms of the settlement agreement between Vlazny and Huml have this effect.\\n\\u00b6 52. The lodestar of contract interpretation is the intent of the parties. Dieter v. Chrysler Corp., 2000 WI 45, \\u00b6 15, 234 Wis. 2d 670, 610 N.W.2d 832. In ascertaining the intent of the parties, contract terms should be given their plain or ordinary meaning. Gold stein v. Lindner, 2002 WI App 122, \\u00b6 12, 254 Wis. 2d 673, 648 N.W.2d 892. If the contract is unambiguous, our attempt to determine the parties' intent ends with the four corners of the contract, without consideration of extrinsic evidence. Id.\\n\\u00b6 53. Vlazny contends the settlement agreement is clear; it bars Huml from enforcing \\\"any or all claims, actions, causes of action, demands, rights, [or] damages,\\\" without any language to exclude judgments derived from unpaid restitution from the scope of the settlement. It discharges \\\"in full\\\" past, present, and future claims. In using such sweeping words as \\\"any,\\\" \\\"all,\\\" and \\\"whatsoever,\\\" the settlement is \\\"global\\\" in its coverage. Huml does not dispute that the breadth of the language in the settlement agreement encompasses her judgment against Vlazny. Rather, she depends upon the argument that a judgment derived from a restitution order retains its nature as restitution and can never be affected by a settlement agreement, unless the defendant establishes that the victim would receive a double recovery.\\n\\u00b6 54. We have already rejected Huml's argument. Once unpaid restitution imposed by a restitution order is reduced to a civil judgment under Wis. Stat. \\u00a7 973.09(3)(b), a settlement agreement may take effect and preclude enforcement of the judgment.\\n\\u00b6 55. We conclude that the global settlement agreement between Huml and Vlazny precludes Huml from enforcing the judgment for $107,900.46. The settlement agreement is a fully integrated contract intended to be the final expression of Huml and Vlazny's agreement. Absent ambiguity, it is improper to consider extrinsic evidence of intent. Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 607, 288 N.W.2d 852 (1980); Wis. End-User Gas Ass'n v. PSC, 218 Wis. 2d 558, 567, 581 N.W.2d 556 (Ct. App. 1998). Because we conclude the plain language of the settlement agreement released all Huml's claims and rights to damages arising from the accident, we will not consider extrinsic evidence of a contrary intent. This settles the issue.\\nV CONCLUSION\\n\\u00b6 56. We conclude that a civil settlement agreement can have no effect upon a restitution order while the defendant remains on probation, unless the circuit court finds that enforcing the restitution order in addition to the settlement agreement would result in a double recovery for the victim. After a defendant is released from probation, however, and any unpaid restitution under the restitution order is converted to a civil judgment, a settlement agreement between the victim and defendant may \\u2014 depending upon its terms \\u2014preclude the victim from enforcing the judgment. We conclude that the global settlement agreement that Huml entered into with Vlazny precludes her from enforcing the judgment converted from the restitution order.\\nBy the Court. \\u2014 The judgment of the circuit court is reversed.\\nAll references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.\\nIn addition, Vlazny served 361 days in the Walworth County Jail in connection with the crime.\\nHad Vlazny remained on probation for three years, he would have paid to Huml a total of $15,300.\\nFor instance, Wis. Stat. \\u00a7 973.20 prescribes: (a) how to value the amount of restitution depending on the nature of the crime, \\u00a7 973.20(2) to (4m); (b) what types of damages may be included in a restitution order, \\u00a7 973.20(5); (c) to whom resti tution must be paid and in what sequence, \\u00a7 973.20(5)(d), (6), (7), and (9); and (d) when and how restitution payments are made, \\u00a7 973.20(10) to (12).\\nWisconsin Stat. \\u00a7 973.09(3)(b) requires the sentencing court to \\\"hold a probation review hearing prior to the expiration date [of probation], unless the hearing is voluntarily waived by the probationer .\\\" If the probation review hearing is waived, the sentencing court must issue a judgment for the unpaid restitution. If the review hearing is not waived, the court must issue a judgment for the unpaid restitution \\\"unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order.\\\" We do not know if the sentencing court complied with either alternative before reducing the $107,900.46 to judgment.\\nDespite paying $33,705 in restitution to Huml, Vlazny has not sought to recover this amount by arguing that it should be set off against the amount Huml recovered under the settlement agreement.\\nGovernor Thompson vetoed the following language from what would have been Wis. Stat. \\u00a7 973.09(3)(b):\\nIf the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk to file and docket a transcript of the judgment, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. The clerk shall send a copy of the judgment to the victim. The judgment has the same force and effect as judgments docketed under ss. 806.10 and 809.25.\\n1987 Wis. Act 398, \\u00a7 37.\\nLikewise, Governor Thompson vetoed the stricken text in what would have been Wis. Stat. \\u00a7 973.20(1): \\\"After the termination of probation ., restitution ordered under this section is enforceable in the same-manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.\\\" Id., \\u00a7 43.\\nThe relevant portion of the YWPA stated: \\\"An order of restitution may be enforced... by the victim named in the order to receive the restitution in the same manner as a judgment in a civil action.\\\" 18 U.S.C. \\u00a7 3663(h) (1982 & Supp. IV 1987) (emphasis added). This provision was initially codified at 18 U.S.C. \\u00a7 3579(h) (1982). See Victim and Witness Protection Act of 1982, Pub. L. No. 97-291 \\u00a7 5.\\n\\\"Accord and satisfaction\\\" means \\\"[a]n agreement to substitute for an existing debt some alternative form of discharging that debt, coupled with the actual discharge of the debt by the substituted performance.\\\" Black's Law Dictionary 17 (7th ed. 1999).\\nAccord and satisfaction \\\"bars further liability when ain offer of performance in exchange for full satisfaction of a disputed claim is accepted and the promised performance occurs.\\\" State v. Walters, 224 Wis. 2d 897, 904, 591 N.W.2d 874 (Ct. App. 1999).\\nThe settlement agreement in Olson was much narrower than that agreed to by Huml and Vlazny. It provided: \\\"That the Complaint of Kaprelian, and each of the causes of action contained therein, whether pleaded or not, may be dismissed upon the merits, with prejudice, without costs and without further notice.\\\" Olson v. Kaprelian, 202 Wis. 2d 377, 380, 550 N.W.2d 712 (Ct. App. 1996).\\nA restitution order is limited to special damages. Wis. Stat. \\u00a7 973.20(5)(a). Special damages mean \\\"any readily ascertainable pecuniary expenditure paid out because of the crime.\\\" State v. Johnson, 2005 WI App 201, \\u00b6 12, 287 Wis. 2d 381 704 N.W.2d 625 (interpreting \\u00a7 973.20(5)). General damages, such as pain and suffering, may not be imposed as part of a criminal restitution order. State v. Behnke, 203 Wis. 2d 43, 60-61, 553 N.W.2d 265 (Ct. App. 1996).\\nAll references to 18 U.S.C. \\u00a7 3663(h) are to the 1982 edition of the United States Code as updated by Supplement IV in 1987.\\n\\\"It is well established that federal cases may provide persuasive guidance to the proper application of state law copied from federal law.\\\" State v. Gudenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225 (1995); see State v. Szarkowitz, 157 Wis. 2d 740, 751-52, 460 N.W.2d 819 (Ct. App. 1990) (also noting that Wis. Stat. \\u00a7 973.20 is modeled on the VWPA).\"}"

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+"{\"id\": \"8461254\", \"name\": \"Daniel Steinbach, Cynthia Steinbach, Chuck Rhein, Mary Rhein, Hugh Zwieg, Pamela Zwieg, Steve Kennedy, Karen Kennedy, Linus Schoepp, Donna Schoepp, Bob Van Metre, Barbara Van Metre, Jack Johnson, Beth Johnson, Leonard M. Teifeld, Anna Styka-Teifeld, Steve Swokowski, Julie Olson, Stout Krug Krug & Ryan, Gary Flatland, Peggy Flatland, John Waggoner, Karen Waggoner, William Bohnen, Linda Bohnen, Robert Connolly, Lynn Connolly, Bob Drisner, Ellen Drisner, John Tennyck, Art Krug, Dewi Krug, Carol Tennyck, Alan Ruud, and Susan Ruud, Petitioners-Respondents-Petitioners, v. Green Lake Sanitary District, Respondent-Appellant\", \"name_abbreviation\": \"Steinbach v. Green Lake Sanitary District\", \"decision_date\": \"2006-06-06\", \"docket_number\": \"No. 2003AP2245\", \"first_page\": \"11\", \"last_page\": \"48\", \"citations\": \"291 Wis. 2d 11\", \"volume\": \"291\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:54:03.484150+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daniel Steinbach, Cynthia Steinbach, Chuck Rhein, Mary Rhein, Hugh Zwieg, Pamela Zwieg, Steve Kennedy, Karen Kennedy, Linus Schoepp, Donna Schoepp, Bob Van Metre, Barbara Van Metre, Jack Johnson, Beth Johnson, Leonard M. Teifeld, Anna Styka-Teifeld, Steve Swokowski, Julie Olson, Stout Krug Krug & Ryan, Gary Flatland, Peggy Flatland, John Waggoner, Karen Waggoner, William Bohnen, Linda Bohnen, Robert Connolly, Lynn Connolly, Bob Drisner, Ellen Drisner, John Tennyck, Art Krug, Dewi Krug, Carol Tennyck, Alan Ruud, and Susan Ruud, Petitioners-Respondents-Petitioners, v. Green Lake Sanitary District, Respondent-Appellant.\", \"head_matter\": \"Daniel Steinbach, Cynthia Steinbach, Chuck Rhein, Mary Rhein, Hugh Zwieg, Pamela Zwieg, Steve Kennedy, Karen Kennedy, Linus Schoepp, Donna Schoepp, Bob Van Metre, Barbara Van Metre, Jack Johnson, Beth Johnson, Leonard M. Teifeld, Anna Styka-Teifeld, Steve Swokowski, Julie Olson, Stout Krug Krug & Ryan, Gary Flatland, Peggy Flatland, John Waggoner, Karen Waggoner, William Bohnen, Linda Bohnen, Robert Connolly, Lynn Connolly, Bob Drisner, Ellen Drisner, John Tennyck, Art Krug, Dewi Krug, Carol Tennyck, Alan Ruud, and Susan Ruud, Petitioners-Respondents-Petitioners, v. Green Lake Sanitary District, Respondent-Appellant.\\nSupreme Court\\nNo. 2003AP2245.\\nOral argument October 6, 2005.\\nDecided June 6, 2006.\\n2006 WI 63\\n(Also reported in 715 N.W.2d 195.)\\nFor the petitioners-respondents-petitioners there were briefs by Steven R. Sorenson and Sorenson Koenig Law Office, Ripon; and Kent A. Tess-Mattner and Schmidt Rupke Tess-Mattner & Fox, S.C., Brookfield, and oral argument by Steven R. Sorenson and Kent A. Tess-Mattner.\\nFor the respondent-appellant there were briefs by William R O'Connor, Mary Beth Peranteau and Wheeler, Van Sickle & Anderson, S.C., Madison, and oral argument by William P. O'Connor.\\nAn amicus curiae brief was filed by Debra P Conrad and Thomas D. Larson, Madison, on behalf of the Wisconsin Realtors Association.\", \"word_count\": \"9036\", \"char_count\": \"54916\", \"text\": \"PATIENCE DRAKE ROGGENSACK, J.\\n\\u00b6 1. This case requires us to decide whether a special assessment levied against 18 condominium owners (Petitioners) by the Green Lake Sanitary District (the District) to finance a sanitary sewer system was reasonable. We conclude that the sewer system benefited the Petitioners' property. However, we also conclude that one portion of the assessment, the availability charge, lacked a reasonable basis because: (1) there is no nexus between the availability charge assessed against the Petitioners and the District's recovery of \\\"the capital cost to [it] to provide sanitary sewer service to individual lots, including the installation of a lateral stub from the sewer main to each lot\\\"; (2) other lots that have multiple habitable units and were provided the same sewer service through one four-inch stub, as were the Petitioners, were assessed only one availability charge; and (3) there is no showing that the Petitioners received a greater benefit than was provided to other lots that were affected by the sewer extension. Therefore, the availability charge was not levied uniformly and imposed an inequitable cost burden on the Petitioners as compared with the benefit accruing to them and to all benefited properties. Accordingly, we reverse the court of appeals decision and remand to the circuit court.\\nI. BACKGROUND\\n\\u00b6 2. The Petitioners are the owners of residential condominium units in the Sunrise Point Resort & Yacht Club Condominium (the condominiums), an 18-unit condominium on Big Green Lake. The District is a town sanitary district organized under Subchapter IX of Wis. Stat. ch. 60. The District operates a wastewater treatment plant and a sanitary sewer collection system serving a portion of the lands within its boundaries. The treatment plant and initial sewer collection lines were constructed in the early 1990s and extended several times thereafter. They were financed by special assessments levied against owners of property served by the system.\\n\\u00b6 3. The District is governed by an elected, three-member board of commissioners (Commissioners) that, pursuant to Wis. Stat. \\u00a7 60.77(4) (2003-04), has the authority to project, plan, construct, and maintain a water, solid waste, and sewage system. In June, 2000, the Commissioners adopted a resolution to extend sanitary sewer service to additional lands within the District through the exercise of its special assessment powers under \\u00a7 60.77(5)(f). The expansion plan included the condominiums.\\n\\u00b6 4. The District issued a Special Assessment Report that included the expansion plan and specifications for the proposed sewer extension, an estimation of the project costs and a schedule of assessments against the properties to be served by the planned sewer improvements. It allocated special assessments to all properties included in the plan. The special assessments included two components: an \\\"availability assessment,\\\" to cover the costs of making the sewer available to each lot in the plan, and a \\\"connection assessment\\\" to cover the costs of the infrastructure necessary for transportation of sewage to the treatment plant.\\n\\u00b6 5. The availability charge, $4,730, was levied against each lot or parcel of record receiving sewer service to recover the capital cost of the installation, including the installation of one four-inch pipe stub connecting the sewer main to the property edge of each lot. The connection charge, $5,930, was individually levied against every habitable unit on a lot and every structure connected to the sewer system on any lot that did not include a habitable building. Each Petitioner was assessed fully for both charges, even though the single lot on which all of the condominiums stand was provided with only one four-inch stub.\\n\\u00b6 6. Pursuant to Wis. Stat. \\u00a7 66.0703(12)(a), the Petitioners requested circuit court review of the District's levy of the special assessments and the District's inclusion of the condominiums in the extension of the sewage district. However, before briefing and oral arguments, the Petitioners informed the circuit court and the District that they were abandoning the claim relating to the inclusion of the condominiums in the expansion plan. The amount of the assessment remained in dispute.\\n\\u00b6 7. The Petitioners alleged that the District's method for levying the assessments against them was unfair, arbitrary, and capricious, and in violation of Wis. Stat. \\u00a7 66.0703 and the District's own assessment policy as set forth in the Resolution. The circuit court determined that the availability portion of the special assessment levied against the condominiums was not in accord with that levied on other properties similarly situated, and was therefore \\\"incorrect.\\\"\\n\\u00b6 8. In reaching this conclusion, the court noted that the Petitioners' aggregate property is listed by the Register of Deeds as one lot, although the individual condominium units are separate tax parcels, and that the District's Resolution levied one availability charge against each lot connected to the sewer main. The court also pointed out that the District installed only one stub to the Petitioners' property for connection to the sewer main. It ordered the District to reduce the availability charge of the assessment against each condominium unit to one-eighteenth (1/18) of the original $4,730 charge, or $263. This distributed one availability charge among the 18 Petitioners, whose single lot had been provided one four-inch stub. The court left the connection charge intact.\\n\\u00b6 9. The District appealed, and the court of appeals reversed, holding that the District's exercise of police power had been according to an accepted method of assessment, was not clearly unreasonable, and did not warrant interference by the courts. It ordered the availability charge reinstated as originally assessed by the District. It is that decision that we review.\\nII. DISCUSSION A. Standard of Review\\n\\u00b6 10. The circuit court's determination that specially assessed property was benefited is a question of fact. Village of Egg Harbor v. Sarkis, 166 Wis. 2d 5, 14, 479 N.W.2d 536 (Ct. App. 1991). We affirm factual determinations unless they are clearly erroneous. Lac La Belle Golf Club v. Village of Lac La Belle, 187 Wis. 2d 274, 281-82, 522 N.W.2d 277 (Ct. App. 1994).\\n\\u00b6 11. Whether the facts relating to a special assessment made pursuant to the police power fulfill the \\\"reasonableness\\\" standard is a question of law that we review de novo. Id. at 281. For purposes of judicial review of the exercise of a police power special assessment, the law presumes that the municipality proceeded reasonably in making the assessment, and the challenger hears the burden of going forward to establish prima facie evidence that the assessment was not reasonable. Id. at 281 (citing Peterson v. City of New Berlin, 154 Wis. 2d 365, 371, 453 N.W.2d 177 (Ct. App. 1990)); see also Soo Line R.R. Co. v. City of Neenah, 64 Wis. 2d 665, 671, 221 N.W.2d 907 (1974). However, once a challenger does so, the burden shifts to the entity levying the assessment \\\"to show that the chosen assessment method comported with the statutory requirement that it\\\" produce a reasonable assessment. Lac La Belle, 187 Wis. 2d at 281 (citing Peterson, 154 Wis. 2d at 371).\\nB. Special Assessment Statute\\n\\u00b6 12. The District levied the special assessment under the authority granted in Wis. Stat. \\u00a7 66.0703. Wis. Stat. \\u00a7 60.77(5)(f). The meaning of \\u00a7 66.0703 is not in dispute; however, we must determine whether the District's assessments met the statutory standard, as interpreted in prior court decisions. Section 66.0703 states, in pertinent part:\\n(l)(a) Except as provided in s. 66.0721, as a complete alternative to all other methods provided by law, any city, town or village may, by resolution of its governing body, levy and collect special assessments -upon property in a limited and determinable area for special benefits conferred upon the property by any municipal work or improvement; and may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of the special assessments.\\n(b) The amount assessed against any property for any work or improvement which does not represent an exercise of the police power may not exceed the value of the benefits accruing to the property. If an assessment represents an exercise of the police power, the assessment shall be upon a reasonable basis as determined by the governing body of the city, town or village.\\nThe Petitioners contend that the assessment does not meet the requirement of \\u00a7 66.0703(1)(b) because the District failed to assess them on a reasonable basis. Their arguments are based on common law interpretations of \\u00a7 66.0703 that we review to guide our analysis of the parties' arguments.\\nC. Common Law Requirements\\n\\u00b6 13. We have held that the power of a municipality to levy special assessments against private owners is statutory, and therefore the statutory provisions must be followed if the assessment is to be upheld. See Green Tree Estates, Inc. v. Furstenberg, 21 Wis. 2d 193, 124 N.W.2d 90 (1963). Special assessments may be based on the taxing power or on the police power. Berkvam v. City of Glendale, 79 Wis. 2d 279, 282-83, 255 N.W.2d 521 (1977). If an assessment is made under the taxing power, the municipality must show that the amount charged to the property does not exceed the value of the benefits received. Id. at 282. However, when an assessment is made under the police power, it is not limited to the value of the benefits received by the property owner. Id. at 283 (citation omitted). Rather, when the police power is used, the assessment must be made on a reasonable basis. Id. at 287. It is the police power that the District employed here.\\n\\u00b6 14. In Berkvam, we addressed the statutory-requirements under Wis. Stat. \\u00a7 66.60, the predecessor to Wis. Stat. \\u00a7 66.0703. Berkvam involved a challenge of an assessment for improvements, including storm sewers, concrete curbs, gutters, pavement, and sidewalks, made by the city. Berkvam claimed that the increased traffic volume in the area that would result from the city's planned improvement would decrease the value of the residential property in the area and therefore the assessment was an inequitable and invalid exercise of police power. Id. at 282.\\n\\u00b6 15. We held that while the legislature did not prescribe a particular method for assessing properties under the police power, it required two things: (1) that the property assessed be benefited and (2) that the assessment be reasonable. Id. at 287. We utilized another state's precedent to elaborate:\\nAs one state supreme court has stated, referring to an assessment statute: \\\"[T]he statute does [not] prescribe a specific method for apportioning costs. Where such is the case, the municipality may adopt any plan that is fair and equitable and such that will bring about an assessment in proportion to the benefits accruing.\\\"\\nId. at 287 (citing Mullins v. City of El Dorado, 200 Kan. 336, 436 P.2d 837, 844 (1968)).\\n1. Benefit\\n\\u00b6 16. The Petitioners first assert that the \\\"benefit\\\" requirement for special assessments was not met. They argue that the extension of sewer services to their property provided no benefit to them because the property had no need. At the time that the District made its expansion plans, the condominiums were adequately serviced by a holding tank that was in good working order and was expected to service the condominiums for years to come. They dispute that a sewer connection is a per se benefit. They also contend that while it may be a benefit to some properties covered by the expansion plan, their own specific parcels did not benefit and may have been harmed because of the potential negative effect the added expense of the assessment might have on property values.\\n\\u00b6 17. The District points out that private holding tanks do not provide the benefits afforded by public sewers, and it cites the circuit court's observation that the 14-year-old holding tank on the Petitioners' property could function now but fail in the near future. The circuit court recognized that future benefits may be considered in sustaining the validity of a special assessment. Wm. H. Heinemann Creameries, Inc. v. Village of Kewaskum, 275 Wis. 636, 641, 82 N.W.2d 902 (1957); CIT Group/Equip. Fin., Inc. v. Village of Germantown, 163 Wis. 2d 426, 436, 471 N.W.2d 610 (Ct. App. 1991).\\n\\u00b6 18. To support its position, the District notes the dangers of disease and pollution when a holding tank fails, the impracticably of excluding select properties from an extended sewer system area, and the way that sewer systems have been shown to increase property values. It also points out that Wisconsin courts have consistently recognized the benefits of sanitary sewers, even when the property is already served by a functioning system. See Fort Howard Paper Co. v. Fox River Heights Sanitary Dist., 250 Wis. 145, 153, 156, 26 N.W.2d 661 (1947); Town of Sugar Creek v. City of Elkhorn, 231 Wis. 2d 473, 484, 605 N.W.2d 274 (Ct. App. 1999).\\n\\u00b6 19. Whether a benefit exists is a question of fact. Preloznik v. City of Madison, 113 Wis. 2d 112, 118, 334 N.W.2d 580 (Ct. App. 1983). In this regard, the circuit court agreed with the District's position and found that the sewer system benefited the Petitioners' property. That finding is not clearly erroneous.\\n2. Reasonableness\\n\\u00b6 20. The analysis for whether a special assessment is \\\"reasonable\\\" has been articulated in a number of ways, depending on the facts of the particular case. For example, while it is true that a property must be benefited by the project for whose costs a special assessment was made, Berkvam, 79 Wis. 2d at 287, an assessment need not be limited to the actual benefit to an individual property. Gelhaus & Brost, Inc. v. City of Medford, 144 Wis. 2d 48, 50, 423 N.W.2d 180 (Ct. App. 1988). Rather, the assessment of an individual property must be in proportion to the benefits accruing to it when compared with the benefits accruing to all benefited properties. Id. at 52; see also Peterson, 154 Wis. 2d at 372-73.\\n\\u00b6 21. In Gelhaus, the court of appeals rejected property owners' challenge to a city's special assessments, which contended that the assessments exceeded the benefits to their properties from the public improvement. Gelhaus, 144 Wis. 2d at 52. The court held that assessments made under the police power are not limited to the value of the benefits conferred on each individual property; but rather, the reasonableness of a special assessment will be upheld when properties are benefited and assessments are based on an equitable distribution of costs for the benefits gained. Id. The court explained:\\n[ I]nherent in the requirement that the assessment be made on a reasonable basis is that it must be reasonable and apportioned fairly and equitably among the property owners. For example, in making an assessment, the municipality may not assess one group of property owners by a method that is completely different from the method used to assess another group of property owners, resulting in an entirely disproportionate distribution of costs among various taxpayers.\\nId. (citing Schulenberg v. City of Reading, 410 P.2d 324, 329 (Kan. 1966)). Because the municipality had presented unrebutted affidavits that outlined logical and formulaic cost assessments, and demonstrated that the burden had been fairly and equitably distributed among the individual property owners who benefited, the court concluded that the assessments were reasonable. Gelhaus, 144 Wis. 2d. at 53.\\n\\u00b6 22. Furthermore, although a uniform method of assessment will usually produce a reasonable assessment, that is not necessarily so. In Lac La Belle, a golf course protested its special assessment for the construction of a sanitary sewer collection system. Lac La Belle, 187 Wis. 2d at 279. There, the Village selected an assessment method where each Residential Equivalent Unit (REU), a term defined in the resolution, would be assessed $6,900. Id. at 278. Two portions of the golf club were affected by the sewer project, one of which was the 14th hole that under the Village's definition was comprised of ten REU's. Id. at 280. The golf club contended that in order to realize on the benefit conferred, it would have to subdivide the 14th hole and expend an amount of money that was not economically feasible. Id. at 279. In concluding that the uniform method chosen by the Village did not produce a reasonable assessment, the co\\u00fart explained that in levying an assessment the municipality must take into account the uniqueness, not only the similarity, of the subject property, as its characteristics are compared to other assessed properties. Id. at 286.\\n\\u00b6 23. This uniformity/uniqueness assessment also figured prominently in the court of appeals' decision in Genrich v. City of Rice Lake, 2003 WI App 255, 268 Wis. 2d 233, 673 N.W.2d 361. There, the court used a uniformity/uniqueness analysis to examine whether the special assessments were reasonable. Id., \\u00b6 20-21 (citing Lac La Belle, 187 Wis. 2d at 285-86 and Peterson, 154 Wis. 2d at 373). As currently articulated, this analysis has two steps. First, uniformity is examined to determine whether the assessment is fairly and equitably apportioned among property owners in comparable positions. Genrich, 268 Wis. 2d 233, \\u00b6 20-21. To pass the uniformity requirement, a municipality must use a method of assessment that yields a \\\"uniform and equal value for all affected properties.\\\" Genrich, 268 Wis. 2d 233, \\u00b6 21 (citing Lac La Belle, 187 Wis. 2d at 285). Second, in addition to providing uniformity, assessments must not affect unique properties in a disproportionate way. Genrich, 268 Wis. 2d 233, \\u00b6 20. To determine whether a unique property is assessed in proportion to the benefit conferred, courts have considered the \\\"degree, effect, and consequences of the special benefits.\\\" Id., \\u00b6 22; see also Lac La Belle, 187 Wis. 2d at 284-88.\\n3. Application to Petitioners\\n\\u00b6 24. The District's Resolution at issue here required that the availability charge of the special assess ment be levied \\\"upon each lot, regardless of size, accessibility by public or private road or easement, corner location or other characteristics\\\" to which service is made available. A \\\"lot\\\" is defined as either \\\"a lot of record or a parcel of record.\\\" Accordingly, because each condominium is a \\\"parcel of record,\\\" even though all stand upon one \\\"lot of record,\\\" the condominiums were assessed 18 times an individual availability charge, even though their lot received only one four-inch stub.\\n\\u00b6 25. The Petitioners contend that the District did not appropriately exercise its police power because it did not levy the assessments fairly and equitably among the property owners. The District responds that the assessment was levied uniformly against all single-family residential property owners of record. The Petitioners counter that the District applied the availability charge to each individual condominium owner, yet with other single-lot properties that contain multiple residences, the District levied the availability charge only once. For example, the District applied the availability charge only once to the Southshore Terrace Association, a mobile home park, rather than levying an availability charge against each of its home sites. And, the Pilgrim Center Camp was levied only one availability charge, even though there are many structures on its lot. The District counters that because each condo minium unit created by the condominium declaration and plat is a separate parcel of record, the assessment was reasonably applied.\\n\\u00b6 26. We do not agree with the District for at least three reasons. First, there is no nexus between the charge to an owner of a parcel of record who shares access to the sewer main through one four-inch stub and the District's cost to provide that access. Second, other lots that have multiple habitable units and were provided access to the sewer main through one four-inch stub to the lot were charged only one availability charge. Yet the Petitioners' lot was assessed an availability charge 18 times higher for the same, single four-inch stub. Third, there is no showing that each condominium owner received a greater benefit than was provided to other properties that were affected by the sewer extension. Accordingly, we conclude that the Petitioners have provided prima facie evidence that the availability assessment was not levied uniformly. Therefore, we also conclude that because the costs of extending the sewer were placed disproportionately on the Petitioners, the burden of proving that the assessment was reasonable shifted to the District. See Lac La Belle, 187 Wis. 2d at 281.\\n\\u00b6 27. However, the District's explanation that the condominium units are separate tax parcels does not explain why the purpose of the availability charge under Section III of the Resolution, which specifically refers to the cost for one stub to connect each lot to the sewer main, should not have been uniformly applied to all lots that received one access-stub. The Petitioners' lot received only one stub for all of the condominium units. Further, as we noted above, other single lots that have multiple habitable dwellings that were provided with a single stub, were assessed only a single availability charge. The District has not presented any argument as to why this disparate treatment is a fair or equitable distribution of the costs of making the sewer available, except to assert it applied the same method of assessment to everyone. However, as part of the District's method of assessment, it created a definition for the term, Tot,\\\" that caused the method of assessment to have dissimilar effects on the properties within the District.\\n\\u00b6 28. The District also contends that its method was reasonable because it employed the \\\"lump sum\\\" method, which was upheld in Village of Egg Harbor v. Mariner Group, Inc., 156 Wis. 2d 568, 457 N.W.2d 519 (Ct. App. 1990). In Village of Egg Harbor, the court of appeals determined that the Village's use of the \\\"lump sum\\\" method to levy assessments, which divided the cost of a waste water treatment plant and collection system among property owners without regard to use, was reasonable because: (1) all property owners were assessed in the same way and (2) while use is relevant in other types of assessments, it is not in determining the base rate of implementing the system. Id. at 573. However, the assessment at issue here has a use component, the connection charge, that has not been contested. Also in Village of Egg Harbor, shopping mall owners were \\\"no more burdened\\\" than any other owner. In contrast, the condominium owners who were provided with one four-inch stub to make the sewer avail able to their lot are burdened much more than are the inhabitants of Southshore Terrace, that also were provided with one four-inch stub to make the sewer available to their lot.\\n\\u00b6 29. Wisconsin courts have established that the reasonableness of a particular assessment method depends on the application of its factual consequences to those properties assessed. The court in Peterson concluded that no method is per se reasonable, and that neither procedural fairness nor prolonged use can alone assure reasonableness. Peterson, 154 Wis. 2d at 372-73. A particular method of assessment is neither reasonable nor unreasonable as a matter of law, but rather, the facts of the particular situation govern its reasonableness. Id. at 373; see also Dittberner v. Windsor Sanitary Dist. No. 1, 209 Wis. 2d 478, 496, 564 N.W.2d 341 (Ct. App. 1997).\\n\\u00b6 30. While it is true that methods of assessment may involve many different alternatives, the requirement that the method fairly apportions the costs of the improvement and does not \\\"arbitrarily or capriciously burden any group of property owners\\\" remains a constant for any method chosen. See CIT Group, 163 Wis. 2d at 436-37; see also Lac La Belle, 187 Wis. 2d 282. An assessment is unreasonable if it has an \\\"entirely disproportionate distribution\\\" on a group of property owners that can be avoided by the municipality's use of another assessment methodology. Peterson, 154 Wis. 2d at 373. We conclude that is what occurred here. This assessment was unreasonable because the assessment charge required the Petitioners to bear a disproportionate amount of the costs of the sewer as compared with the benefit they received. Accordingly, we reverse the deci sion of the court of appeals, and remand to the circuit court for the reinstatement of the circuit court order that was reversed by the court of appeals' decision.\\nIII. CONCLUSION\\n\\u00b6 31. In sum, we conclude that the sewer system benefited the Petitioners' property; however, we also conclude that one portion of the assessment, the availability charge, lacked a reasonable basis because: (1) there is no nexus between the availability charge assessed against the Petitioners and the District's recovery of \\\"the capital cost to [it] to provide sanitary sewer service to individual lots, including the installation of a lateral stub from the sewer main to each lot\\\"; (2) other lots that have multiple habitable units and were provided the same sewer service through one four-inch stub, as were the Petitioners, were assessed only one availability charge; and (3) there is no showing that the Petitioners received a greater benefit than was provided to other lots that were affected by the sewer extension. Therefore, the availability charge was not levied uniformly and imposed an inequitable cost burden on the Petitioners as compared with the benefit accruing to them and to all benefited properties. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court.\\nBy the Court. \\u2014 The decision of the court of appeals is reversed and remanded.\\nGreen Lake Sanitary District Amended Resolution No. 97-02, at III, A.\\nWisconsin Stat. \\u00a7 60.77(4) provides in relevant part:\\nGeneral powers and duties. The commission may project, plan, construct and maintain a water, solid waste collection and sewerage system, including drainage improvements, sanitary sewers, surface sewers or storm water sewers, or all of the improvements or activities or any combination of them necessary for the promotion of the public health, comfort, convenience or welfare of the district.\\nAll subsequent references to the Wisconsin statutes are to the 2003-04 version unless otherwise indicated.\\nWisconsin Stat. \\u00a7 60.77(5) provides:\\nSpecific powers. The commission may:\\n(f) Except as provided in s. 66.0721, levy special assessments to finance the activities of the district, using the procedures under s. 66.0703.\\nSection III of the Resolution covers this charge. It states in pertinent part:\\nIII. SEWER SERVICE AVAILABILITY ASSESSMENT. The District shall impose a sewer service availability assessment on property within the sewer service area for costs of the work to make sanitary sewer service available to the property. Each lot assessed under this section shall be provided with a 4-inch lateral pipe stubbed from the sewer main to the property line or easement line, where applicable, except as provided in Section VI.\\nA. ASSESSMENT RATE. The sewer service availability assessment shall be levied upon each lot to which access to sanitary sewer service as provided in accordance with the policies adopted herein. This assessment is intended to recover the capital cost to the District to provide sanitary sewer service to individual lots, including the installation of a lateral stub from the sewer main to each lot, terminating at the property or sewer easement boundary. .\\nB. APPLICATION OF ASSESSMENT. A single sewer availability shall be levied upon each lot, regardless of size, accessibility by public or private road or easement, corner location or other characteristics. . . [I]f it is possible to connect a lateral or private main from an adjacent and contiguous lot or lots to such a terminal point, it shall be assessed a full sewer service availability charge.\\nSection IV of the Resolution addresses this charge. It provides:\\nIV SEWER CONNECTION ASSESSMENT. The District shall impose sewer connection assessments within the sewer service area for costs of the infrastructure necessary for the transportation of sewage to the District's wastewater treatment plant. One sewer connection assessment shall be levied on each habitable building on a lot and on any structure which is connected to the sanitary sewer system on any lot which does not include a habitable building. No sewer connection assessment shall be levied on [an] accessory connection.\\nA. ASSESSMENT RATE. The Sewer Connection Assessment reflects the costs incurred by the District to provide sanitary sewer interceptors, pumping stations, connecting force mains and capacity in that infrastructure for each connected user of the sewer system. The assessment for a single family residence shall he based on 275 gallons of estimated daily wastewater flow. The sewer connection assessment for a single family residence connected to the sanitary sewer system after February 3, 1994 shall be not less than $2300.00 (Two Thousand Three Hundred Dollars) increased by 2.5 percent on February 3 of each year after 1994. All other connections shall be assessed a sewer connection assessment based on the estimated daily flow of wastewater from such habitable building or other connection as determined from Table 12 of Wis. Admin. Code ILHR 83.15(3)(c)2. divided by 275 gallons.\\nB. APPLICATION OF ASSESSMENT. The Sewer Connection Assessment shall be levied on each lot which includes any habitable building or accessory connection to the sanitary sewer system. The assessment to be charged shall be determined in accordance with the requirements of this policy.\\nSpecial Assessment Report, Schedule Assessments (Dec. 8, 2001).\\nId.\\nThe Petitioners did not appeal this determination.\\nFor the purposes of this discussion, the language of the provisions moved from Wis. Stat. \\u00a7 66.60 to Wis. Stat. \\u00a7 66.0703 are the same.\\nGreen Lake Sanitary District Amended Resolution No. 97-02, at III, B.\\nId. at I, A.\\nThe Petitioners represent that SouthShore Terrace Association is \\\"divided into 55 separate cooperative ownership units.\\\" Pet. Br., at 26. This may be so, but we could not confirm from the record whether Southshore Terrace Association is a cooperative.\\nBecause, as we explain below, the District failed to show that the assessment for the availability charge was uniform in method and effect, we do not continue to analyze whether the uniqueness of the condominiums caused the assessment to be unreasonable as well. See Genrich v. City of Rice Lake, 2003 WI App 255, \\u00b6 20-22, 268 Wis. 2d 233, 673 N.W.2d 361.\\nOur decision does not disturb the amounts levied for connection charges.\\nGreen Lake Sanitary District Amended Resolution No. 97-02, at III, A.\"}"

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+"{\"id\": \"8664622\", \"name\": \"(87-CV-257) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. William H. Richards, M.D., Defendant and Third-Party Plaintiff-Respondent Cross Petitioner, Wisconsin Health Care Liability Insurance Plan, Defendant-Respondent; Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants, v. Wisconsin Health Care Liability Insurance Plan, Third-Party Defendant-Respondent; (88-CV-465) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. Mark Hansen, M.D., Defendant-Respondent-Cross Petitioner, Fort Atkinson Memorial Hospital, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants\", \"name_abbreviation\": \"Martin ex rel. Scoptur v. Richards\", \"decision_date\": \"1995-05-04\", \"docket_number\": \"No. 91-0016\", \"first_page\": \"156\", \"last_page\": \"212\", \"citations\": \"192 Wis. 2d 156\", \"volume\": \"192\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:39:38.797796+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"(87-CV-257) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. William H. Richards, M.D., Defendant and Third-Party Plaintiff-Respondent Cross Petitioner, Wisconsin Health Care Liability Insurance Plan, Defendant-Respondent, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants, v. Wisconsin Health Care Liability Insurance Plan, Third-Party Defendant-Respondent. (88-CV-465) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. Mark Hansen, M.D., Defendant-Respondent-Cross Petitioner, Fort Atkinson Memorial Hospital, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants.\", \"head_matter\": \"(87-CV-257) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. William H. Richards, M.D., Defendant and Third-Party Plaintiff-Respondent Cross Petitioner, Wisconsin Health Care Liability Insurance Plan, Defendant-Respondent, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants, v. Wisconsin Health Care Liability Insurance Plan, Third-Party Defendant-Respondent. (88-CV-465) Cheryl Martin, by her Guardian ad Litem, Paul J. Scoptur, Robert Martin and Darlene Martin, Plaintiffs-Appellants-Petitioners, v. Mark Hansen, M.D., Defendant-Respondent-Cross Petitioner, Fort Atkinson Memorial Hospital, Wisconsin Health Care Liability Insurance Plan, Defendants-Respondents, Wisconsin Patients Compensation Fund, Defendant-Respondent Cross-Petitioner, Aetna Life & Casualty Company and Wisconsin Department of Health & Social Services, Defendants-Appellants.\\nSupreme Court\\nNo. 91-0016.\\nOral argument February 1, 1994 and November 8, 1994.\\nDecided May 4, 1995.\\n(Also reported in 531 N.W.2d 70.)\\nFor the plaintiffs-appellants-petitioners there were briefs by Timothy J. Aiken, Kelly L. Centofanti and Aiken & Scoptur, S.C., Milwaukee and oral argument by Timothy J. Aiken.\\nFor the defendant-respondent-cross petitioner there were briefs by Paul R. Erickson, Colleen M. Fleming and Gutglass, Erickson & Bonville, S.C., Milwaukee and oral argument by Paul R. Erickson.\\nFor the defendant and third party plaintiff-respondent cross petitioner and for the defendant-respondent-cross petitioner there were briefs by Timothy J. Strattner, Clare T. Ryan, Linda Vogt Mea- gher and Schellinger & Doyle, S.C., Brookfield and oral argument by Timothy J. Strattner.\\nAmicus curiae brief was filed by Mark L. Thomsen and Cannon & Dunphy, S.C., Brookfield for the Wisconsin Academy of Trial Lawyers.\\nMotion for Reconsideration denied June 20,1995.\", \"word_count\": \"14184\", \"char_count\": \"86906\", \"text\": \"WILLIAM A. BABLITCH, J.\\nCheryl Martin ran into the back of a truck while riding her bicycle. She was taken to the Fort Atkinson Memorial Hospital (FAMH) emergency room suffering from head injuries. The doctor failed to inform her father that a CT scanner was available to diagnose the extent of his daughter's head injuries. Further, the doctor failed to inform her father that if his daughter developed intracranial bleeding, there would be a significant delay in the ability to treat her because she would have to be transferred to a facility in Madison: FAMH did not have a neurosurgeon. A CT scan was not performed; intracranial bleeding developed approximately three hours after admission. Severe and permanent injuries resulted. The issue is whether sec. 448.30, Stats., required Dr. William H. Richards and Dr. Mark Hansen to inform Robert Martin about the availability of the CT scan and the unavailability of a neurosurgeon should intracranial bleeding develop. The court of appeals concluded that Dr. Richards was required to do so, and we agree. Unlike the court of appeals, however, we do not remand for a new trial. We conclude that the failure of the verdict to contain a question on cause with respect to the issue of informed consent was not fatally defective because the parties waived such question. We conclude that the circuit court was correct in determining that sec. 448.30 was inapplicable to Dr. Hansen. Finally, we hold that the retroactive cap on noneconomic damages is unconstitutional and, accordingly, the Martins are entitled to their full award of noneconomic damages.\\nThe underlying facts are as follows (other facts will be included as necessary throughout the opinion). On the evening of July 10,1985, Ms. Martin, then 14 years old, ran into the back of a truck while riding her bicycle in Jefferson, Wisconsin. Ms. Martin was transported to FAMH where she arrived at approximately 10:40 p.m. Dr. Richards was staffing the hospital's emergency room that evening. He examined Ms. Martin when she came in, and again one hour later. Dr. Richards possessed these facts regarding Ms. Martin's condition:\\n1. She had run into the back of a dump truck while riding her bicycle;\\n2. She had been unconscious at the scene for an undetermined period of time;\\n3. She had vomited five or six times;\\n4. Amnesia had been observed;\\n5. There was swelling and bruising to the right zygomatic area, an area of the middle mingeal artery, one of the arteries commonly tom in instances of intracranial bleeding.\\nIn light of these facts, his differential diagnosis was \\\"concussion, contusion, and the possibility of intracranial bleeding.\\\" In an attempt to determine which diagnosis was correct, he performed several neurological tests as well as skull x-rays. Based upon the results of these tests. Dr. Richards ultimately diagnosed Ms. Martin as having a concussion.\\nDr. Richards conveyed this information to Mr. Martin. In addition, he explained that for a patient in Ms. Martin's condition, the appropriate courses of action were either to send them home under the care of a responsible adult, or to admit them to the hospital for observation. Dr. Richards felt that Ms. Martin should remain at FAMH and convinced Mr. Martin of the same.\\nIn his conversation with Mr. Martin, Dr. Richards did not advise Mr. Martin that FAMH had a CT scanner on premises, nor did he tell Mr. Martin that such machines are able to diagnose serious head injuries. In addition, Dr. Richards did not inform Mr. Martin that should a neurological complication such as intracranial bleeding arise, while his daughter was at FAMH, she would have to be transferred to a different hospital because FAMH did not have a neurosurgeon.\\nFollowing his conversation with Mr. Martin, Dr. Richards contacted Dr. Hansen in order to have Ms. Martin admitted to FAMH (as the emergency room physician, Dr. Richards lacked authority to admit patients). Dr. Richards informed Dr. Hansen only that Ms. Martin: 1) had run into the back of a dump truck; 2) had suffered a brief period of unconsciousness; 3) had one episode of vomiting; 4) had normal bruises and scrapes. Upon being advised of this information Dr. Hansen authorized her admission. Dr. Hansen was at home when Dr. Richards contacted him, and he did not speak directly with Mr. Martin at this time.\\nAt 12:15 a.m. on the morning of July 11, 1985, a nurse examining Ms. Martin found her somewhat irritable and uncommunicative. The nurse did not report this observation to either Dr. Richards or Dr. Hansen. One hour later, the nurse found Ms. Martin unresponsive and exhibiting a \\\"blown\\\" pupil in her left eye. The medical testimony at trial indicated that a \\\"blown\\\" pupil is a symptom of intracranial bleeding. The attending nurse immediately advised Dr. Richards of Ms. Martin's deteriorating condition. Dr. Richards in turn notified Dr. Hansen, who arranged for Ms. Martin to be taken via helicopter to the University of Wisconsin Hospital in Madison.\\nCT scans performed at UW Hospital revealed the existence of a large epidural hematoma in Ms. Martin's brain. Emergency surgery was performed at 3:55 a.m. A second operation was required later that day to relieve continued bleeding. These procedures were not completely successful. Although Ms. Martin survived, she is today a partial spastic quadriplegic.\\nAt trial, the parties offered conflicting expert medical testimony on the following issues: 1) whether the diagnosis and/or treatment of Ms. Martin by Doctors Richards and Hansen, particularly their failure to obtain a CT scan and their decision to admit Ms. Martin to FAMH, was negligent, 2) whether the care provided by FAMH staff, most notably those nurses who observed Ms. Martin, was negligent, and 3) whether Doctors Richards and Hansen failed to provide Mr. Martin the information required by sec. 448.30, Stats.\\nThe jury determined that Doctors Richards and Hansen were not negligent in either their diagnosis or their treatment of Ms. Martin. With respect to the nurses, the jury found that their conduct was negligent, but that it was not a causal factor in Ms. Martin's injuries. The jury did, however, find that Dr. Richards negligently failed to inform Mr. Martin as to the existence of alternate forms of care and treatment. Accordingly, the jury awarded the Martins almost 5 million dollars in damages.\\nFollowing the verdict, the circuit court granted Dr. Richards' motion to dismiss that portion of the Martins' complaint relative to informed consent. The court believed that under sec. 448.30, Stats., the doctors had no duty to inform Mr. Martin about diagnostic or treatment alternatives with respect to what it characterized as the \\\"extremely remote\\\" possibility that his daughter would develop an intracranial bleed.\\nThe court of appeals reversed, taking issue with the circuit court's analysis of what constitutes an \\\"extremely remote\\\" possibility for purposes of sec. 448.30, Stats. \\\"In view of the serious consequences of an epidural hematoma, we conclude as a matter of law that a one to three in a hundred chance that a patient suffering a concussion will develop intracranial bleeding is not an 'extremely remote possibility.'\\\" Martin v. Richards, 176 Wis. 2d 340, 350, 500 N.W.2d 691 (Ct. App. 1993). The court of appeals remanded the case to determine whether Dr. Hansen also breached his duty to inform, and whether the doctors' failure to provide the requisite information was a cause of Ms. Martin's injuries.\\nThe first issue we address is whether the circuit court erred when it determined as a matter of law that Dr. Richards did not have a duty under sec. 448.30, Stats., to inform Mr. Martin of alternate viable medical treatments. This requires us to determine whether there was any credible evidence for the jury to determine whether Dr. Richards was negligent in failing to inform Mr. Martin: 1) that if Ms. Martin developed neurological complications from the head injury she would have to be transferred to a facility in Madison because FAMH did not have a neurosurgeon; and 2) that FAMH did have a CT scanner available which would detect any neurological complications resulting from the head injury.\\nThe circuit court ruled as a matter of law that the doctor had no duty to disclose because the statute does not require disclosure of \\\"extremely remote possibilities,\\\" see sec. 448.30(4), Stats., and a 1-3 percent chance of intracranial bleeding, the court reasoned, is remote. We disagree with the circuit court's conclusion that sec. 448.30 does not apply in this case. Like the court of appeals, we conclude that in light of the serious consequences, including death, of an intracranial bleed, a 1-3 percent possibility is not remote. Other courts have likewise been quick to recognize that although the risk of a complication may be small, such risk may be significant to a patient's decision in light of the potentially severe consequences. See, e.g., Canterbury v. Spence, 464 F.2d 772, 788 (D.C. Cir. 1972), cert. denied, 409 U.S. 1064 (1972).\\nHaving determined that the circuit court was incorrect in finding that the statute did not apply because of the \\\"remote exception,\\\" we next determine whether there was any credible evidence for a jury to determine that Dr. Richards breached his duty to inform under sec. 448.30, Stats. To do so, we must state the statutory standard applicable in informed consent cases. Section 448.30, provides:\\n448.30 Information on alternate modes of treatment. Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:\\n(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.\\n(2) Detailed technical information that in all probability a patient would not understand.\\n(3) Risks apparent or known to the patient.\\n(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.\\n(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.\\n(6) Information in cases where the patient is incapable of consenting.\\nThe first sentence in sec. 448.30, Stats., contains that statute's operative language: \\\"Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.\\\" This language appears clear in its directive. The difficulty in applying the statute, however, is in determining how far the duty to disclose extends, i.e., what is considered an alternate, viable mode of treatment. Dr. Richards argues that the duty extends only to affirmative, invasive treatments and does not extend to noninvasive or diagnostic procedures such as those involved in the case before us.\\nTo determine the intended scope of the statute, we examine the development of the doctrine of informed consent and the codification of that doctrine in sec. 448.30, Stats. The term \\\"informed consent\\\" originally arose from the doctrine that consent to treatment is only meaningful if the patient understands the risks and alternatives of the treatment. This same term has been assigned to the doctrine which places a duty on physicians to disclose information as to the alternatives and risks of a particular treatment. See Canterbury, 464 F.2d at 780 n.15.\\nThe doctrine of informed consent comes from the common law and stems from the fundamental notion of the right to bodily integrity: \\\"[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body;...\\\" Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y.1914), overruled on other grounds. See also In Matter of Guardianship of L.W., 167 Wis. 2d 53, 68, 482 N.W.2d 60 (1992) (recognizing the right to self-determination). Consent to treatment is only meaningful if it is given by persons informed or knowledgeable about the various choices available and the risks attendant upon each. The court in Canterbury, 464 F.2d at 780, wrote in great detail of this concept:\\nTrue consent to what happens to one's self is the informed exercise of choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. (Footnote omitted). The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision, (footnote omitted) From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible. (Footnote omitted.)\\nTraditionally, informed consent was based upon the tort of battery. When a patient failed to authorize treatment or consented to one form of treatment and the physician performed a substantially different treatment, the patient had a cause of action for battery. See, e.g., Corn v. French, 289 P.2d 173 (Nev. 1955) (finding battery when patient consented to exploratory surgery and doctor performed mastectomy). Sharon Nan Perly, From Control Over One's Body to Control Over One's Body Parts: Extending The Doctrine of Informed Consent, 67 N.Y.U.L. Rev. 335, 339 (1992). The cases involving \\\"failure to authorize treatment\\\" often included instances where the patient had not received information about the risks associated with the medical procedure. Id. Thus, in order to avoid liability, the physician had to make adequate disclosures. Id.\\nAn inherent difficulty existed, however, in applying the tort of battery to informed consent. A doctor's failure to disclose fit uncomfortably, or not at all, within the intentional, antisocial nature of battery; it was assumed that doctors acted in good faith when treating patients. Trogun v. Fruchtman, 58 Wis. 2d 569, 599, 207 N.W.2d 297 (1973). Further, unlike the usual battery case, patients had given some measure of consent, at least in the sense that the patient sought care from the doctor. Marjorie Maquire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 225 (1985).\\nAccordingly, the basis for liability in informed consent cases changed to a negligence theory of liability: a physician's failure to obtain a patient's informed consent is a breach of a professionally-defined duty to treat a patient with due care. Perley, From Control Over One's Body Paris, 67 N.Y.U.L. Rev. at 339. Courts are split on how to apply a negligence theory to informed consent cases, however, differing on what constitutes \\\"sufficient information\\\" for purposes of disclosure. Id. at 340. Many courts only require disclosure of information that the patient can prove is customarily disclosed by other medical professionals. Id. The court in Canterbury, 464 F.2d at 784, however, recognized that this standard was inconsistent with patients' rights to make their own health care decisions:\\nRespect for the patient's right of self-determination on particular therapy (footnote omitted) demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. (Footnote omitted.)\\nTherefore, a growing number of courts require physicians to disclose what a reasonable person in the patient's position would want to know. Perley, From Control Over One's Body Parts, 67 N.Y.U.L. Rev. at 341. This objective standard was first enunciated in Canterbury, in which a patient sought damages for injuries sustained as a result of a negligently performed laminectomy and claimed that the physician had not disclosed the risks of serious disability inherent in the operation. Canterbury, 464 F.2d at 767-77. Recognizing that every human being has a right to make his or her own medical decisions, that real consent requires the informed exercise of choice which in turn requires knowledge of the alternatives and risks attendant upon each, and that the average patient has little understanding of medicine, the Canterbury court stated that the scope of a physician's communications must be:\\nMeasured by the patient's need, (footnote omitted) and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked. (Footnote omitted.)\\n'[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.' Id. at 780, 786-87.\\nThe court in Canterbury also concluded that whenever the determination of what a reasonable person would want to know is open to debate by reasonable people, the issue is one for the jury. Id. at 788.\\nThe development of the doctrine of informed consent in Wisconsin mirrors that recited above, and like the growing number of courts, the doctrine is now based upon the standard expounded in Canterbury. In Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975), the supreme court addressed whether the circuit court properly instructed the jury on informed consent when the court stated that the doctor's duty to inform was limited to disclosures that other good standing medical professionals would customarily disclose. Id. at 10. Citing Canterbury, the court determined that the instruction was improper because the need of a patient for information should not be limited to a \\\"self-created custom of the profession.\\\" Id. at 12. It stated:\\nWe are not dealing primarily with the professional competence nor the quality of the services rendered by a doctor in his diagnosis or treatment. The right to be recognized and protected is the right of the patient to consent or not to consent to a proposed medical treatment or procedure. Because of the patient's lack of professional knowledge, he cannot make a rational reasonable judgment unless he has been reasonably informed by the doctor of the inherent and potential risks. Id.\\nRather, the court stated that the standard in informed consent cases is as follows:\\nIn short, the duty of the doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of disclosure to intelligently exercise his right to consent or to refuse the treatment or procedure proposed. Id. at 13.\\nIn other words, the court in Scaria recognized that the standard for informed consent cannot be defined by the medical profession. The decision is not a medical decision. The decision must be made by the patient, and a patient cannot make an informed, intelligent decision to consent to a physician's suggested treatment unless the physician discloses what is material to the patient's decision, i.e., all of the viable alternatives and risks of the treatment proposed. The extent of the physician's disclosures is driven then, by what a reasonable person under the circumstances then existing would want to know, i.e., what is reasonably necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis.\\nIn 1981, the Wisconsin legislature codified the standard articulated in Scaria in sec. 448.30, Stats. See Laws of 1981, c. 375 sec. 2. See also Analysis by the Legislative Reference Bureau, 1981 A.B. 941:\\nThis bill places in the statutes the standard of care that physicians are required to meet under Scaria. The bill requires physicians who treat patients to inform their patients about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.\\nThe language of the statute parrots that of the language in Scaria, requiring physicians to disclose alternate, viable forms of treatment and the risks and benefits of those treatments. Presumably the use of the word \\\"viable\\\" in the statute was intended to require disclosure to the extent mandated in Scaria: disclosure only of information reasonably necessary for a patient to intelligently exercise his or her choice regarding medical treatment. Thus, the duty imposed by the statute is dependent upon the facts of the situation. The information that is reasonably necessary for a patient to make an informed decision regarding treatment will vary from case to case.\\nIn addition, the duty under the statute is not limited to affirmative violations of bodily integrity. There can be no dispute that the language in Scaria, 68 Wis. 2d at 13, requires that a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis. Because this standard was adopted by the legislature, as indicated by the LRB notes, the phrase \\\"modes of treatment\\\" in sec. 448.30, Stats., should not be construed so as to unduly limit the physician's duty to provide information which is reasonably necessary under the circumstances. Such a reading would be contrary to Scaria. Certainly, procedures which are purely diagnostic in nature are not excluded from sec. 448.30's reach. In Scaria, itself, the plaintiffs injuries resulted from complications associated with an aortogram, a diagnostic procedure. Id. at 4. The distinction between diagnostic and medical treatments is not in and of itself significant to an analysis of informed consent. See, e.g., Annotation, Medical Malpractice: Liability For Failure of Physician to Inform Patient of Alternative Modes of Diagnosis or Treatment, 38 A.L.R. 4th, 900, 903:\\n[I]t may safely be stated that, as part of the physician's duty to obtain a patient's informed consent to any medical procedure employed by the physician in dealing with the patient, there is a duty imposed on the physician to disclose to the patient the existence of any methods of diagnosis or treatment that would serve as feasible alternatives to the method initially selected by the physician to diagnose or treat the patient's illness or injury.\\nBut see McGeshick v. A.K. Choucair, M.D., 9 F.3d 1229, 1233-35 (7th Cir. 1993) (concluding that sec. 448.30 does not impose a duty to inform a patient of methods of diagnosis).\\nSimilarly, we do not believe that a physician is necessarily absolved from providing pertinent medical information simply because the procedure he or she recommends is noninvasive. It is easy to envision a scenario where observation in lieu of more aggressive treatments entails significant risks which a reasonable patient would want to know.\\nThe applicable statutory standard in informed consent cases in Wisconsin which is explicitly stated in Scaria and subsequently codified in sec. 448.30, Stats., is this: given the circumstances of the case, what would a reasonable person in the patient's position want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis? A physician who proposes to treat a patient or attempt to diagnose a medical problem must make such disclosures as will enable a reasonable person under the circumstances confronting the patient to exercise the patient's right to consent to, or to refuse the procedure proposed or to request an alternative treatment or method of diagnosis. Under this standard, we determine whether there was any credible evidence for the jury to determine whether a reasonable person under the circumstances confronting Mr. Martin would have wanted to know about the availability of a neurosurgeon at FAMH and a CT scan. Accordingly, we consider in detail the facts of the case as they were presented to the jury.\\nThe jury was made aware that Dr. Richards possessed these salient facts regarding Ms. Martin's condition when he diagnosed and treated Ms. Martin:\\n1. She had run into the back of a dump truck while riding her bicycle;\\n2. She had been unconscious at the scene for an undetermined period of time;\\n3. She had vomited five or six times;\\n4. Amnesia had been observed;\\n5. There was swelling and bruising to the right zygomatic area, an area of the middle mingeal artery, one of the arteries commonly torn in instances of intracranial bleeding.\\nIn light of these facts, Dr. Richards' differential diagnosis was \\\"concussion, contusion, and the possibility for delayed intracranial bleeding.\\\" Dr. Richards stated at his deposition on June 24,1987, that: \\\"Every individual who loses consciousness and then regains it carries the possibility of [intracranial bleeding].\\\" An expert, Dr. John Whitcomb (Dr. Whitcomb) agreed: \\\"One of the classic presentations of a child who's seriously injured with an epidural hematoma is the person who is unconscious....\\\"\\nIn addition, the experts at trial added that the presence of nausea, vomiting and amnesia were additional signs of a more serious head injury. For example, Dr. Whitcomb testified:\\nThe things you need to watch for critically are: Is your child becoming increasingly lethargic \\u2014 just general principle is kind of getting run out of gas. Are they getting a seizure. Are they having one pupil dilate. Are they vomiting more than once or twice or three times. And I typically tell people once vomiting is okay, twice you're going to have a CT scan. That's a standard, simple formula. We just say once is okay, we'll let you vomit once. Twice you found yourself in the CT Suite because that's a sign of pressure building up inside your head. And vomiting is one of the most common, the most common indicators for serious brain injury. For me, its very, very important that we follow that issue.\\nIn an attempt to determine which diagnosis was correct, Dr. Richards performed on Ms. Martin several neurological tests as well as skull x-rays. In the end, Dr. Richards ultimately diagnosed concussion.\\nIn diagnosing a concussion, Dr. Richards did not, however, completely eliminate the possibility of intracranial bleeding. After diagnosing Ms. Martin's condition, Dr. Richards contacted Dr. Hansen, told Dr. Hansen of Ms. Martin's condition and made clear to Dr. Hansen that he wanted to keep Ms. Martin in the hospital for neurological observation. In addition, when talking to Mr. Martin, Dr. Richards informed him about the possibility of neurological complications and his desire to keep Ms. Martin at FAMH. In fact, when asked at trial about Mr. Martin's ultimate decision to keep Ms. Martin at FAMH, Dr. Richards stated that \\\"I believe I convinced [Mr. Martin] into keeping her there.\\\" Further, Dr. Richards (knowing of the inherent risk of intracranial bleeding) admitted Ms. Martin to the hospital for \\\"careful neurological followup.\\\" Dr. Richards explained that \\\"careful neurological followup\\\" meant that people in the hospital would observe Ms. Martin to watch carefully for signs of or symptoms of neurological deterioration.\\nBased upon the facts presented, it is clear that the potential existed for serious neurological complications, namely intracranial bleeding, when Dr. Richards admitted Ms. Martin to FAMH. All experts agree that if intracranial bleeding does occur, immediate action must be taken to treat it. Despite this, Dr. Richards did not tell Mr. Martin two very significant pieces of information relevant to Ms. Martin's treatment. Dr. Richards did not tell Mr. Martin that if intracranial bleeding occurred FAMH could not treat it, and that Ms. Martin would have to be transferred to a hospital in Madison where a neurosurgeon was located. Dr. Richards also did not tell Mr. Martin that a CT scan was available which would detect intracranial bleeding. This piece of information was significant in Ms. Martin's situation because it would have given Mr. Martin the information needed to conclusively determine whether Ms. Martin needed to be treated by a neurosurgeon.\\nSeveral of the experts at trial stated that the Martins should have been informed of the alternate modes of treatment. Dr. Whitcomb answered affirmatively to the following question:\\nDoctor, would the average physician exercising reasonable care July of 1985 in your opinion provide the information that you have just outlined about CAT Scanning and transfer so that the parents could make an informed decision as to whether or not to request it?\\nThe following question and answer occurred during the questioning of Dr. Imse:\\nQ: 'Would you agree that the reasonable physician exercising reasonable care must tell that type of information to the Martins in this case?'\\nA: T think a reasonable physician using reasonable care, assuming the Martins are reasonable people, should tell them, yes.'\\nEven Dr. Richards himself, testified that the Martins had a right to know that FAMH did not have a neurosurgeon on staff:\\nQ: Okay. Then you would say that \\u2014 that, in your opinion, the Martins didn't have the right to know that there was no neurosurgeon on board or available at Fort Atkinson?\\nA: I think they had a right to know. I agree with that.\\nDr. Richards argues the statute should not impose a duty upon doctors to inform patients of alternate treatments for a condition not diagnosed or not being treated by the physician. That argument ignores the facts in this case. Dr. Richards believed Ms. Martin had a concussion. He did not believe she was bleeding at the time he diagnosed concussion. But given the circumstances of this case, that does not end the inquiry. Dr. Richards knew that delayed intracranial bleeding was a condition of his diagnosis. He could not rule it out. He knew there was a distinct possibility that intracranial bleeding might occur. In sum, he knew that Ms. Martin's condition was more serious than a simple concussion. He knew that associated with this concussion was the possibility of a delayed intracranial bleed. It was this condition (the excessive vomiting, the amnesia, the unconsciousness of an undetermined time, the injury to the head), not the diagnosis, that drives the duty to inform in this case. The statute speaks to information about alternate modes of treatment; it is not limited in title or in text to \\\"Information on alternate modes of treatment for diagnosis.\\\"\\nDr. Richards further argues that these are medical decisions. In essence he states, \\\"Why should we inform the patient that we don't think we should do something?\\\" This misses the very point of the statute. When a reasonable person would want to know, the decision is not the doctor's alone to make. Here the doctor was concerned about the possibility of an intracranial bleed. When a reasonable person would want to know about an alternative treatment or method of diagnosis such as a CT scan or hospitalization in a facility with a neurosurgeon, the decision is not the doctor's alone to make.\\nIt may well be a \\\"medical decision\\\" under these circumstances to decide not to do a CT scan, or to decide not to hospitalize the patient in a hospital that can treat an intracranial bleed if it should occur. The statute on its face says, however, that the patient has the right to know, with some exceptions, that there are alternatives available. The doctor might decide against the alternate treatments or care, he might try to persuade the patient against utilizing them, but he must inform them when a reasonable person would want to know. Here, Mr. Martin could have decided to have a CT scan done or could have decided to take Ms. Martin to another hospital with a neurosurgeon. In fact, the jury found that Mr. Martin would have agreed to the alternate forms of care and treatment had he been informed of their availability.\\nBased upon all of the evidence, especially thaf which indicates the seriousness of Ms. Martin's head injury at the time she was admitted, we conclude that there was credible evidence for the jury to determine that in order to make an intelligent decision regarding the choices of treatment or diagnosis, a reasonable person, under the circumstances then existing, would have wanted to know: 1) that if Ms. Martin developed neurological complications from the head injury she would have to be transferred to a facility in Madison because FAMH did not have a neurosurgeon; and 2) that FAMH did have a CT scanner available which would detect any neurological complications resulting from the head injury. The jury, when presented with this question, found that a reasonable person would want to know this information. The jury's decision on informed consent should stand. Therefore, we reinstate the jury verdict on this issue.\\nhH hH\\nWe turn now to the issue of cause. More specifically, we address the question: Was the verdict fatally defective in that it did not require the jury to determine whether Dr. Richards' negligence in failing to inform Mr. Martin was a cause of Ms. Martin's injuries?\\nWe begin by acknowledging that all parties agree that the special verdict did not contain a typical cause question. Having answered in the affirmative the question of whether Mr. Martin would have agreed to the alternate forms of care and treatment had he been informed of their availability, the jury must then be asked, in effect, whether the alternate forms of care and treatment would have made a difference, i.e., whether the same or similar injuries would have resulted even if the injured party availed himself or herself of the alternate treatment. The court of appeals determined that the special verdict was fatally defec tive in that it did not contain a cause question. As a result, the court exercised its discretionary authority under sec. 752.35, Stats., to reverse the judgment as to Dr. Richards because the real controversy had not been tried.\\nA new trial is neither necessary nor appropriate. We conclude that the failure of the verdict to contain a question with respect to cause on the issue of informed consent was not, in this case, fatally defective. The parties waived such question. We so conclude for three reasons.\\nFirst, all parties, including Mr. Strattner (attorney for Dr. Richards) understood and agreed that an affirmative answer to special verdict Question #4 (Question #4), would establish causation on the issue of informed consent if the jury agreed in special verdict Question #3 (Question #3) that Dr. Richards was negligent in failing to inform Mr. Martin of alternate forms of care and treatment. Question #4 asked whether a reasonable person in Mr. Martin's position would have agreed to the alternate forms of care and treatment had he been informed of their availability. The jury so found.\\nSecond, Mr. Strattner failed to object to the lack of a cause question on the issue of informed consent.\\nThird, Mr. Strattner successfully argued that an arguably curative instruction should not be given to the jury. Having succeeded in precluding such an instruction, he can scarcely argue now that the judge's failure to do so results in error. .\\nWe will address each of these reasons in turn.\\nFirst, all parties understood and agreed that an affirmative answer to Question #4 would establish causation on the issue of informed consent if the jury agreed in Question #3 that Dr. Richards was negligent in failing to inform Mr. Martin of alternate forms of care and treatment.\\nQuestion #4 of the verdict reads in its entirety:\\nIf you answered Question No. 3 'Yes,' then answer this question:\\nWould a reasonable person in Robert Martin's position have agreed to the alternate forms of care and treatment had he been informed of their availability? (Yes or No).\\nThe jury answered \\\"Yes.\\\" (Question #3 asked whether Dr. Richards was negligent in failing to inform Mr. Martin of alternate forms of care and treatment, the so-called \\\"informed consent\\\" question. The jury answered \\\"Yes.\\\")\\nWhen this issue was first raised at motions after verdict, the circuit court judge made clear his recollections. The court was unequivocal that Question #4 was intended to be the cause question on the issue of informed consent and that this was the agreement of all parties:\\n[I]n any case, [Question #4] was intended to be the cause question because we had discussion among counsel with the court....\\n[SJo we decided, because this one would be here, that that would be the cause question, inferring that cause was there if the doctor was negligent, and Mr. Martin would have agreed to the other treatment.\\nThat is the absolute essence of the matter. (Emphasis added.)\\nA review of the record amply illustrates that the judge was correct in his recollection that Question #4 was intended to be the cause question. Not only does the record reflect that all of the participants were wel} aware of the need for an informed consent cause question, the record is replete with references to their understanding that Question #4 was the cause question on the issue of informed consent.\\nFor example, page 36:\\nMR. STRATTNER: That would be my request that the \\u2014 did the doctor adequately inform the patient \\u2014 I mean, I don't know what else \\u2014 when you start putting specific things in \\u2014 I mean, obviously did they adequately inform the patient that there was no neurosurgeon there, that's not a jury question.\\nTHE COURT: Do you need another question then that says\\u2014\\nMR. STRATTNER: Was it a cause? (Emphasis added.)\\nTHE COURT: Yeah. You need that....\\nAgain, on page 49 of the transcript, the judge referred to the issue of cause on the informed consent issue:\\nTHE COURT: . . . let's get back to the verdicts before we go any further. Richards, was he negligent, was he negligent in not informing? Were each of those a cause? (Emphasis added.)\\nAgain, on page 112, Mr. Strattner and Mr. Erickson (representing Dr. Hansen), continued to show their awareness of the cause issue regarding informed consent:\\nMR. STRATTNER: [T]here is a separate pattern instruction 1023.3 on Cause in informed consent cases, and I would request that at some point....\\nMR. ERICKSON: The verdict question is a little different, too.\\nTHE COURT: The verdict question where, is different from what?.\\nMR. ERICKSON: Than the standard cause question on the verdict on\\u2014 (Emphasis added.)\\nReading through the entire transcript of the conference, it is clear that at conference Mr. Strattner, aware that a cause question was needed, believed that the \\\"cause\\\" question on the issue of informed consent was Question #4. Beginning on page 112 of the conference transcript, Mr. Strattner, referring to Question #4, suggested personalizing the question to Mr. Martin.\\nMR STRATTNER: If the court looks at the comment to 1023.3 [Cause in informed consent cases] if you have the book there.\\nTHE COURT: Ido\\nMR. STRATTNER: Right down toward the bottom they suggest that the jury question, 'Would a reasonable person in plaintiffs position have refused to consent to the proposed treatment,' I guess, 'had he been informed of the risks and advantages of such proposed treatment?' Instead of 'plaintiffs position' we could make it 'Mr. Martin's position' if that's what \\u2014 I mean, if we want to personalize it.\\nTHE COURT: That's the cause question? (Emphasis added.)\\nMS. KAISER (representing Fort Atkinson Memorial Hospital): I think you want to flip-flop the way it's phrased, don't you?\\nMR. STRATTNER: How do you mean?\\nMS. KAISER: Rather than saying 'refused' [insert] 'would he have approved?'\\nMR. STRATTNER: Yeah....\\nAny doubt that might remain as to whether Mr. Strattner believed that Question #4 was the \\\"cause\\\" question is resolved beginning with the transcript on page 115 and following:\\nMR. STRATTNER: . I have a problem with this, your Honor, because I don't think that the informed consent is properly an issue in the case, but it seems to me that if it is an issue in the case then we are entitled to a verdict question framed in terms of not what Mr. Martin testified he would do, but what would a reasonable person informed of the alternatives (do) .\\\" (Emphasis added.)\\nTHE COURT: They are saying the following alternate cause question might be easier for juries to understand . So if we rephrased the verdict to say, 'Would a reasonable person in Robert Martin's position have refused to consent to the proposed treatment had he been informed of the risks and advantages of such treatment?' And you want to substitute that for the cause question I have no problem. Do you have a problem, Mr. Aiken? (Emphasis added).\\nMR. AIKEN (representing the Martins): No, except I think Ms. Kaiser might be right that it's stated in a negative instead of the affirmative. Isn't that what you said before?\\nTHE COURT: 'Would a reasonable person in Robert Martin's position have agreed to the proposed treatment, approved of, T don't care.\\nMR. STRATTNER: I think rather than 'proposed treatment' it would need to be 'alternate treatment' or something.\\nA reading of the final version of Question #4 illustrates that Mr. Strattner and Ms. Kaiser got their wish. Question #4 was changed to a reasonable person standard, it was stated in the affirmative, and \\\"proposed treatment\\\" was changed to \\\"alternate treatment.\\\" All of this was done with the judge and the parties referring to Question #4 as the \\\"cause\\\" question on informed consent. Mr. Strattner got precisely what he wanted.\\nThe next question is why would Mr. Strattner concede that Question #4 was the \\\"cause\\\" question on informed consent? That question reads, in effect: \\\"Would a reasonable person in Mr. Martin's position avail himself of the alternate forms of care and treatment had he been informed of their availability?\\\" Mr. Aiken (representing the Martins) and Mr. Strattner point to the same part of the conference transcript (quoted directly below) to support their respective positions. Mr. Aiken's position is that this dialogue proves that Mr. Strattner agreed that Question #4 was determinative of cause, and therefore there was no reason for any further question. Mr. Strattner's position is just the opposite.\\nFrom page 65:\\nMR. STRATTNER: . . . the facts that we have in this case are that Mr. Aiken has elicited testimony from people that, if something was done before Cheryl Martin's pupil was blown, she'd be 99 percent okay today.\\nTHE COURT: Um-hum.\\nMR. STRATTNER: I for one don't care about the 1 percent...\\nTHE COURT: You're willing to concede it's an all- or-nothing proposition.\\nMR. STRATTNER: I think it is in terms of the testimony we got, unless Mr. Aiken intends to argue something else. I guess I am not sure.\\nI mean, if his argument is that something should have been done so that Cheryl Martin was operated on before 1:15 in the morning, then it's 99 percent certain that they would have caught it, and I don't know why we can't get ourselves involved in all kinds of loss of chance or anything else\\u2014\\nTHE COURT: Wonderful . Mr. Erickson, . . . you're of the same view?\\nMR. ERICKSON: I agree with the fund.\\nMS. KAISER: . I am not going to disagree with the Fund either.\\nFrom page 102:\\nMR. STRATTNER: Your Honor, I guess I go back to the testimony that it would have been 99 percent successful, and why we're going to get bogged down now for another however long it takes in Ehlinger versus Sipes, I am willing to give up the 1 percent just to clean up the verdict and the instructions, and this isn't a lost opportunity case, it seems to me. Most of the experts have said 99 percent recovery. (Emphasis added.)\\nWith respect to the above quotes from the conference, Mr. Strattner states in his brief to this court that \\\"Defense counsel agreed not to challenge plaintiffs' expert's testimony that, had there been timely neurosurgical intervention, there was a 99% chance that Ms. Martin would not have suffered the injuries she did.\\\" Mr. Strattner's position in this court is that the key word is \\\"timely.\\\" He argues now that even if Mr. Martin had been informed of the alternatives and agreed to them, timely intervention was virtually impossible. In essence, Mr. Strattner's position is that he intended on arguing that the failure to inform could not have caused Ms. Martin's injury because even if he had informed Mr. Martin about the alternate forms of treatment, Ms. Martin's injuries would have occurred before anything could have been done. In his brief to this court, he states, \\\"[i]t permitted the defense to argue that even given a 100% probability that timely neurosurgical intervention would have prevented Ms. Martin's injuries, the outcome would be the same because the undisputed facts regarding travel time . scanning time and surgery time, show that timely intervention was virtually impossible.\\\" Thus, he says now, he never conceded the issue of cause.\\nWe might be able to accept Mr. Strattner's position as to just what it was he conceded in the \\\"99 percent\\\" language quoted above if he had argued that position in front of the jury. He did not. In his brief he says he conceded only to clear up jury confusion so that he could argue to the jury that Ms. Martin's intracranial bleed and subsequent condition would have occurred even if timely intervention had occurred. But he did not make that argument to the jury. He argued Question #4 only to the effect that a reasonable person would not have availed himself or herself of alternate forms of treatment. See pgs. 79-86, Transcript of Closing Arguments.\\nMr. Aiken argues that the above statements regarding the 99 percent chance for recovery must be interpreted to mean that Mr. Strattner conceded that the answer to Question #4 was determinative as to cause. In other words, Mr. Strattner was willing to concede the 1 percent, and admit that if the jury answered \\\"Yes,\\\" to Question #4, the causation was implicit because all the evidence before the jury was that if Mr. Martin had availed himself of the alternate treatment or care before Ms. Martin's pupil was blown, Ms. Martin's injuries would not have occurred.\\nWe conclude that the evidence before us, particularly the transcripts of the verdict and instruction conference, as well as the closing arguments transcript, support Mr. Aiken's position: Mr. Strattner conceded that an affirmative answer by the jury to Question #4 established causation with regard to the issue of informed consent. He was well aware of the need for a cause question on that issue. He never objected to the agreed upon verdict. He participated in many dialogues in which Question #4 was referred to as \\\"the cause question.\\\" He got what he wanted in the final form of Question #4. Finally, the arguments he makes in his brief today are not supported by the arguments he made to the jury nor by the language he employed in making the concession.\\nWe therefore conclude that the verdict submitted in this case was sufficient to establish a causal connection between Dr. Richards' negligence in failing to inform and Ms. Martin's subsequent injuries. The jury agreed that had Mr. Martin been informed, he would have submitted his daughter to the alternate forms of treatment. Causation on the issue of informed consent was conceded and it was, therefore, for purposes of this case, implicit within Question #4. Dr. Richards con-' ceded that had there been timely intervention, it would have mattered: Ms. Martin's injuries would not have occurred.\\nA second reason for concluding that the verdict in this case was not fatally defective is based on Mr. Strattner's failure to object to a cause question on the issue of informed consent. At the second oral argument held in this matter, Mr. Strattner insisted that he had made such an objection. We have carefully reviewed the record. Although he objected to including in the verdict any question with respect to informed consent, we find no objection with respect to the failure of the verdict to contain a cause question on the issue of informed consent.\\nSection 805.13(3), Stats., requires that counsel \\\"object to the proposed . . . verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record.\\\" Failure to object constitutes a waiver of any error in the proposed instructions or verdict. An objection to the verdict prior to its submission to the jury allows the circuit court to hear all arguments and correct any error. Equally important, an objection provides the reviewing appellate court with the necessary information to determine precisely what happened at trial.\\nRequiring an objection serves another purpose as well. It prevents parties from \\\"inviting error\\\" at trial so as to assure reversal or remand on appeal. We do not conclude that the parties here invited error. We simply recognize that requiring objections serves to prevent this from occurring.\\nThere is a third and separate reason why we do not remand this matter for a new trial for failure to include a cause question in the verdict on the issue of informed consent. As the court of appeals noted, Mr. Aiken preserved his objection to the lack of a cause question as to Dr. Richards' negligence in failing to inform, when he argued that an instruction be given which would incorporate the \\\"substantial factor\\\" cause question. Mr. Strattner argued the contrary position. Mr. Strattner prevailed. Having urged the circuit court to take one course of action, he can scarcely complain now that he succeeded.\\nMr. Aiken: I hate to he someone raising something and everybody has said they don't want to deviate from the standard instruction, it seems that the cause instruction ought to have something about referring to the substantial factor rule \\u2014 you don't have to read it again, but it ought to at least refer to the substantial factor rule. .\\nThere should be substantial factor at the end of that instruction....\\nI want to put on the record that it belongs there .\\nMr. Strattner: No. I am not going to argue this point.... I just can't do it, that's all.\\nI don't think it's necessary. I will say for the record I don't think it's necessary.... (Emphasis added.)\\nMr. Aiken: Like I said, Judge, it seems to me it says a causal relationship exists. That's the first thing we have to show, and the other thing we have\\nto show is that it's a sub \\u2014 and that it was a substantial factor in causing harm to the plaintiff....\\nMr. Strattner: Mr. Aiken, you want to say you want to tag on a sentence that says\\u2014\\nMr. Aiken: 'And said alternative treatment could have prevented the harm so as to be a substantial factor in causing harm.'\\nMr. Strattner: I think you're confusing things more.\\nMr. Strattner prevailed.\\nFor all the reasons stated, we hold that the failure of the verdict to contain a question with respect to cause on the issue of informed consent was not, in this case, fatally defective.\\nHH HH HH\\nThe next issue we address is whether the circuit court erred in not allowing a verdict question with respect to whether Dr. Hansen was negligent in failing to inform Mr. Martin of alternate forms of treatment and care available for Ms. Martin. In doing so, we must determine whether the duty in sec. 448.30, Stats., applies to Dr. Hansen in this case. The application of a statute to a given set of facts is a question of law. Tahtinen v. MSI Ins. Co., 122 Wis. 2d 158, 166, 361 N.W.2d 673 (1985).\\nThe standard required by the statute, as more fully set out in section I of this opinion is: given the circumstances, what would a reasonable person want to know? The applicability or inapplicability of this statute must be determined in light of the standard enunciated.\\nDr. Hansen argues that the statute is not applicable to him under the circumstances presented. We agree. The circumstances with respect to Dr. Hansen are significantly different from those with respect to Dr. Richards. Dr. Richards knew that Ms. Martin had: 1) run into the back of a dump truck; 2) been unconscious for an indeterminable amount of time; 3) vomited or been nauseous five or six times; 4) suffered a period of amnesia; and 5) had swelling and bruising to the right zygomatic area, an area of the middle mingeal artery, one of the arteries commonly torn in instances of intracranial bleeding.\\nIn stark contrast, Dr. Hansen knew only what Dr. Richards informed him over the phone. The record is uncontradicted that Dr. Hansen knew only that Ms. Martin: 1) had run into the back of a dump truck; 2) had suffered a brief period of unconsciousness; 3) had one episode of vomiting; and 4) had normal bruises and scrapes. He did not know that there were five or six episodes of vomiting or nausea. He did not know any particulars about the bruises and scrapes. He did not know about any period of amnesia. He did not know whether her neurological exam was normal.\\nGiven these circumstances, we conclude that the circuit court was correct in determining that sec. 448.30, Stats., was inapplicable to Dr. Hansen. We conclude as a matter of law that, had Dr. Hansen been the examining physician and, after examination, knew only what he knew from the telephone call he had with Dr. Richards, a reasonable person would not expect to be told by Dr. Hansen of other treatment alternatives. Therefore, the evidence presented at trial with regard to Dr. Hansen was insufficient to support a verdict question on whether Dr. Hansen violated the duty to inform statute. The evidence shows that the information Dr. Hansen possessed indicated nothing more than a simple concussion. We therefore reverse the court of appeals on this issue and affirm the circuit court.\\nIV.\\nFinally, we turn to the issue of the constitutionality of the statutory cap on noneconomic damages in sec. 655.017, Stats. In order to understand the arguments made with respect to the cap, it is important to understand the chronology of certain events in this action. Ms. Martin was injured on July 10, 1985. Her initial injury was aggravated on that day when Mr. Martin was not properly informed of the alternate modes of treatment available to treat Ms. Martin's injuries. At this time, no cap existed on noneconomic damage awards in medical malpractice actions. On June 13, 1986, however, 1985 Act 340 sec. 30, instituting sec. 655.017, was published and became law one day later on June 14,1986. Section 655.017 provides:\\n655.017 Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care pro- ' vider if the action is filed on or after June 14, 1986 and before January 1, 1991, and for acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for actions filed on or after June 14, 1986 and before January 1, 1991, is subject to limit under s. 893.55(4).\\nSection 893.55(4) (created in 1985 Wis. Act 340 sec. 72) limits the total noneconomic damages for each occurrence to $1,000,000 (adjusted to the consumer price index) for actions filed on or after June 14, 1986. The Martins filed this action on August 16, 1988, seeking damages for the economic and noneconomic injuries sustained by Ms. Martin as a result of the medical malpractice.\\nOn August 1,1990, the jury awarded the Martins $2,150,000 in noneconomic damages. If the cap on noneconomic damages in sec. 655.017, Stats., were applied to the Martins, their noneconomic damages would be limited to $1,000,000. We address the constitutionality of such application.\\nThe Martins argue: (1) that the cap violates substantive due process of law secured by Art. I sec. 1 of the Wis. Constitution; (2) that the cap violates the right to trial by jury secured by Art. I sec. 5 of the Wis. Constitution; (3) that the cap violates their right to a remedy for vested, personal injuries secured by Art. I sec. 9 of the Wis. Constitution; (4) that the cap violates their right to equal protection secured by Art. I sec. 1 of the Wis. Constitution; and (5) that the cap \\\"retroactively\\\" impairs their vested right to a cause of action in violation of the due process clause of the Fifth Amendment of the United States Constitution and Art. I sec. 1 of the Wisconsin Constitution. We conclude that under the appropriate due process analysis for retroactive legislation outlined below, the private interest here, i.e., the right to unlimited damages, including considerations of fundamental fairness, outweighs the minimal, if any, public interest served by the retroactive application of the damage cap. Therefore, retroactive application of the cap violates the Due Process Clauses of the United States and Wisconsin Constitutions. We do not address the other constitutional issues raised.\\nAs an initial matter, we must first address Dr. Richards' and the Patients Compensation Fund's (the Fund) claim that sec. 655.017, Stats., is a prospective statute, i.e., that it applies prospectively to those who file claims on or after June 14, 1986. If the statute is prospective it need not overcome the unique burdens placed upon retroactive laws. We conclude that the cap has a retroactive effect as applied to the Martins. The cap became effective on June 14, 1986, and affects claims filed after that date and before January 1,1991. The Martins' cause of action accrued prior to the cap's enactment, on July 10, 1985, when Ms. Martin's injuries from the initial accident were aggravated by Dr. Richards' negligence. \\\"[A] cause of action for negligence is said to accrue... on the date of the plaintiffs injury: 'It is the fact and date of injury that sets in force and operation the factors that create and establish the basis for a claim of damages.\\\" Hunter v. Sch. Dist. Gale-Ettrick-Trempealeau, 97 Wis. 2d 435, 442, 293 N.W.2d 515 (1980). Since the cause of action accrued at a time when no cap existed on the amount of noneconomic damages recoverable, application of the cap to the Martins' cause of action constitutes a retroactive application. If we allowed the cap, it would act here to limit the recovery of a cause of action which, when it accrued, was unlimited.\\nIt is clear that the legislature intended the cap to be given retroactive effect. We recognize that \\\"[t]he general rule in Wisconsin is that 'legislation is pre sumed to be prospective unless the statutory language clearly reveals by express language or necessary implication an intent that it apply retroactively.'\\\" Chappy v. LIRC, 136 Wis. 2d 172, 180, 401 N.W.2d 568 (1987) (quoting State v. ILHR Department, 101 Wis. 2d 396, 403, 304 N.W.2d 758 (1981)). However, the statute and its history overcome that presumption.\\nThe cap applies to actions \\\"filed on or after June 14, 1986.\\\" This language must encompass actions which accrued at an earlier date: in order for an action to be \\\"filed\\\" on June 14, 1986, it must have accrued prior to that date. The legislative history suggests that the legislature deliberately chose this retroactive application. The phrase \\\"occurring after\\\" appeared in an early version of 1985 Wis. Act. 340. However, it was subsequently deleted and replaced by \\\"filed on or after,\\\" suggesting that the legislature wanted the Act to apply to actions which accrued prior to the Act's effective date. See Drafter's Note from the Legislative Reference Bureau at 3 (May 15, 1986), and the accompanying preliminary bill draft. See also Hall v. A.N.R. Freight Sys. Inc., 717 P.2d 434, 441 (Ariz. 1986) (concluding that the terms \\\"filed on or after the effective date\\\" indicated the legislature's intent to have the Act apply retroactively to actions which accrued prior to the effective date).\\nBecause the cap applies retroactively and was intended to apply retroactively, we reach the question of whether the retroactive application of the cap on noneconomic damages is constitutional.\\nRetroactive legislation enjoys a presumption of constitutionality, and the challenger bears the burden of overcoming that presumption. Chappy, 136 Wis. 2d at 192 (citing Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984)). However, because retroactive legislation presents unique constitutional problems in that it often unsettles important rights, it is viewed with some degree of suspicion and must be analyzed within a framework different from that of prospective legislation. \\\"The [retroactive] aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former.\\\" Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976).\\nTo determine whether a retroactive statute comports with due process we must weigh the public interest served by the retroactive statute against the private interests that are overturned by it. Adams Nursing Home of Williamstown, Inc. v. Mathews, 548 F.2d 1077, 1080 (1st Cir. 1977). Implicit within this analysis is a consideration of the unfairness created by the retroactive legislation. United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n.13 (1977) (quoting Welch v. Henry, 305 U.S. 134, 147 (1983), and citing Turner Elkhorn, 428 U.S. at 14-20) (stating that retroactive legislation may offend due process if it is \\\"particularly 'harsh and oppressive'\\\"). See also 2 SUTHERLAND STAT Const sec. 41.06 (5th ed. 1993) (\\\"Judicial attempts to explain whether such protection against retroactive interference will be extended disclose that elementary considerations of fairness and justice govern the decision\\\").\\nWe begin by examining the public interest served by the cap on noneconomic damages. Dr. Richards and the Fund argue that the damage cap was necessary to meet an important social problem: the medical malpractice crisis. They state, \\\"[t]hrough ch. 655, the legislature has limited recovery for noneconomic damages in order to ensure health care for all citizens, while at the same time guaranteeing recovery for those injured by medical malpractice.\\\" \\\"Under ch. 655,... a successful medical malpractice plaintiff now may recover all of the proved economic damages, and noneconomic damages up to $1,000,000,\\\" whereas without the fund, \\\"it is likely that a plaintiff would be able to collect only some percent of the judgment.\\\" Further, they contend that the cap was enacted like the rest of ch. 655, Stats., (originally enacted in 1975) in response to: (1) a sudden increase in the number of malpractice suits; (2) the size of the jury awards; (3) the size of malpractice insurance premiums; and (4) \\\"impending\\\" dangers including increased health care costs, defensive medical practices, and the possibility that doctors would curtail their practices. See State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 508, 261 N.W.2d 434 (1978) (upholding the constitutionality of ch. 655, (1975), against an equal protection and due process challenge). See also Laws of 1975, ch. 37 sec. 1 (legislative findings regarding medical malpractice).\\nIn applying the cap retroactively here, the legislature has impaired the right to recover for the most severely injured malpractice victims in an effort (Dr. Richards and the Fund argue) to combat the increasing medical malpractice actions and awards and the resulting increased medical malpractice costs. We have seen these arguments raised in other forums and the media; however, in this court these assertions are supported by a paucity of evidence. To the contrary, the evidence supports the assertion that retroactive application of the cap does little, if any, to combat such problems. The monetary benefit from retroactively applying a cap of $1,000,000 will be too insignificant or nonexistent to have an affect upon medical malpractice costs - the express purpose of this legislation. First, evidence indicates that few individuals receive noneconomic damages in excess of $1,000,000. In fact, the U.S. Department of Justice Tort Policy Working Group found that only 2.7 percent of all medical malpractice claimants receive noneconomic damages in excess of $100,000. See Report of the Tort Policy Working Group on the Causes, Extent and Policy Implications of the Current Crisis in Insurance Availability and Affordability, U.S. Dept, of Justice, at 66, February 1986. Further, in those medical malpractice cases going to verdict where noneconomic damages above $100,000 are awarded, the noneconomic damages award averages between $428,000 - $728,000. Id. See also Gary J. Highland, California's Medical Injury Compensation Reform Act: An Equal Protection Challenge, 52 S. Cal. L. Rev. 829, 951 n.745 (recognizing that nationally, fewer than 1 percent of all awards in 1970 exceeded $100,000); Carson v. Maurer, 424 A.2d 825, 836 (N.H. 1980) (noting as significant the fact that \\\" 'few individuals suffer non-economic damages in excess of $250,000' [the legislative cap in New Hampshire]\\\" (citation omitted)). Acknowledging that few individuals receive damages in excess of $1,000,000, we can safely assume that the number of persons retroactively affected by the law whose jury awarded noneconomic damages exceed $1,000,000 is too insignificant to have an affect on future malpractice costs.\\nSecond, the statutory scheme in ch. 655, Stats., causes the retroactive application of the cap to have little effect in lowering malpractice insurance costs or in making medical malpractice insurance more accessible to health care providers. Section 655.27 limits the liability of health care providers and their malpractice insurers to $200,000 per occurrence, and $600,000 for all occurrences in one policy year, for occurrences before July 1, 1987. Damages in excess of those amounts are paid by the Fund. Accordingly, malpractice insurance premiums which we can assume are based, at least in part, upon the risk of future acts of malpractice, would be based upon the risk that an award for one act of malpractice would range from $0 - $200,000 or the risk that the total of all awards for malpractice would range from $0 -$600,000. Therefore, retroactive application of a cap on noneconomic damages over $1,000,000 has no conceivable affect on insurance premiums when there is no risk to an insurer of incurring liability over $200,000 or $600,000 respectively.\\nFinally, Dr. Richards and the Fund argue that the cap should be applied here because in the end, it actually serves the victims of medical malpractice. It does so, they argue, by ensuring that victims receive all of their economic damages and up to $1,000,000 of their noneconomic damages. Prior to the cap, they argue, victims were limited to the amount of insurance carried by the individual health care provider. This is an argument for the existence of the Fund, which is not at issue here. If the gist of Dr. Richards' and the Fund's argument is that retroactive application of a damage cap will help preserve the Fund coffers for future victims, we find it unpersuasive. As we stated earlier, evidence indicates that the number of noneconomic damage awards over $1,000,000 which accrued prior to the cap is too insignificant to have any impact on the Fund's coffers.\\nIn sum, it appears to us that the retroactive application of the legislation does little, if anything, to further the purposes cited by Dr. Richards and the Fund. Like Dr. Richards and the Fund, we too are familiar with the generic reasons which are often cited for caps on noneconomic damages. However, as stated above, there is little if any evidence in this record to support those assertions.\\nWe turn now to a consideration of the private interests affected by this retroactive legislation. The Martins argue that they have a vested property right in their cause of action to recover an unlimited amount of damages. They base their argument upon Hunter, 97 Wis. 2d at 441, in which this court concluded that an amended statute of limitations could not work to bar a plaintiffs cause of action for negligence which accrued prior to the statutory amendment. The court in Hunter reasoned that the plaintiff had a vested right in a cause of action for negligence and that retroactive application of the amended statute of limitation would \\\"have the effect of destroying or terminating that right.\\\" Id. at 447.\\nDr. Richards and the Fund do not dispute that the Martins have a vested property right in their cause of action. However, they contend that the Martins have never had a vested right to a particular measure of damages, citing Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 88 n.32 (1978) (\\\" 'A person has no property, no vested interest, in any rule of the common law'\\\"); Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 88-92, 102 N.W.2d 393 (1960) (concluding that a circuit court has the right to reduce excessive damage awards), and therefore the legislature, at will, can limit the amount of noneconomic damages they may recover.\\nWe disagree with Dr. Richards and the Fund that the Martins never had a right, vested or otherwise, to a particular measure of damages. The Martins, at the time of the injury, had a substantive right to unlimited damages given to them by statute. In 1985 when the Martins' rights accrued, chapter 655, Stats., (to which the Martins were presumed to be bound, see sec. 655.005) implicitly provided the Martins with that right.\\nWisconsin law provides that the amount of recovery, when set by a statute is fixed on the date of injury, see State ex rel. Briggs & Stratton, 100 Wis. 2d at 655-56 (holding that the right to recover a particular measure of damages in a worker's compensation case is fixed as of the date of injury); Bradley v. Knutson, 62 Wis. 2d at 436-37 (holding that in a wrongful death action, the date of injury determines the tortfeasor's liability.\\\" '[R]ights growing out of a wrong must relate to the happening of the wrong itself.' \\\") (citation omitted), and may not be amended unless necessary for an important public purpose. See State ex rel. Briggs & Stratton, 100 Wis. 2d at 658 (holding that the fixed measure of damages may not be retroactively amended simply for the purpose of off-setting the late adoption of a law).\\nThe right to unlimited damages was implicit within ch. 655, Stats., (1986), at the time the Martins' claim accrued. For example, sec. 655.04(l)(a) implicitly recognized the right to recover an unlimited amount of damages by both the reference to the right to recover over $25,000 and by the silence with regard to any limit on damages above that amount. The powers granted to the patient's compensation panels in sec. 655.065(4)(a) also implicitly recognized the panels' powers to award unlimited damages by not setting a limit on the possible award: \\\"If the panel determines that a claimant has suffered bodily injury . . . the panel shall award compensation and benefits.\\\" Finally, the compensatory scheme in sec. 655.27 for Fund disbursements expressly recognized the right to recover over $1,000,000 in damages. Section 655.23(4) required health care providers to carry insurance of $200,000 per occurrence and $600,000 for all occurrences in one policy year prior to July 1, 1987, and sec. 655.27(1) provided that any claims in excess of these amounts would be provided by the Patients Compensation Fund. Section 655.27(5)(d), evinces that this excess is unlimited providing that in the event any one claim exceeded $1,000,000, the Fund would pay the claim in increments of $500,000 per year until the claim had been paid in full.\\nThe legislative history of ch. 655, Stats., reinforces the existence of the right to unlimited damages in 1985. The drafting record of 1975 A.B. 725 (which created ch. 655), contains early drafts of the Assembly Bill and subsequent Senate Amendments and Substitutions. Several of these drafts proposed limits on damage awards in medical malpractice actions of $100,000 to $500,000. However, fch. 655, as enacted in 1975, contained no such general damage limitation. Chapter 655 contained only a conditional limitation in sec. 655.27(6) which read:\\nIf, at any time after July 1,1979, the commissioner finds that the amount of money in the fund has fallen below a $2,500,000 level in any one year or below a $6,000,000 level for any 2 consecutive years, an automatic limitation on awards of $500,000 for any one injury or death on account of malpractice shall take effect. This subsection does not apply to injury or death resulting from an incident of malpractice which occurred prior to the date on which such an award limitation takes effect. This subsection does not apply to any payments for medical expenses.\\nTherefore, in 1975, the right to damages was unlimited providing the Fund maintained a certain minimum level. In 1985, at the time the Martins' claim for damages accrued, that provision in sec. 655.27(6) was absent from ch. 655 leaving damages in medical malpractice cases unconditionally unlimited. In 1985 when the Martins' claim accrued, they had a substantive right to recover, in full, the noneconomic damages awarded by the jury.\\nIf applied, the cap on damages would retroactively impair that right. If the cap on damages were applied, the Martins would lose $1,150,000 - over half of their recovery. This is a severe impairment of their rights. The loss of noneconomic damages in any amount, however, is significant because noneconomic damages are essential to a tort victim. The court in Carson, 424 A.2d at 837, aptly described the importance:\\n[A] tort victim 'gains nothing' from the jury's award for economic loss, since that money merely replaces that which he has actually lost. It is only the award above the out-of-pocket loss that is available to compensate in some way for the pain, suffering, physical impairment or disfigurement that the victim must endure until death.\\nOur analysis also requires that we examine the fairness of the retroactive taking. We believe the manner in which the Martins' rights would be impaired by the cap is inherently unfair for two reasons.\\nThe cap was published one day and it became law the next. Without any meaningful notice, the Martins were stripped of their right to unlimited damages because they did not file on June 13, 1986, the day before the announced cap became effective, and because the time to file their claim fell within the four and one half year period between June 14, 1986, and January 1, 1991. If the Martins had been given adequate notice they could have filed earlier; if Ms. Martin's injuries accrued at a later date, the Martins could have waited to file until the cap sunsetted. Because they did neither, they were one of the few who fell into the \\\"trap for the unwary\\\" presented by sec. 655.017, Stats.\\nThere is yet one more measure of unfairness that the cap extracts, not just to the Martins but to all people whose noneconomic damages exceed one million dollars. The underlying assertion of the defendants, and of all who seek to impose a cap, is that the tort system is \\\"broke\\\" or at least badly in need of repair. Assuming the truth of that assertion for the sake of argument, the cap imposed here seeks to fix that system at the sole expense of those most seriously injured. That strikes us as neither fair nor equitable. A person whose noneconomic damages is one million dollars or less recovers 100 percent of his or her noneconomic loss. Those whose injuries exceed the cap receive but a fraction.\\nNo one here asserts that the award here was not supported by the injuries. The injuries to Ms. Martin were and continue to be severe. She is today a partial spastic quadriplegic. Her hospitalization was long and traumatic. She can understand what is said to her, but cannot respond beyond \\\"uh-huh\\\" or \\\"um hum.\\\" She can eat and drink, but only if someone cuts her food into small pieces and remains with her; she can barely swallow and the danger of choking is always present. She can walk, but for no more than 20 or 30 yards with the help of a cane. She is, in short, severely and permanently handicapped. Yet she is forced to pay for fixing the system while others whose injuries are less severe pay nothing. This hardly befits notions of fundamental fairness.\\nHaving considered the loss of rights incurred by the Martins and the unfair manner in which that loss was occasioned, we must engage in the due process analysis recited earlier to determine whether the retro active application of the cap is constitutional. To restate that analysis, we must balance the public interest served by the retroactive application of the cap against the private interests that are overturned by it, including any unfairness inherent in such application.\\nAs we concluded earlier, the record reveals minimal, if any, public interest served by applying the cap on noneconomic damages retroactively to limit the recovery of tort victims whose noneconomic damages exceed $1,000,000. There is little evidence before us to support the assertion that the retroactive application of the cap lowers medical malpractice costs or ensures health care in the future. In contrast, the Martins' right to unlimited damages was a fixed, substantive right. If the cap is applied to the Martins the impairment of their right will be severe: the Martins will lose $1,150,000 of their noneconomic damages. Further, they will have had no meaningful notice of such impairment. And, because of the seriousness nature of their injuries, they will be forced to help pay for \\\"fixing\\\" the system, while others less severely injured will not. The taking is substantial; the unfairness is palpable.\\nAccordingly, when we balance the public interest against the private interest affected here, keeping in mind basic considerations of fairness, we conclude that the private interest outweighs the minimal public interest served by the retroactive application of the cap. A jury of 12 lay citizens - not judges or lawyers - determined that the Martins had suffered a significant amount of noneconomic damages. Specifically, the jury awarded $2,000,000 for Ms. Martin's pain and suffering and $150,000 for the Martins' past loss of society and companionship. The cap not only deprives the Martins of over half of their recovery, or $1,150,000, it affects only litigants like the Martins whose damages are so severe as to exceed $1,000,000. In an attempt to further the few purposes cited for retroactive application of the cap, the legislature has placed the burden on the most severely injured litigants, whose claims accrued before the cap was enacted. To deprive the Martins and litigants like them of their recovery in the ephemeral hope that this retroactive application will further the few purposes cited for the retroactive application of the cap, violates the most fundamental notions of fairness and strikes at the heart of due process.\\nAccordingly, we hold that retroactive application of the cap on noneconomic damages in sec. 655.017, Stats., would be unconstitutional under the Due Process Clause of the United States and Wisconsin Constitutions.\\nCONCLUSION\\nIn sum, we conclude: (1) that the jury's decision on informed consent should stand and accordingly, we affirm the court of appeals; (2) that the failure of the verdict to contain a question on cause with respect to the issue of informed consent was not fatally defective because such a question was waived by the parties, and accordingly, we reverse the court of appeals; (3) that the circuit court was correct in determining that sec. 448.30, Stats., was inapplicable to Dr. Hansen and accordingly, we reverse the court of appeals; and (4) that the cap on noneconomic damages should not be retroactively applied.\\nBy the Court. \\u2014 The decision of the court of appeals is affirmed and reversed.\\nSection 448.30, Stats., titled \\\"Information on alternate modes of treatment\\\" provides the following:\\nAny physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.\\nThe physician's duty to inform the patient under this section does not require disclosure of:\\n(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.\\n(2) Detailed technical information that in all probability a patient would not understand.\\n(3) Risks apparent or known to the patient.\\n(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.\\n(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.\\n(6) Information in cases where the patient is incapable of consenting.\\nA \\\"differential diagnosis\\\" is defined as:\\n[T]he determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings. Stedman's Medical Dictionary 428 (25th ed. 1990).\\nBoth the circuit court and the court of appeals relied upon testimony indicating that 1-3 percent of patients exhibiting Ms. Martin's symptoms may develop intracranial bleeding.\\nBecause this section largely deals with the actions of the attorneys who represented the plaintiffs and defendants in this case, we refer to them by name, understanding full well that they simply represent the interests of the actual parties.\\n\\\"Noneconomic damages\\\" are defined in sec. 893.55(4)(a), Stats., which provides in relevant part:\\n'[N]oneconomic damages' means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.\\nThe Fifth Amendment of the United States Constitution, which applies to the states via the Fourteenth Amendment, provides in pertinent part: \\\"No person shall... be deprived of life, liberty, or property, without due process of law.\\\"\\nArticle I \\u00a7 1 of the Wisconsin Constitution provides:\\nAll people are bom equally free and independent, and have certain inherent rights; among these Eire life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.\\nThis court recognized in State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d 650, 657, 302 N.W.2d 487 (1981) (citing Haase v. Sawicki, 20 Wis. 2d 308, 311 n.2, 121 N.W.2d 876 (1963)), that:\\n'It is well settled by Wisconsin case law that the various freedoms preserved by sec. 1. art. I, Wis. Const., are substantially the equivalent of the due-process and equal-protection-of-the-laws clauses of the Fourteenth amendment to the United States constitution. Pauly v. Keebler (1921), 175 Wis. 428, 185 N.W. 554; Boden v. Milwaukee (1959), 8 Wis. (2d) 318, 324, 99 N.W. (2d) 156; and Lathrop v. Donohue (1960), 10 Wis. (2d) 230, 235, 102 N.W. (2d) 404.'\\nThe Patients Compensation Fund was created in sec. 655.27, Stats., to act as the excess insurer in medical malprac tice actions. The statute permits the Fund to be named as a party in actions for \\\"damages arising out of the rendering of medical care.\\\" See Section 655.27(5)(a). When so named, the Fund is required to pay the portion of the judgment or settlement against a health care provider in excess of the statutory limit for the provider's individual financial responsibility. See sec. 655.27(5)(d). For actions occurring before July 1,1987, the Fund pays the excess of any one claim over $200,000. See sec. 655.23(4).\\nFor examples of decisions in which this sort of balancing test has been utilized, see Chappy v. LIRC, 136 Wis. 2d at 192-94 (weighing the need to ameliorate the affects of inflation on employees by imposing the inflationary costs on the employers against the de minimis effect of the retroactive law on the employers); State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d at 656-58 (weighing the retroactive aspect's effect on the right to contract against the legislature's need to retroactively off-set the late adoption of a law); Usery, 428 U.S. at 16-20 (weighing the cost to employers of compensating for former employees' death or disability against the need to compensate former employees for injuries incurred while working in the coal mines).\\nSee sec. 655.23(4), Stats., (requiring that health care providers carry $200,000 of insurance for each occurrence, and $600,000 for all occurrences in any one policy year before July 1, 1987; $300,000 of insurance for each occurrence, and $900,000 for all occurrences in any one policy year after July 1,1987 and before July 1, 1988 and; $400,000 for each occurrence, and $1,000,000 for all occurrences in any one policy year, on or after July 1,1988).\\nStatutory modifications in damage limitations are changes in substantive rights. Bradley v. Knutson, 62 Wis. 2d 432, 436, 215 N.W.2d 369 (1974). We need not determine whether such right be considered \\\"vested.\\\"\"}"

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+"{\"id\": \"8665960\", \"name\": \"Edward Kraemer & Sons, Inc., Plaintiff-Appellant, v. Sauk County Board of Adjustment, Defendant-Respondent-Petitioner\", \"name_abbreviation\": \"Edward Kraemer & Sons, Inc. v. Sauk County Board of Adjustment\", \"decision_date\": \"1994-05-04\", \"docket_number\": \"No. 91-0886\", \"first_page\": \"1\", \"last_page\": \"17\", \"citations\": \"183 Wis. 2d 1\", \"volume\": \"183\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T01:10:00.204053+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward Kraemer & Sons, Inc., Plaintiff-Appellant, v. Sauk County Board of Adjustment, Defendant-Respondent-Petitioner.\", \"head_matter\": \"Edward Kraemer & Sons, Inc., Plaintiff-Appellant, v. Sauk County Board of Adjustment, Defendant-Respondent-Petitioner.\\nSupreme Court\\nNo. 91-0886.\\nSubmitted on briefs November 30, 1993.\\nDecided May 4, 1994.\\n(Also reported in 515 N.W.2d 256.)\\nFor the defendant-respondent-petitioner there was a brief by Eugene R. Dumas and Sauk County Corporation Counsel, Baraboo.\\nFor the plaintiff-appellant there was a brief by Lauri D. Morris, Richard L. Bolton and Stroud, Stroud, Willink, Thompson & Howard, Madison.\", \"word_count\": \"4233\", \"char_count\": \"25961\", \"text\": \"HEFFERNAN, C.J.\\nThis is a review of a published xdecision of the court of appeals, Edward Kraemer & Sons, Inc. v. Sauk County Bd. of Adjust ment, 175 Wis. 2d 168, 499 N.W.2d 211 (Ct. App. 1993), reversing an order of the Sauk County circuit court, Virginia A. Wolfe, Judge, that, after a sec. 59.99(10), Stats., review, affirmed the Sauk County Board of Adjustment's (Board's) denial of a special exception permit to Edward Kraemer & Sons, Inc. (Kraemer) to extract minerals on a forty-acre parcel of land in Sauk County. The question we address on this review is whether the Board, in denying Kraemer's permit application, correctly interpreted and applied Sauk County ordinance sec. 7.04(1), which states that one purpose of the ordinances is \\\"to provide for wise use of the county's resources\\\" and sec. 7.04(2)(i)19.c.l(a)(iii), which requires the Board to consider the ability of a proposed mineral extraction plan \\\"to avoid harm to the public health, safety and welfare\\\". We conclude that the Board correctly determined that when deciding whether to grant the permit, ordinance secs. 7.04(1) and 7.04(2)(i)19.c.l(a)(iii) allowed it to consider the impact of the proposed operation on the Baraboo bluffs. Further, the Board correctly determined the limited scope of its, authority to consider the harm to the bluffs \\u2014 the Board explained that by denying the permit, it was giving Kraemer an opportunity to submit a more developed application describing how the company planned to implement its stated commitment to preserve a portion of the bluffs , on its property. The Board's decision is valid as tested on certiorari. We reverse the decision of the court of appeals.\\nIn January of 1990, Kraemer purchased forty acres of land in a portion of Sauk County zoned for agricultural use. The land is located at or near the lower narrows of the Baraboo bluffs, a land formation composed of quartzite rock. After purchasing the land, Kraemer applied to the Board for a special exception permit to conduct mineral extraction activities including excavating, removing, and processing crushed stone. After a hearing on January 25, 1990, the Board granted the permit to Kraemer, with conditions. However, the legal notice of this hearing was defective and the decision following the hearing was void.\\nThe Board held a second hearing on February 22, 1990. Kraemer employees and other individuals who supported the permit spoke first. Ken Isenberger, a civil engineer employed by Kraemer, noted that the Baraboo bluffs region is a significant geological area. He explained that Kraemer had determined that the forty-acre site was a good location for quarrying because the property was adjacent to Kraemer's existing twenty-seven acre quarry. Isenberger said that Kraemer would not need to create a new opening for quarrying and start-up costs would be lower. Moreover, because the rock at the site rose in a series of terraces, quarrying could be started on level areas, making the operation safer.\\nIsenberger submitted a two-page operations plans and a three-page restoration plan. Isenberger described the proposed operations plan as a five year plan in which part of the forty acres would be quarried to an average depth of seventy-five feet. In the following five years, the same area would be quarried to an average depth of 150 feet. The restoration plan explained Kraemer's intent to cover and seed areas after excavation was completed. Isenberger addressed several other issues, including concerns regarding dust, noise, water run-off, blasting techniques, and truck hauling.\\nIsenberger stated that Kraemer was willing to grant a scenic easement on the east bluff of the forty acres to an appropriate organization. In later testimony William Kraemer, another company representative, reiterated this offer and added, \\\"[I]f there is some way that we can show you that we do intend to honor our commitment to preserve the bluff, we will do it.\\\"\\nThe Board then heard testimony from approximately thirty people who opposed the permit. The opponents emphasized the geological and aesthetic significance of the Baraboo bluffs, and said they were concerned that the proposed mining would destroy a portion of the bluffs. Opponents were also concerned that mining would have an adverse effect on recreation and tourism in the area, and on property values, safety, and health.\\nOn March 1,1990, by a unanimous vote, the Board denied Kraemer's permit application. The Board explained at length its reasons for denying the permit. The Board acknowledged that the Sauk County ordinances did not authorize the Board to preserve all portions of the Ice Age Trail, which runs through the Baraboo bluffs, in their existing state. However, the Board concluded that it had the authority to protect the public from harm that would result from \\\"substantial desecration\\\" of a portion of the Baraboo bluffs. For its authority, the Board relied on two sections of the Sauk County ordinances governing the agricultural district. Section 7.04(1) states that one purpose of the ordinance is \\\"[t]o provide for wise use of the county's resources\\\"; and sec. 7.04(2)(i)19.c.l(a)(iii) states that in granting a special exception permit for mineral extraction, the Board must consider:\\nability of the operation . to avoid harm to the public health, safety and welfare and to the legitimate interests of nearby properties.\\nThe Board stated that the permit was provisionally denied to give Kraemer the opportunity to supplement its operations plan by showing how it would fulfill its stated commitment to preserve a portion of the bluffs. The Board declared:\\n[T]he members of the Board believe that the result of this decision is merely to respond to the statement made by Mr. William Kraemer at the public hearing that \\\"If [there is] some way we can show you that we do intend to honor our commitment to preserve the bluff, we will do it.\\\" As both Mr. Krae-mer and Mr. Isenberger, acting in the capacity of chief spokesperson for Kraemer & Sons, repeatedly indicated, the company is willing to make a documented commitment to not harm what everyone seems to recognize as an historic and valuable natural landmark.\\nThe Board added that it was willing to consider a more detailed application in the future. The Board also stated that its decision was based only on the evidence presented at the public hearing and on a site visit on February 27th.\\nPursuant to sec. 59.99(10), Stats., Kraemer commenced an action in circuit court for certiorari review of the Board's decision. The circuit court affirmed the decision of the Board. On appeal, the court of appeals reversed. In its reasoning, the court of appeals stated that \\\"activities subject to special exception permits are permitted uses in the zoning district in which they are located.\\\" Edward Kraemer & Sons, Inc., 175 Wis. 2d at 174. Further, Sauk county ordinance sec. 7.04(2)(i)19.c.l(d) provides: \\\"The board shall attach such conditions to each approved application as are necessary to assure that the operation will satisfy the standards [that must be met before a mineral extraction permit can be granted] . . .\\\" Interpreting the ordinance language in light of its understanding of special exception permits, the court of appeals concluded that it was the Board's responsibility to fashion conditions so that it could grant the permit to Kraemer. Id. at 173-74. The court of appeals apparently believed that the mineral extraction permit had to be granted and if conditions were necessary to ensure compliance with the ordinance, the Board was obligated to fashion them.\\nBecause the circuit court took no new evidence when it conducted certiorari review of the Board's decision, this court applies the traditional common law certiorari standard of review. State ex rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101, 122, 388 N.W.2d 593 (1986). Depending on which facet of the Board's action is being challenged, common law certiorari review requires us to consider one or more of the following: \\\"(1) whether the Board kept within its jurisdiction; (2)'whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.\\\" Smart v. Dane County Bd. of Adjustments, 177 Wis. 2d 445, 452, 501 N.W.2d 782 (1993). Under common law certiorari review this court reviews the record of the Board. State ex rel. Harris v. Annuity & Pension Bd., Employees' Retirement Sys. of Milwaukee, 87 Wis. 2d 646, 651, 275 N.W.2d 668 (1979).\\nThe first step we take on certiorari review is to determine which facet of the Board's action is being challenged. We then apply the portion of certiorari review applicable to that facet of the Board's action. Regardless of which portion of certiorari review is applied, the Board's decision is entitled to a presumption of validity. Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d 468, 476, 247 N.W.2d 98 (1976).\\nThe present case involves a challenge to the Board's choice of, and application of, law. Kraemer claims that the Board could consider only the specific standards in the ordinance, and argues that the Board did not base its decision on these standards. Kraemer argues that landmark preservation and degree of public opposition are not standards that the Board may consider. Because this is a challenge to the Board's choice of, and application of, law, we look to the second portion of certiorari review \\u2014 whether the Board proceeded on a correct theory of law. A board proceeds on a correct theory of law when it relies on the applicable ordinances and cases and applies them properly. See Smart, 177 Wis. 2d at 452-54.\\nBecause the forty acre parcel was part of an agricultural district, sec. 7.04 of the Sauk County ordinances applies to this case. Section 7.04(1) sets forth the purposes of the ordinance, including \\\"[t]o provide for wise use of the county's resources.\\\" Section 7.04(2)(i) 1 \\u2014 20 contains special exception uses that are permitted in the agricultural district if the board finds that certain conditions are met. Board approval of these special exception uses must be consistent with the general purpose of the ordinance. Section 7.04(2)(i). The ordinance provides that board approval shall be based on evidence showing that the proposed use is desirable from a public interest standpoint, considering the factors of smoke, dust, noxious or toxic gases and odors, noise, vibration, operation of heavy machinery, heavy vehicular traffic and increased traffic on the public streets. Id. The factors the board may consider are not limited to those enumerated. Id.\\nOrdinance sec. 7.04(2)(i)19 imposes additional conditions for the grant of a special exception permit to engage in mineral extraction activities. The applicant must submit an operations plan and a reclamation plan. Section 7.04(2)(i)19.a, b, c.l(b)-(c). Section 7.04(2)(i)19.c. provides:\\n1. . In order to grant a special exception permit, the board must find:\\n(a) That mineral extraction and or processing is an appropriate land use at the site in question, based upon consideration of such factors as:\\n(i) existence of mineral deposits; and\\n(ii) proximity of the site to transportation facilities and to market areas; and\\n(iii) ability of the operation, as described in the proposed operations plan, to avoid harm to the public health, safety and welfare and to the legitimate interests of nearby properties.\\nIn denying the permit, the Board relied on two portions of the ordinance: sec. 7.04(1), stating that the general purpose of the ordinance is to provide for wise use of the county's resources, and sec. 7.04(2)(i)19.c.l(a)(iii), stating that the Board must determine whether the operation will \\\"avoid harm to the public health, safety and welfare\\\". It was on the basis of these sections that the Board concluded it had the authority \\\"to protect the public from the harm that would be involved in the substantial desecration\\\" of a portion of the Baraboo bluffs.\\nWe agree with the Board's interpretation of its authority under ordinance secs. 7.04(1) and 7.04(2)(i)19.c.l(a)(iii). The purpose of \\\"provid[ing] for wise use of the county's resources,\\\" set forth in sec. 7.04(1), is a general statement of purpose contained at the beginning of the ordinances governing agricultural districts. A zoning board may look to a statement of purpose as a guide when evaluating an applicant's proposed operations plan. Smith v. City of Brookfield, 272 Wis. 1, 7-8, 74 N.W.2d 770 (1956). Thus, this statement of purpose allowed the Board, while evaluating the operations plan, to consider the impact of Krae-mer's proposal on the Baraboo bluffs \\u2014 an important natural resource in Sauk County.\\nIn addition, sec. 7.04(2)(i)19.c.l(a)(iii), the \\\"public health, safety and welfare\\\" standard, is a general standard that provides the Board with flexibility and discretion to consider how a proposed special exception could affect the public welfare. The standard allows the Board to consider potential harm to individuals living near the proposed mineral extraction site, including exposure to health hazards from the dust and threats to safety posed by blasting. The public health, safety and welfare standard is also broad enough to enable the Board to consider the generalized effects on the public welfare that concerned the Board in this case \\u2014 harm to the public that would result from partial destruction of a natural area that both permit supporters and opponents agree is of great geological importance.\\nWe are persuaded that the Board correctly determined the scope of its authority under ordinance secs. 7.04(1) and 7.04(2)(i)19.c.l(a)(iii) because the Board clearly explained the limits of its authority to consider the impact of the proposed mining on the Baraboo bluffs and to consider whether partial destruction of the bluffs would harm the public welfare. The Board stated that it was not deciding that Kraemer did not have the right to use property that Kraemer owns. The Board correctly explained that it was not authorized to preserve all portions of the Ice Age Trail in their present state, adding that such preservation could only occur through government purchase of the property. Moreover, the Board correctly stated that the Sauk County ordinances did not provide the Board authority to impose a moratorium on applications for special exception permits. In support of this statement, the Board reasoned that the ordinance establishes the uses that may be the subject of requests for special exception permits and acknowledged that it cannot refuse to consider an application that falls within those established categories.\\nWe are further persuaded that the Board correctly interpreted the scope of its authority under ordinance secs. 7.04(1) and 7.04(2)(i)19.c.l(a)(iii) because the action the Board took was limited. In the decision denying the permit, the Board did no more than suggest that Kraemer explain how it would implement action the company had offered to take. The Board stated that denial of the permit was a reaction to a situation in which Kraemer was willing to show its commitment to preserving the bluff, but had not yet done so. The Board stated that Kraemer was willing to convey an easement to a portion of the bluffs to an appropriate organization. However, the Board decided that it did not have enough information in the record to grant the permit on the condition that the easement be conveyed. Therefore, the Board suggested that if Kraemer wanted to grant an easement the company should do so privately and the parties could then stipulate to the grant when Kraemer submitted a renewed application. The Board added that its decision did not \\\"indicate a prejudgment . . . against favorable consideration of a more developed application in the future.\\\"\\nKraemer argues that the Board can consider only the specific, objective standards in the ordinance. He then sets forth what he believes are the only specific standards: whether the site is feasible from an economic perspective, whether the operations plan demonstrates that harm to neighboring properties will be avoided, and whether a reclamation plan has been submitted. Kraemer apparently does not believe that ordinance secs. 7.04(1), stating that one purpose of the ordinances is to \\\"provide for wise use of the county's resources\\\", and sec. 7.04(2)(i)19.c.l(a)(iii), requiring that the Board consider \\\"harm to the public health, safety and welfare\\\", are specific enough to be standards for the Board's consideration. Kraemer points out that landmark preservation is not a standard listed for consideration in the ordinance. Therefore, according to Kraemer, the board did not have authority to consider the impact of the proposed operation on the bluffs when it deliberated on whether to grant the permit.\\nTo support its interpretation of the standards the Board can consider, Kraemer argues that special exceptions, also called \\\"conditional uses\\\", are expressly permitted when the standards established in the ordinance are met. See State ex rel. Skelly Oil Co. v. Common Council of Delafield, 58 Wis. 2d 695, 701, 201 N.W.2d 585 (1973). Kraemer further asserts that these standards must be sufficiently specific to withstand attack on the grounds that they constitute an unconstitutional delegation of legislative authority. See Gorham v. Town of Cape Elizabeth, 625 A.2d 898, 900 (Me. 1993).\\nKraemer's argument that the Board can consider only specific standards is incorrect. The Board cannot ignore any standards set forth in the ordinance. See sec. 59.99(1), Stats, (stating that a county board of supervisors may provide for the appointment of a board of adjustment that may make special exceptions to the terms of a county ordinance \\\"in accordance with general or specific rules therein contained\\\"). Because ordinance secs. 7.04(1) and 7.04(2)(i)19.c.l(a)(iii) are explicit criteria, the Board must consider them when determining whether to grant a mineral extraction permit. Indeed, the Board would have been proceeding contrary to the law had it failed to consider them.\\nKraemer may be arguing that the county board of supervisors can promulgate only specific standards. This argument fails as well. An ordinance standard governing special exceptions is not impermissible because it is general in nature. Section 59.99(1), Stats., explicitly provides that a board of adjustment may make special exceptions to an ordinance \\\"in accordance with general or specific rules\\\" (Emphasis added). Explanation for use of general special exception standards is set forth in 3 Edward H. Ziegler, Rathkopf's The Law of Zoning and Planning \\u00a7 41.11, at 41 \\u2014 49 (4th ed. 1993):\\n[generalized standards are acceptable in most jurisdictions. The purpose of the special exception-conditional use technique is to confer a degree of flexibility in the land use regulations. This would be lost if overly detailed standards covering each specific situation in which the use is to be granted or, conversely, each situation in which it is to be denied, were required to be placed in the ordinance.\\nThus, the mere fact that the \\\"wise use of the county's resources\\\" and \\\"public health, safety and welfare\\\" stan dards are general in nature does not impair the validity of these portions of the ordinance.\\nAlthough Kraemer does not directly assert that the general standards are unconstitutional, he suggests as much when he argues that standards must not be so general as to be an impermissible delegation of legislative authority. In Smith v. City of Brookfield, 272 Wis. at 7-10, we upheld the constitutionality of a zoning ordinance with standards similar to those at issue in the present case. Town of Brookfield ordinance sec. 7 provided in relevant part:\\n(a) Use regulations.... In agricultural districts no buildings or lands shall be used... except for one or more of the following uses:\\n4. For uses enumerated below, providing the location and plan of operation have been submitted to and approved by the board of appeals after recommendation of the planning commission and after public hearings in the matter: . . . sand and gravel pits....\\nId. at 3-4.\\nThe preamble to the entire Brookfield zoning ordinances stated that a comprehensive zoning plan was necessary \\\"to provide adequate light, pure air, and safety from fire and other dangers, to conserve the taxable value of land and buildings throughout the township, to avoid congestion in the public streets and highways and to promote the public health, safety, comfort, morals, and welfare.\\\" Id. at 3.\\nSmith challenged the constitutionality of Brook-field ordinance sec. 7(a)4 on the grounds that it provided insufficient guides to evaluate applications for sand and gravel pit permits. We determined that the ordinance was constitutional because the purposes in the preamble provided guidelines for the board to use when evaluating the proposed plan of operation submitted in the permit application. Id. at 7-8. The standards Kraemer considers inappropriate, requiring that the board \\\"provide for wise use of the county's resources\\\" and consider harm to \\\"public health, safety and welfare\\\" when evaluating the proposed operations plan, are no more general than those deemed adequate in Smith. We conclude that these standards do not constitute an unconstitutional delegation of legislative authority.\\nTo avoid a potential for confusion in future cases, we believe it is necessary to address a portion of the court of appeal's decision that is in error. The court of appeals misinterpreted ordinance sec. 7.04(2)(i)19.c. 1(d), which states:\\nThe board shall attach such conditions to each approved application as are necessary to assure that the operation will satisfy the standards set forth above. (Emphasis added.)\\nThe court of appeals stated that under this standard, if the Board determined that conditions were necessary to protect the bluffs, then it was the Board's duty to formulate such conditions. The reasoning of the court of appeals suggests that because the application was for a special exception permit, under ordinance sec. 7.04(2)(i)19.c.l(d) the Board had the burden to fashion conditions so that it could grant the permit to Kraemer.\\nThe Board did not have the burden of formulating conditions to enable Kraemer to obtain a special exception permit. A special exception use is only a permitted use when the standards prescribed in the ordinance are met. The applicant, not the Board, has the burden of showing that the permit meets these standards. Here, Kraemer did not meet its burden. Once the Board decides to approve an application, ordinance sec. 7.04(2)(i)19.c.l(d) enables the Board to fashion additional conditions to ensure compliance. This provision does not shift the burden to the Board to fashion conditions that would enable the applicant to obtain the permit.\\nThe only facet of the Board's actions that was questioned on certiorari was its choice of, and application of, law. We conclude that the Board correctly interpreted and relied on the authority granted to it by the applicable Sauk County ordinances. Accordingly, we reverse the decision of the court of appeals.\\nBy the Court. \\u2014 Decision reversed.\\nSection. 59.99(10), Stats, provides in relevant part:\\nAny person or persons, jointly or severally, aggrieved by any decision of the board of adjustment. . . may, within 30 days after the filing of the decision in the office of the board, commence an action seeking the remedy available by certiorari.\\nThe Ice Age Trail, a trail designated by Congress as a national scenic trail, crosses Kraemer's forty acre property.\\nKraemer sets forth arguments regarding each of the other three parts of certiorari review \\u2014 whether the Board kept within its jurisdiction, whether the Board's action was arbitrary or unreasonable, and whether the decision was reasonable in light of the evidence. However, Kraemer's arguments with respect to each of these additional parts of certiorari review merely repeat its initial argument that the Board relied on an incorrect theory of law. For instance, Kraemer states that the Board's action was arbitrary and unreasonable because it was not based on the correct legal standards. Thus, our analysis of whether the Board proceeded under a correct theory of law will address all of Kraemer's arguments and we need not address the other portions of certiorari review.\\nThis standard is not explicitly set forth in the ordinance.\\nGeneral standards are a common feature of zoning ordinances or enabling legislation in many states. See, e.g., Tustin Heights Ass'n v. Bd. of Supervisors of Orange County, 339 P.2d 914, 918, 924 (Cal. App. 1959); Davis v. Richardson, 507 S.W.2d 446, 447, 449 (Ky. 1974); Fratantuono v. Zoning Bd. of Review of Cranston, 159 A.2d 378, 381-383 (R.I.1960).\\nGenerally an applicant for a special exception permit has the burden of showing that the use meets the ordinance standards. Ziegler, 3 Rathkopfs The Law of Zoning and Planning \\u00a7 41.13, at 41-75. See also Cosmopolitan Nat'l Bank of Chicago v. Zoning Bd. of Appeals of Chicago, 380 N.E.2d 940, 942 (Ill. App. 1978); Johnson v. Bd. of Adjustment of West Des Moines, 239 N.W.2d 873, 885 (Iowa 1976); Application of Volunteers of America, Inc., 749 P.2d 549 (Okla. 1988).\"}"

wis/8666594.json

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+"{\"id\": \"8666594\", \"name\": \"John A. Casteel, a/k/a Tayr Kilaab Al Ghashiyan (Khan), Plaintiff-Appellant, v. Gary R. Mc Caughtry, Thomas Borten, Thomas Gozinske, William Lackey, Frank Mesa, Dan Pashke, Timothy Morris, Ray Fromolz and Thomas Nickel, Defendants-Respondents\", \"name_abbreviation\": \"Casteel v. Mc Caughtry\", \"decision_date\": \"1992-04-30\", \"docket_number\": \"No. 91-0218\", \"first_page\": \"758\", \"last_page\": \"773\", \"citations\": \"168 Wis. 2d 758\", \"volume\": \"168\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T19:13:11.443530+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Eich, C.J., Gartzke, P.J., and Dykman, J.\", \"parties\": \"John A. Casteel, a/k/a Tayr Kilaab Al Ghashiyan (Khan), Plaintiff-Appellant, v. Gary R. Mc Caughtry, Thomas Borten, Thomas Gozinske, William Lackey, Frank Mesa, Dan Pashke, Timothy Morris, Ray Fromolz and Thomas Nickel, Defendants-Respondents.\", \"head_matter\": \"John A. Casteel, a/k/a Tayr Kilaab Al Ghashiyan (Khan), Plaintiff-Appellant, v. Gary R. Mc Caughtry, Thomas Borten, Thomas Gozinske, William Lackey, Frank Mesa, Dan Pashke, Timothy Morris, Ray Fromolz and Thomas Nickel, Defendants-Respondents.\\nCourt of Appeals\\nNo. 91-0218.\\nSubmitted on briefs September 6, 1991. \\u2014\\nDecided April 30, 1992.\\n(Also reported in 484 N.W.2d 579.)\\nFor the plaintiff-appellant the cause was submitted on the brief of John A. Casteel, a/k/a Tayr Kilaab Al Ghashiyan (Khan), pro se, of Waupun.\\nFor the defendants-respondents the cause was submitted on the brief of James E. Doyle, attorney general, and Joanne F. Kloppenburg, assistant attorney general.\\nBefore Eich, C.J., Gartzke, P.J., and Dykman, J.\\nPetition to review granted.\", \"word_count\": \"3401\", \"char_count\": \"20691\", \"text\": \"GARTZKE, P.J.\\nJohn A. Casteel, a/k/a Tayr Kilaab Al Ghashiyan, an inmate at Waupun Correctional Institution, has appealed from an order dismissing his complaint against the warden and security director at Waupun and several Waupun employees whom he describes as \\\"jailers.\\\" Casteel brought this action under 42 U.S.C. sec. 1983 and the laws of Wisconsin. The trial court dismissed the complaint for failure to state a claim.\\nWhether the complaint states a claim turns on (1) the effect of Casteel's failure to allege he had exhausted his administrative remedies and had complied with a state notice of claim statute, sec. 893.82, Stats., and (2) the sufficiency of the allegations to plead a sec. 1983 claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We conclude that Casteel's failures to exhaust his remedies and to give notice of claim bar his state law claim but not his sec. 1983 claim, and his complaint states a claim under sec. 1983. We therefore affirm in part and reverse in part and remand for further proceedings.\\nCasteel's complaint alleges that on six occasions between March 1985 and January 1990, he was removed from the general prison population and placed in temporary lockup (TLU). Wisconsin Adm. Code sec. DOC 303.11 governs TLU. On each occasion, he alleges sec. DOC 303.11 was violated, in that he was not served with a copy of a conduct report before being placed in TLU, given a hearing on whether TLU was appropriate (sub. (2)), given an opportunity to respond as to why TLU was unnecessary and given the reasons for the TLU placement or the facts for the decision (subs. (2) and (5)), the security director did not review his TLU placement on the following work day (sub. (2)), and the defendants failed to properly review his TLU status every seven days (sub. (3)). He was not allowed to watch television, listen to the radio, have cosmetics, use tobacco or attend religious services, all of which caused him physical and mental suffering. He alleges that the defendants acted in bad faith and in disregard of their duties under the United States Constitution and the laws of Wisconsin. He specifically claims they violated the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. The complaint seeks a declaratory judgment that the practices complained of were illegal and unconstitutional, a permanent injunction preventing the defendants from continuing those practices, and damages.\\nThe defendants moved to dismiss the complaint. The trial court granted the motion because Casteel had failed to allege that he had exhausted his administrative remedies under the Inmate Complaint Review System, Wis. Adm. Code sec. DOC 310. The court did not determine whether the complaint otherwise stated a claim.\\nSECTION 1983 CLAIM\\nThe reason given by the tried court to dismiss the sec. 1983 claim, Casteel's failure to allege he had exhausted his administrative remedies, is insufficient. While this appeal was pending, the Wisconsin Supreme Court held that a plaintiff need not exhaust administrative remedies before bringing a sec. 1983 action in state court. Casteel v. Vaade, 167 Wis. 2d 1, 20-21, 481 N.W.2d 476, 484 (1992).\\nWe turn to whether Casteel's complaint states a sec. 1983 claim. Three kinds of sec. 1983 claims may be brought against the state under the Due Process Clause of the Fourteenth Amendment: first, for a state official's violation of defendant's rights under a specific protection in the Bill of Rights; second, a violation of substantive due process; and, third, a violation of procedural due process. Zinermon v. Burch, 494 U.S. 113, 125 (1990).\\nCasteel's complaint fails to allege a sec. 1983 claim of the first type. That he could not watch television, use his radio, or have cosmetic items or tobacco products are minor deprivations. Those deprivations do not violate the right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (restrictive and even harsh conditions are \\\"part of the penalty that criminal offenders pay for their offenses against society\\\"); Adams v. Pate, 445 F.2d 105, 109 (7th Cir. 1971). They are unrelated to any of the other amendments to the United States Constitution Casteel refers to in his complaint.\\nThe free exercise of religion is of course a First Amendment right. However, an inmate's right to practice religion may be infringed to the extent that the infringement is reasonably related to a legitimate peno-logical interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Wisconsin Adm. Code sec. DOC 303.11 has a legitimate penological interest.\\nThe main purpose of the section authorizing temporary lockup is to allow temporary detention of an inmate until it is possible to complete an investigation, cool down a volatile situation or hold a discipli nary hearing. The effort is to avoid punitive segregation without a prior hearing, while assuring that inmates can be separated from the general population when there is good reason to do so. The policy is to keep an inmate in TLU only as long as necessary and then either to release the inmate or put the inmate in segregation based on a disciplinary hearing which conforms to the provisions of this chapter.\\nAppendix to Wis. Adm. Code ch. 303, note: DOC 303.11.\\nRestrictions on an inmate's participation in general population programs while in TLU are based on the prison concerns for security and discipline reflected in Wis. Adm. Code sec. DOC 303.11(4)(a)-(e). Those concerns justify temporary limitations on religious practice.\\nCasteel's complaint fails to allege the second kind of sec. 1983 claim, violation of substantive due process. A violation of substantive due process pertains to violation of a fundamental right. Inmates have no fundamental right to remain in one part of a prison and not to be transferred to another. \\\"It is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.\\\" Hewitt v. Helms, 459 U.S. 460, 468 (1983). An inmate may be placed in segregation status if he is afforded procedural due process. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). Casteel's complaint fails to allege any other acts amounting to violations of a fundamental right.\\nWe next examine Casteel's complaint to determine whether it alleges a sec. 1983 claim of the third type described by the Zinermon court, violation of procedural due process. When a procedural due process violation is claimed and state action has occurred, the first question is whether the plaintiff has been deprived of a constitutionally protected interest in life, liberty or property. If such a deprivation occurred, we reach the next level of analysis: what process was provided and whether it was constitutionally adequate. Zinermon, 494 U.S. at 126.\\nCasteel claims that he possesses a constitutionally protected liberty interest created by Wis. Adm. Code sec. DOC 303.11. The liberty interest is staying out of and getting out of TLU. To create a protected liberty interest, a state law or rule must employ \\\"language of an unmistakenly mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed . . . and that [the challenged action] will not occur absent specified substantive predicates \\u2014\\\" Hewitt, 459 U.S. at 471-72 (citation omitted).\\nStated simply, the\\n\\\"State creates a protected liberty interest by placing substantive limitations on official discretion.\\\" Olim v. Wakinekona, 461 US [238, 249 (1983)] . . . [T]he most common manner in which a State creates a liberty interest is by establishing \\\"substantive predicates\\\" to govern official decisionmaking, Hewitt v. Helms, 459 US, at 472, . . . and, further, by mandating the outcome to be reached upon a finding that the relative criteria have been met.\\nKentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462 (1989).\\nThus, to create a constitutionally protected liberty interest, a statute or rule must (1) use mandatory language and (2) impose a substantive limitation on official discretion by mandating the outcome upon a finding that relative criteria had been met.\\nWisconsin Adm. Code sec. DOC 303.11 meets the first test. It uses mandatory language. Subsection (4) provides that \\\"[a]n inmate may be placed in TLU and kept there only if the decision maker is satisfied that it is more likely than not that one or more of the following is true: .\\\" In this context, \\\"may\\\" is mandatory, since it allows placing an inmate in TLU \\\"only if\\\" certain circumstances exist.\\nSubsection (2) contains mandatory language regarding review and termination of the placement once it has been made. It provides that the security director \\\"shall\\\" review placement on the next working day. Before that review occurs the inmate \\\"shall\\\" be provided with the reason for confinement and with an opportunity to respond. Review of the placement decision \\\"must\\\" include consideration of the inmate's response. If upon review it is determined that TLU is not appropriate, the inmate \\\"shall\\\" be released from TLU immediately. Subsection (3) provides that an inmate may not remain in TLU for more than twenty-one days unless the superintendent extends the period for cause.\\nWisconsin Adm. Code sec. DOC 303.11 also meets the second test for the creation of a constitutionally protected liberty interest. It imposes a substantive limitation on official discretion. The effect of sub. (4) is that an inmate cannot be placed in TLU unless the decision maker is \\\"satisfied\\\" that it is more likely than not that one or more of the specified circumstances exists. The decision maker possesses a large degree of discretion in deciding whether he or she \\\"is satisfied that it is more likely than not that one or more\\\" of the prerequisites listed in that subsection are true. But if the decision maker is satisfied that such is the case, then and only then may the decision maker place the inmate in TLU. That the decision maker possesses discretion in this regard does not prevent a protected liberty interest from arising in staying out of TLU. The presence of official discretion is not incompatible with the existence of a liberty interest when a certain result is required after the officer makes a discretionary determination. Board of Pardons v. Allen, 482 U.S. 369, 376 (1987).\\nNor does the inherently subjective nature of the decision under sub. (4) prevent an inmate from possessing a liberty interest. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12-13 (1979). If the decision maker is not \\\"satisfied\\\" that it is likely that one of the specified circumstances exists, placement in TLU is prohibited.\\nHaving concluded that Wis. Adm. Code sec. DOC 303.11(4) creates a liberty interest, the next question is what process has been afforded by the state to an inmate placed in TLU.\\nAs we read Casteel's complaint, he does not assert that the process to which he was entitled under Wis. Adm. Code sec. DOC 303.11(2), (3) and (5) is constitutionally deficient. Rather, he contends that he was not provided the process that was due him under those subsections. Under these circumstances, we need not decide whether the process due him under the rule is constitutionally sufficient. He was not afforded even that process.\\nWe conclude that Casteel's complaint states a claim under 42 U.S.C. sec. 1983 for violation of procedural due process, the third type of sec. 1983 claim outlined by the Zinermon court. The order dismissing that part of the complaint must be reversed and the matter remanded for further proceedings.\\nSTATE LAW CLAIM\\nCasteel's failure to allege his compliance with sec. 893.82(3), Stats., a notice of claim statute, bars his right to bring an action against defendants for damages under state law. Section 893.82(3) provides in relevant part:\\n[N]o civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employe's or agent's duties . . . unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved.\\nSection 893.82(3), Stats., imposes a condition precedent to the right to maintain an action for injury, damage or death. \\\"Failure to give the notice [required by that statute] is fatal to the action.\\\" Ibrahim v. Samore, 118 Wis. 2d 720, 726, 348 N.W.2d 554, 557 (1984). Compliance with a notice of claim statute must be pleaded to state a claim. Yotvat v. Roth, 95 Wis. 2d 357, 360, 290 N.W.2d 524, 527 (Ct. App. 1980). We conclude that Cas-teel has failed to state a claim under state law for damages.\\nWhether Casteel's complaint states a claim under Wisconsin law for the declaratory relief or injunction is another matter. Section 893.82(3), Stats., requires notice of claim within 120 days of the event causing \\\"the injury, damage or death giving rise to the civil action or civil proceeding.\\\" Casteel's claims for declaratory and injunc-tive relief do not arise out of injury, damages or death. For that reason, his failure to allege compliance with sec. 893.82(3) has no effect on his claim for declaratory relief and an injunction.\\nAn administrative remedy which is available to a party on his initiative, is relatively rapid, and will protect the parties claim of right should be used before proceeding to court. Nodell Inv. Corp. v. City of Glendale, 78 Wis. 2d 416, 424, 254 N.W.2d 310, 315 (1977). When administrative relief has not been pursued, as here, the exhaustion of administrative remedies doctrine bars judicial action. Id.\\nThe department of corrections has in place an Inmate Complaint Review System (ICRS). The ICRS exists to \\\"allow inmates to raise, in an orderly fashion, questions regarding rules, living conditions, and staff actions affecting institution living.\\\" Wisconsin Adm. Code sec. DOC 310.01(2)(a). With exceptions not pertinent to this case, the ICRS may be used to seek a change of any institutional policy or practice. Wisconsin Adm. Code sec. DOC 310.04(2). The doctrine of exhaustion of administrative remedies \\\"provides state agencies with the opportunity to correct their own errors and prevents premature judicial incursions into agency activities. In addition, the doctrine of exhaustion promotes judicial efficiency. Conflicts often are resolved without resort to litigation.\\\" Kramer v. Horton, 128 Wis. 2d 404, 418, 383 N.W.2d 54, 59, cert. denied, 479 U.S. 918 (1986).\\nThe department of corrections should be given an opportunity to correct whatever errors have or are continuing to occur with respect to TLU practices before Casteel may seek declaratory relief or an injunction from the courts. We conclude that because he failed to allege that he exhausted his remedy under the ICRS, his complaint does not state a claim for declaratory or injunctive relief.\\nBy the Court. \\u2014 Order affirmed in part; reversed in part and remanded for further proceedings.\\nDefendant Gary R. Me Caughtry is the warden and Thomas Borten is the security director. The persons identified as jailers are: Thomas Gozinske, William Lackey, Frank Mesa, Dan Pashke, Timothy Morris, Ray Fromolz and Thomas Nickel.\\nWisconsin Adm. Code sec. DOC 303.11 provides:\\n(1) An inmate may be placed in temporary lockup (TLU) by a security supervisor, security director, or superintendent.\\n(2) If the inmate is placed in temporary lockup by a security supervisor, the security director shall review this action on the next working day. Before this review and the review provided for in sub. (3), the inmate shall be provided with the reason for confinement in TLU and with an opportunity to respond, either orally or in writing. Review of the decision must include consideration of the inmate's response to the confinement. If, upon review, it is determined that TLU is not appropriate, the inmate shall be released from TLU immediately.\\n(3) No inmate may remain in TLU more than 21 days, except that the superintendent, with notice to the division administrator, may extend this period for up to 21 additional days for cause. The security director shall review the status of each inmate in TLU every 7 days to determine whether TLU continues to be appropriate. If upon review it is determined the TLU is not appropriate, the inmate shall be released from TLU immediately.\\n(4) An inmate may be placed in TLU and kept there only if the decision maker is satisfied that it is more likely than not that one or more of the following is true:\\n(a) If the inmate remains in the general population, the inmate will seek to intimidate a witness in a pending investigation or disciplinary action;\\n(b) If the inmate remains in the general population, he or she will encourage other inmates by example, expressly, or by their presence, to defy staff authority and thereby erode staff's ability to control a particular situation;\\n(c) If the inmate remains in the general population, it will create a substantial danger to the physical safety of the inmate or another;\\n(d) If the inmate remains in the general population, it will create a substantial danger that the inmate will try to escape from the institution; or\\n(e) If the inmate remains in the general population, a disciplinary investigation will thereby be inhibited.\\n(5) When an inmate is placed in TLU, the person who does so shall state the reasons on the appropriate form and shall include the facts upon which the decision is based. The inmate shall be given a copy of the form. Upon review, the security director shall approve or disapprove the TLU on the form.\\n(6) Conditions in TLU shall, insofar as feasible, be the same as those in the status from which the inmate came prior to TLU placement. An inmate who had been earning compensation shall continue to be compensated at the rate earned in his or her previous status, except that an inmate employed by corrections industries shall be compensated in accordance with s. DOC 313.08. If 1983 Wis. Act 528 does not apply to the inmate, he or she shall continue to earn extra good time credit. The inmate may be required to wear mechanical restraints, as defined in s. DOC 306.09(1), while outside the cell if the superintendent or designee determines that the use of mechanical restraints is necessary to protect staff or inmates or to maintain the security of the institution.\\nWe disagree with the analysis in Russ v. Young, 895 F.2d 1149, 1153-54 (7th Cir. 1990), which held that because sub. (4) provides that an inmate \\\"may\\\" be placed in TLU, it employs discretionary rather than the unmistakably mandatory language required under Hewitt. The Seventh Circuit has since questioned its analysis in Russ. Smith v. Shettle, 946 F.2d 1250, 1252-53 (7th Cir. 1991). We also disagree with the Russ court's conclusion that a constitutionally protected liberty interest in staying and getting out of TLU does not exist since the rule allows removal of an inmate from the general population when the charging officer \\\"subjectively believes\\\" it is more likely than not that any of the criteria set forth in the rule are met, regardless of whether in fact they are actually met. If the charging officer subjectively believes it is not more likely that any of the criteria had been met, then the rule prohibits placing an inmate in TLU. If, upon review, it is determined that TLU is not appropriate, the inmate \\\"shall be released from TLU immediately.\\\"\"}"

wis/8666638.json

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+"{\"id\": \"8666638\", \"name\": \"In the Matter of Disciplinary Proceedings Against James J. Casey, Jr., Attorney at Law\", \"name_abbreviation\": \"In re Disciplinary Proceedings Against Casey\", \"decision_date\": \"1993-03-19\", \"docket_number\": \"No. 92-2346-D\", \"first_page\": \"341\", \"last_page\": \"343\", \"citations\": \"174 Wis. 2d 341\", \"volume\": \"174\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:53:36.781948+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Disciplinary Proceedings Against James J. Casey, Jr., Attorney at Law.\", \"head_matter\": \"In the Matter of Disciplinary Proceedings Against James J. Casey, Jr., Attorney at Law.\\nSupreme Court\\nNo. 92-2346-D.\\nFiled March 19, 1993.\\n(Also reported in 496 N.W.2d 94.)\", \"word_count\": \"638\", \"char_count\": \"4025\", \"text\": \"PER CURIAM.\\nAttorney disciplinary proceeding; attorney's license suspended.\\nWe review the recommendation of the referee that the court suspend the license of James J. Casey, Jr. to practice law in Wisconsin for 60 days as discipline for professional misconduct. That misconduct consisted of Attorney Casey's having on three occasions appropriated client retainers to his own use rather than giving them to the law firm where he was employed which was entitled to them. While the court determines, on the basis of discipline previously imposed for similar misconduct, that the recommended license suspension is appropriate for imposition here, we take this opportunity to put members of the bar on notice that in the future the court will treat an attorney's misappropriation of funds belonging to another lawyer, associate or firm in practice with that lawyer no differently than it treats misappropriation of funds belonging to a lawyer's client. In each case, the lawyer violates the basic professional duty of trust, not only as attorney but also as fiduciary, and a refusal to fulfill that responsibility will be disciplined severely.\\nAttorney Casey was admitted to practice law in Wisconsin in 1990 and practices in Milwaukee. He has not previously been the subject of an attorney disciplinary proceeding. Based on the parties' stipulation to the relevant facts, the referee, Attorney John Schweitzer, made the following findings.\\nDuring the first six months of 1991, while employed as an associate with a LaCrosse law firm, Attorney Casey appropriated to his own use one $300 retainer and two $1,000 retainers he had received from clients of the law firm, rather than turning those retainers over to the firm as required by his employment agreement. The referee concluded that Attorney Casey thereby engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).\\nAs discipline for that professional misconduct, the referee recommends that the court impose a 60-day license suspension, to which Attorney Casey and the Board had stipulated. In making the recommendation, the referee observed that, had Attorney Casey defrauded clients or converted client funds to his own use, he might have recommended substantially different, presumably more severe, discipline. Nevertheless, he considered the business relationship between Attorney Casey and his law firm as one of trust and fiduciary responsibility.\\nWe adopt the referee's findings and conclusions and accept the recommendation of a 60-day license suspension as discipline for Attorney Casey's professional misconduct. However, lest attorneys rely on our disposition of this proceeding or prior proceedings involving similar attorney misconduct, we direct the State Bar of Wisconsin to bring to the attention of its members the notice set forth at the outset of this opinion.\\nIt Is Ordered that the license of James J. Casey, Jr. to practice law in Wisconsin is suspended for a period of 60 days, commencing May 1, 1993.\\nIt Is Further Ordered within 60 days of the date of this order James J. Casey, Jr. pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding in the amount of $1,308.18, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of James J. Casey, Jr. to practice law in Wisconsin shall remain suspended until further order of the court.\\nIt Is Further Ordered that James J. Casey, Jr. comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.\\nSCR 20:8.4 provides:\\nMisconduct\\nIt is professional misconduct for a lawyer to:\\n(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\"}"

wis/8666673.json

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+"{\"id\": \"8666673\", \"name\": \"In the Matter of Disciplinary Proceedings Against James W. Cassidy, Attorney at Law\", \"name_abbreviation\": \"In re Disciplinary Proceedings Against Cassidy\", \"decision_date\": \"1992-11-12\", \"docket_number\": \"No. 91-2285-D\", \"first_page\": \"600\", \"last_page\": \"612\", \"citations\": \"172 Wis. 2d 600\", \"volume\": \"172\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:41:16.207964+00:00\", \"provenance\": \"CAP\", \"judges\": \"ABRAHAMSON, J., took no part.\", \"parties\": \"In the Matter of Disciplinary Proceedings Against James W. Cassidy, Attorney at Law.\", \"head_matter\": \"In the Matter of Disciplinary Proceedings Against James W. Cassidy, Attorney at Law.\\nSupreme Court\\nNo. 91-2285-D.\\nSubmitted on briefs October 8, 1992.\\nDecided November 12, 1992.\\n(Also reported in 493 N.W.2d 362.)\\nFor the Board of Attorneys Professional Responsibility there were briefs by John W. Roethe, Edgerton.\\nFor James W. Cassidy there was a brief by Daniel W. Hildebrand and Ross & Stevens, S.C., Madison.\\nAmicus curiae brief was filed by William T. Read, Madison for Lawyers Concerned For Lawyers, Inc.\", \"word_count\": \"3541\", \"char_count\": \"22173\", \"text\": \"PER CURIAM.\\nAttorney disciplinary proceeding; attorney's license revoked.\\nThis is an appeal by the Board of Attorneys Professional Responsibility (Board) from the referee's recommendation of discipline to be imposed upon Attorney James W. Cassidy for his professional misconduct. That misconduct included conversion of client funds to be held in trust, failure to maintain adequate trust account records and borrowing money from clients without giving them an opportunity to obtain the advice of independent counsel in those loan transactions. As discipline for that misconduct, the referee recommended that the court suspend Attorney Cassidy's license to practice law in Wisconsin for an indefinite period and permit him to apply for license reinstatement after one year, provided the Board certifies that he is physically and mentally fit to practice law and that he has repaid his indebtedness to a former client from whom he had borrowed money. The Board contended that the seriousness of Attorney Cassidy's misconduct requires revocation of his license to practice law.\\nWe determine that the nature and extent of Attorney Cassidy's professional misconduct calls for the revocation of his license. His taking of client funds committed to his trust, his self-dealing with clients and misrepresentations to them and his use of his client trust account to shield his own funds from creditors establish his unfitness to be licensed to represent others in the legal system. By that misconduct, Attorney Cassidy has demonstrated a propensity to be dishonest, which is incompatible with the legal profession.\\nAttorney Cassidy was admitted to practice law in Wisconsin in 1954 and practiced in Madison prior to the temporary suspension of his license the court imposed in October, 1992, in another disciplinary proceeding. He has not previously been the subject of an attorney disciplinary proceeding. The referee in this proceeding, Attorney Rudolph P. Regez, made the following findings of fact, which are not in dispute.\\nIn June, 1988 a man retained Attorney Cassidy to represent him in a legal separation action. During the course of the action, the client gave Attorney Cassidy a $700 check made payable to Attorney Cassidy's trust account for payment of a bill the parties owed to a clinic. Attorney Cassidy deposited that check into his business account rather than into his trust account and used the client's funds for his own business purposes.\\nThe client was held in contempt of court for failure to pay the bill and subsequently paid it from other funds. Thereafter, he asked Attorney Cassidy for the return of the $700 and, when it was not forthcoming, filed a grievance with the Board. Attorney Cassidy then sent the client a trust account check for $700 drawn on his trust account, although apparently on another client's funds, as the client's money was no longer in that account. Responding to the Board's inquiry into the grievance, Attorney Cassidy stated that he had deposited the $700 check into his trust account and the money was not disbursed because the client had given no instructions concerning what to do with it.\\nThe referee concluded that Attorney Cassidy's deposit of the client's funds into his business account constituted a failure to hold client funds in trust, in violation of SCR 20:1.15(a); his statements to the Board that he had deposited the check into his trust account constituted a misrepresentation, in violation of SCR 22.07(2); his conversion of the client's $700 to meet business obligations violated SCR 20:8.4(c).\\nIn the course of its investigation of this matter, the Board examined Attorney Cassidy's trust account records and bank statements covering the period from November, 1988 through September, 1990. Attorney Cassidy stated that he maintained no trust account cash receipts journal, no trust account ledger and no disbursement journal during that time and that his record-keeping consisted of notations he made in each client file of amounts received from and disbursed to or for clients. The Board also discovered that amounts noted as belonging to clients were not always on deposit in Attorney Cassidy's trust account. Notwithstanding those facts, Attorney Cassidy certified to the State Bar in 1988 and 1989 that he had complied with the trust account record-keeping requirements of SCR 20:1.15(e).\\nThe referee concluded that Attorney Cassidy's failure to maintain complete trust account records violated SCR 20:1.15(e) and that his certifications to the State Bar constituted misrepresentations, in violation of SCR 20:8.4(c), and also violated the. requirement of SCR 20:1.15(g).\\nThe Board's examination also disclosed that Attorney Cassidy's trust account balance was, at times, far below the amount of client funds he was to be holding in trust. For example, the trust account balance was $.77 on October 12, 1989, at which time Attorney Cassidy had been entrusted with $11,900 of one client's funds and $3,000 of another's; on July 17, 1989 his trust account balance was approximately $35, when he had been entrusted with funds of three clients totaling $21,400. Admitting that he had used client funds to pay his own personal and business expenses, Attorney Cassidy stated that, in all, he had converted funds of five clients amounting to $28,100 and that he has repaid all of those funds to the clients.\\nDuring the period from November, 1988 through May, 1990 Attorney Cassidy made 68 deposits into his trust account totaling over $162,000 without making any reference to the source of those funds. At the time of the disciplinary hearing, he was unable to identify the source of each of those deposits. Moreover, during that period, Attorney Cassidy borrowed more than $120,000 from individuals, some of which money he deposited in his trust account, and was unable to identify which of the deposits represented loan proceeds and which were client funds. Attorney Cassidy stated that he had deposited the proceeds of personal loans into his client trust account in order to shield those funds from creditors, as his other bank accounts were then subject to garnishment by the Internal Revenue Service. In addition to his failure to record the source of funds he deposited in his trust account, Attorney Cassidy was unable to identify which of the 136 trust account checks he had drawn to himself totaling $105,620 were for fees to which he was entitled and which were withdrawals of loan proceeds.\\nThe referee concluded that Attorney Cassidy's conversion of client funds held in trust for five clients constituted conduct involving dishonesty, in violation of SCR 20:8.4(c); his commingling of client funds with his personal funds violated SCR 20:1.15(a); his depositing of personal funds into his trust account to shield them from creditors constituted conduct involving deceit, in violation of SCR 20:8.4(c).\\nAttorney Cassidy testified that as of January 8, 1991 he had failed to timely file federal and state income tax returns for 1989 but he did so at some time prior to January 22,1992. The referee concluded that his failure to timely file income tax returns and pay the tax due violated the court's rule enunciated in State v. Roggensack, 19 Wis. 2d 38, 119 N.W.2d 412 (1963).\\nThe remaining misconduct considered in this proceeding concerns Attorney Cassidy's having obtained loans from three clients without disclosing to them the conflict of interest inherent in such dealings and without giving them the opportunity to obtain independent advice in the transactions. In January, 1987, he represented a woman in the sale of her home and when she received the proceeds of the sale, he asked her if he could borrow money from her to pay large bills he had incurred as a result of surgery. The client loaned him $5,000 and he executed a promissory note payable six months thereafter. Attorney Cassidy and the client extended that note for an additional eight months. Thereafter, Attorney Cassidy altered the terms of the note to provide for monthly principal payments but the client did not sign that amendment and had not given written consent to the revision. As of April 1, 1991, Attorney Cassidy had repaid the client $1,400, leaving an unpaid balance of $6,150.\\nThe referee concluded that Attorney Cassidy's failure to give the client a reasonable opportunity to seek the advice of independent counsel when he proposed to borrow money from her and when he revised the terms of the note and his failure to obtain her written consent to the revised terms violated SCR 20:1.8(a)(2) and (3), as well as former SCR 20.27.\\nIn 1987, a man retained Attorney Cassidy to represent him in a personal injury matter. Soon thereafter, the client gave Attorney Cassidy several settlement checks he had received pursuant to a divorce judgment. Attorney Cassidy told the client he could invest the settlement money for him at a stated rate of interest for six months while the client considered how to invest the funds. Several months after the client had given Attorney Cassidy the proceeds of the divorce settlement, Attorney Cassidy executed a promissory note in the amount of $21,000 at the rate of interest he had stated to the client concerning the proposed investment of his funds. Prior to giving that note to the client, however, Attorney Cassidy did not disclose to the client that he had taken the funds as a personal loan.\\nAttorney Cassidy failed to pay the note when due and four months later executed a second note in the amount of $16,500. At no time did Attorney Cassidy tell the client that he had a conflict of interest in either loan transaction or advise the client that he should seek separate legal counsel in the matter. Moreover, Attorney Cassidy had not obtained the client's consent in writing to the personal loan at the outset. By the time of the disciplinary hearing, Attorney Cassidy had repaid the client in full.\\nThe referee concluded that Attorney Cassidy's use of the client's settlement funds as a personal loan after representing to the client that he would invest those funds on the client's behalf constituted conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of former SCR 20.04(4), and that his entering into a business transaction with the client without obtaining the client's written consent and giving the client a reasonable opportunity to seek the advice of independent counsel violated SCR 20:1.8(a)(2) and (3).\\nIn 1988, Attorney Cassidy represented a man who was the beneficiary of his father's estate. When the client received a settlement check from the estate, Attorney Cassidy asked him to lend him $2,500, for which he executed a promissory note. Attorney Cassidy did not obtain the client's written consent to the conflict of interest involved in the transaction and did not provide the client an opportunity to seek the advice of independent legal counsel. At the disciplinary hearing, the client testified that $50 of the amount remained unpaid.\\nIn considering the discipline to recommend as a sanction for the totality of Attorney Cassidy's misconduct, the referee noted the following mitigating factors, which he termed \\\"compelling\\\": Attorney Cassidy's remorse and admitted shame, his repayment of the client loans, his restitution of all trust funds without loss to clients other than their loss of the use of their funds, his medical condition that led to heart surgery and his alcoholism. The referee deemed Attorney Cassidy's misrepresentation to the Board concerning the deposit of client funds into his trust account mitigated by the \\\"chaotic\\\" condition of that account and Attorney Cassidy's records.\\nIn his report, the referee addressed Attorney Cas-sidy's attempt to establish that his misconduct resulted from alcoholism. The referee noted that Attorney Cas-sidy's contention was controverted by the testimony of a doctor who, while confirming that Attorney Cassidy is an alcoholic, was unable to conclude that his condition caused his trust fund conversions or other misconduct. The doctor stated that medical tests established Attorney Cassidy's alcoholism but \\\"in no way did his misconduct result from that disease.\\\" Upon the record, then, the referee concluded that Attorney Cassidy's actions were the result of desperate financial circumstances: his house and car were subject to foreclosure and repossession and he was the defendant in numerous legal actions, which resulted in unsatisfied money judgments against him.\\nExpressing his belief that Attorney Cassidy's misconduct calls for a \\\"supervisory suspension\\\" rather than license revocation, the referee recommended that Attorney Cassidy's license be suspended indefinitely and that he be permitted to apply for reinstatement after one year, provided the Board certifies that he is physically and mentally fit to practice law and that he has satisfied his indebtedness to the client whose loan he has not fully repaid. The referee also recommended that Attorney Cassidy be required to pay the costs of this proceeding.\\nIn its appeal from that recommendation, the Board contended that, by converting or otherwise misusing client funds in large amounts and over a long period of time, Attorney Cassidy established a pattern of conduct amounting to theft. Further, the Board argued the egregious nature of Attorney Cassidy's solicitation of loans from persons who had placed their trust in him by retaining him as their attorney. In order to obtain money, Attorney Cassidy induced clients to make loans to him without first advising them of his conflict of interest in the proposed transactions and without advising them of their need to get independent legal advice and without giving them an opportunity to procure independent counsel to advise them. In one case, the Board noted, Attorney Cassidy made an outright misrepresentation to a client to induce the client to give him money, telling the client he would invest the client's funds for him, when in fact he \\\"borrowed\\\" the money without informing the client until several months later.\\nIn respect to Attorney Cassidy's medical condition, the Board took the position that the referee improperly considered his alcoholism a mitigating factor for the reason that it was not found to be the cause of his misconduct. Indeed, the referee noted the medical testimony that Attorney Cassidy's misconduct was not caused by alcoholism. Further, the Board emphasized, the court has refused to consider alcoholism a mitigating factor in cases involving an attorney's misappropriation of client funds held in trust.\\nOn the basis of prior cases, the Board asserted that when alcoholism has been considered in mitigation of the severity of discipline to be imposed for an attorney's misconduct, the attorney was a recovered or recovering alcoholic who had recognized the problem, sought treatment for it and established a period of abstinence from alcohol. Here, however, the doctor testified that Attorney Cassidy had not \\\"come to grips\\\" with his alcoholism, had not sought medical treatment, was not abstaining from alcohol and had not been identified as a recovered or a recovering alcoholic. The doctor further testified that there was no certainty that Attorney Cassidy's misconduct would not recur.\\nThe Board correctly asserted the requirement of causation for alcoholism properly to be considered a mitigating factor in attorney misconduct. See, Disciplinary Proceedings Against Glasschroeder, 113 Wis. 2d 672, 335 N.W.2d 621 (1983), Disciplinary Proceedings Against Peckham, 115 Wis. 2d 494, 340 N.W.2d 198 (1983), Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984), Disciplinary Proceedings Against Wood, 122 Wis. 2d 610, 363 N.W.2d 220 (1985), and Disciplinary Proceedings Against Fay, 123 Wis. 2d 73, 365 N.W.2d 13 (1985). Attorney Cassidy argued unsuccessfully that the referee's consideration of his alcoholism as a mitigating factor was proper, for he could not contend that the alcoholism was found to have caused his misconduct but only that, as an addiction specialist testified, it played a role in the misconduct and was a factor in his behavior.\\nMoreover, Attorney Cassidy's assertion that he has attended meetings of Lawyers Concerned for Lawyers and, in most instances, has avoided drinking is unpersuasive in light of the report of the addiction specialist who examined Attorney Cassidy on January 10, 1992 prior to the disciplinary hearing and noted that, as of that time, Attorney Cassidy had not made any effort to address his alcohol problem.\\nWhile the court is sensitive to the problems of the attorney suffering from alcoholism and, under appropriate circumstances, takes into consideration in imposing discipline the effect of that discipline to encourage the rehabilitation of attorneys who are alcoholics, the facts before us do not support Attorney Cassidy's request that we do so here by accepting the referee's disciplinary recommendation. Attorney Cassidy's multiple acts of professional misconduct share a common basis: dishonesty. That dishonesty has not been shown to have been caused by his alcoholism. Moreover, Attorney Cassidy could not demonstrate that he is seriously undergoing treatment and has achieved any degree of success in being rehabilitated. The protection of the public from Attorney Cassidy's dishonesty and from similar misconduct by other attorneys demands that Attorney Cas-sidy's license to practice law be revoked.\\nIt Is Ordered that the license of James W. Cassidy to practice law in Wisconsin is revoked, effective the date of this order.\\nIt Is Further Ordered that within 60 days of the date of this order James W. Cassidy pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding.\\nIt Is Further Ordered that James W. Cassidy comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.\\nABRAHAMSON, J., took no part.\\nSCR 20:1.15 provides:\\nSafekeeping property.\\n(a) A lawyer shall hold in trust, separate from the lawyer's own property, property of clients or third persons that is in the lawyer's possession in connection with a representation....\\nSCR 22.07 provides:\\nInvestigation.\\n(2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.\\nSCR 20:8.4 provides:\\nMisconduct\\nIt is professional misconduct for a lawyer to:\\n(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\\nSCR 20:1.15 provides:\\nSafekeeping property.\\n(e) Complete records of trust account funds and other trust properly shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the dafe and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also be maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.\\n(g) A member of the State Bar of Wisconsin shall file with the State Bar annually, with payment of the member's State Bar dues or upon such other date as approved by the Supreme Court, a certificate stating whether the member is engaged in the private practice of law in Wisconsin and, if so, the name of each bank, trust company, credit union or savings and loan association in which the member maintains a trust account, safe deposit box, or both, as required by this section. Bach member shall explicitly certify therein that he or she has complied with each of the record-keeping requirements set forth in paragraph (e) hereof.... The filing of a false certificate is unprofessional conduct and is grounds for disciplinary action....\\nSCR 20:1.8 provides:\\nConflict of interest: prohibited transactions\\n(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:\\n(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and\\n(3) the client consents in writing thereto.\"}"

wis/8666717.json

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+"{\"id\": \"8666717\", \"name\": \"In the Matter of Disciplinary Proceedings Against William W. Ward, Attorney at Law\", \"name_abbreviation\": \"In re Disciplinary Proceedings Against Ward\", \"decision_date\": \"1993-05-11\", \"docket_number\": \"No. 92-0646-D\", \"first_page\": \"1\", \"last_page\": \"13\", \"citations\": \"176 Wis. 2d 1\", \"volume\": \"176\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:44:11.730650+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Disciplinary Proceedings Against William W. Ward, Attorney at Law.\", \"head_matter\": \"In the Matter of Disciplinary Proceedings Against William W. Ward, Attorney at Law.\\nSupreme Court\\nNo. 92-0646-D.\\nSubmitted on briefs April 28, 1993.\\nDecided May 11, 1993.\\n(Also reported in 499 N.W.2d 172.)\\nFor William Ward there were briefs by Richard L. Kaiser and William A. Pangman & Associates, Waukesha.\\nFor the Board of Attorneys Professional Responsibility there was a brief by Charles S. Blumenfield, Milwaukee.\", \"word_count\": \"3327\", \"char_count\": \"20305\", \"text\": \"PER CURIAM.\\nAttorney disciplinary proceeding; attorney's license suspended.\\nAttorney William W. Ward appealed from the finding of the referee that, by his conduct as personal representative and attorney in an estate, he attempted to convert assets of that estate. He also appealed from the referee's recommendation that his license to practice law be suspended for two years as discipline for his professional misconduct in that estate, including his attempt to convert estate assets.\\nThe referee's finding that Attorney Ward attempted to convert estate assets has not been shown to be clearly erroneous and, consequently, we adopt that finding. We determine that the recommended two-year license suspension is appropriate discipline to impose for Attorney Ward's professional misconduct considered in this proceeding. In addition to his attempt to convert estate assets, that misconduct included Attorney Ward's failure to transfer ownership of estate assets to the beneficiary to whom they belonged, obtaining three adjournments of the probate proceeding by falsely representing to the court that he had taken actions in respect to estate assets, making false statements in papers he filed with the court, failing to keep client property in trust, making misrepresentations to the beneficiary, the Board of Attorneys Professional Responsibility (Board), and others concerning actions he had taken in regard to estate assets and failing to produce documents requested by the Board during its investigation of his conduct in the matter. By that misconduct, Attorney Ward violated his fundamental professional obligations to deal fairly and honestly with his clients and the court and to pursue diligently those matters for which he has been retained.\\nAttorney Ward was admitted to practice law in Wisconsin in 1952 and practices in Milwaukee. He has not previously been the subject of an attorney disciplinary proceeding.\\nThe referee, Attorney Stanley Hack, made findings of fact concerning Attorney Ward's conduct in the probate of an estate commenced in February, 1987. A 78-year-old woman retained him to probate the estate of her twin sister, of which she was the sole beneficiary under the decedent's will. From the beginning of the representation, the client was accompanied and assisted by a close personal friend.\\nAttorney Ward commenced informal administration of the estate and was appointed personal representative after the client declined to act in that capacity. As the death of the sister had occurred almost one year prior to his being retained, Attorney Ward promptly made a tender of inheritance tax. In response to the probate court's subsequent order to show cause, Attorney Ward filed the inventory on January 21, 1988, disclosing a gross estate of $226,000.\\nThe probate court sent Attorney Ward a notice on April 27, 1988 adverting to the statutory 18-month time limit to conclude the estate and, when there was no further activity in it, the court on September 29, 1988 ordered him to show cause why the estate was not closed. After the hearing on that order had been adjourned for almost one year, Attorney Ward filed a closing certificate, a certificate determining inheritance tax and a petition requesting further adjournment of the hearing on the court's order. The hearing was adjourned first to January 4 and then to October 4,1990. Attorney Ward filed a second request for adjournment and the matter was set for December 6,1990, at which time Attorney Ward appeared before the probate court to obtain an additional extension of time, stating that everything was done on the estate except for redemption of a $5,000 savings bond, which \\\"was in the mail\\\" and \\\"expected momentarily.\\\" The court granted a 60-day \\\"final adjournment.\\\" In each of the two notarized petitions for adjournment and at his appearance before the court, Attorney Ward asserted that certain government bonds had been surrendered for reissue or payment that had not yet been received. In fact, however, Attorney Ward had not surrendered any of the bonds and they remained in his possession.\\nOn February 6, 1991, the last day of the \\\"final adjournment,\\\" Attorney Ward filed with the court a receipt signed by the estate's sole beneficiary stating that she had received her full interest in the estate. Together with that receipt, Attorney Ward filed a personal representative's statement asserting that the estate's assets had been distributed. In fact, on that date the beneficiary had received only a copy of a deed to property which she and her sister had owned jointly; Attorney Ward had not redeemed or transferred government bonds with a value of more than $100,000 and had not closed or transferred eight bank accounts totaling $165,000. In addition, Attorney Ward had not given the beneficiary the contents of her sister's safe deposit box, which included gold pieces, silver coins and jewelry.\\nWhen Attorney Ward undertook the representation in this matter, there were 125 savings bonds in that safety deposit box. Soon after commencing the informal administration, he removed those bonds and kept them in an envelope in a safe at his home, together with his personal property. Throughout his representation of the estate, Attorney Ward did nothing with the bonds. At the disciplinary hearing, he testified he did not have the certified copies of his domiciliary letters he would need to obtain the transfer of the bonds. In addition to failing to redeem or transfer the bonds, Attorney Ward failed to file income tax returns for the estate for 1989 and 1990.\\nOn the basis of that conduct and the fact that he had no explanation for it other than that he intended to distribute the estate's assets but was uncertain how to proceed under the circumstances, the referee found that Attorney Ward attempted to convert the estate's assets \\\"by arranging matters in such a way that, following certain deaths [of the beneficiary and her close friend who was assisting her in the estate], no one with an interest in the estate would be aware that assets had not been distributed.\\\"\\nDuring the course of his representation in this matter, Attorney Ward made several statements to the beneficiary that the estate would be closed within a few weeks and at one point told her friend it would be closed within six weeks. When the friend learned the estate was not closed within that time, she wrote Attorney Ward reminding him of his promise. He did not respond to her letter. When the beneficiary told her friend Attorney Ward had her sign some papers on February 6, 1991 which she did not understand, the friend asked Attorney Ward what those papers were. He told her it was merely a power of attorney for tax purposes; he did not tell her he'd had the beneficiary sign a receipt for all of the estate assets.\\nAfter the client's friend filed a grievance and the Board asked for his reply, Attorney Ward did not disclose all of the facts regarding the status of the estate. Specifically, even though he had closed the estate on February 6,1991, he told the Board the estate was still open, as all of the assets had not been distributed. Regarding that distribution, he misrepresented to the Board that he could and would complete the estate in a short period of time.\\nDuring its investigation of this matter, the Board subpoenaed Attorney Ward for a deposition, directing him to produce a complete copy of his file in the estate matter. Although he represented to the Board that the file he produced at the deposition complied with the subpoena, he did not produce a separate tax file he maintained for the estate.\\nOn the basis of those facts, the referee concluded that Attorney Ward violated the Rules of Professional Conduct for Attorneys as follows:\\n\\u2014 His failure to file the estate inventory, close the estate, redeem or transfer the bonds, close the bank accounts, transfer the personal property in the safe deposit box and file estate income tax returns for two tax years constituted neglect of the estate matter and failure to diligently pursue it, in violation of SCR 20.32(3) and 20:1.3.\\n\\u2014 His false statements in the beneficiary's receipt, his personal representative's statement and his two petitions for adjournment, all of which were filed with the probate court, constituted misconduct involving dishon esty, fraud, deceit and misrepresentation, in violation of SCR 20:3.3(a)(l) and 8.4(c).\\n\\u2014 His retaining the estate's government bonds in the safe at his residence constituted a failure to hold client property in trust, separate from his own property, in violation of SCR 20:1.15(a).\\n\\u2014 His failure to promptly deliver property and funds to a client which the client was entitled to receive violated SCR 20:1.15(b).\\n\\u2014 His attempt to convert estate assets by arranging the estate matters so that, after the deaths of the beneficiary and her friend, no one would be aware that the assets had not been distributed constituted an attempt to engage in criminal conduct, in violation of SCR 20:8.4(b), thus violating SCR 20:8.4(a).\\n\\u2014 His statements to the beneficiary, to her friend and to the Board that he had submitted the government bonds for reissue or redemption constituted conduct involving dishonesty, fraud, deceit of misrepresentation, in violation of SCR 20:8.4(c).\\n\\u2014 His assertion to the Board on two occasions that the estate was still pending, when he had closed it, constituted a failure to cooperate with the Board in its investigation, in violation of SCR 22.07(2).\\n\\u2014 His failure to produce the tax material relating to the estate in response to the Board's subpoena for his deposition and his statement that the file he produced was the estate file constituted conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).\\n\\u2014 His false statement to the client's friend concerning the nature of the document the client had signed constituted a false statement of material fact, in violation of SCR 20:4.1(a), 20:8.4(c), 20:1.3, and 20:l.4(a).\\n\\u2014 His false statements to the court concerning the status of the estate and the bonds in it violated SCR 20:3.3(a)(1) and his failure to make reasonable efforts to expedite the litigation consistent with the beneficiary's interest violated SCR 20:3.2.\\nA lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.\\nAs discipline for that misconduct, the referee recommended that the court suspend Attorney Ward's license to practice law for two years. In making that recommendation, the referee explicitly took into account the seriousness of the misconduct, citing the age of the estate's beneficiary, the nature of its assets, the combination of Attorney Ward's action and inaction, the sworn statements he had made to the court and \\\"the many lost opportunities to resolve or avoid some or all of the problems.\\\" The referee noted that the effort required to complete the relatively simple estate would have been less than that Attorney Ward expended to obtain the delays in its completion. The referee considered as a mitigating factor that Attorney Ward has not been the subject of a disciplinary proceeding throughout his 40 years of practice.\\nIn the course of the disciplinary proceeding, Attorney Ward stipulated to much of the misconduct concerning his handling of the estate and his misrepresentations to the beneficiary, her friend and the court concerning it. The only finding of fact concerning his misconduct challenged in his appeal is the referee's finding that he attempted to convert the assets of the estate. He incorrectly asserted that the \\\"finding\\\" was really a conclusion of law and, consequently, not binding on the court, as would be a finding of fact, provided it were not \\\"clearly erroneous.\\\"\\nAttorney Ward argued that the evidence in the record is insufficient to support the referee's determination that he had attempted to convert estate assets. It is Attorney Ward's position that, after he had failed to give the probate of the estate the attention it required, his concern about the \\\"embarrassment\\\" he would suffer if he were removed as attorney caused him to engage in the more serious misconduct of making misrepresentations to the court concerning his actions in the estate.\\nThe inference drawn by the referee that Attorney Ward was in the process of attempting to convert estate assets is not based on mere conjecture but is reasonably premised on numerous facts of record. Except for giving the beneficiary a deed to real estate she and the decedent jointly owned, Attorney Ward did nothing to transfer ownership of the estate assets to the beneficiary to whom they belonged. It is significant that he did not submit even one savings bond for redemption during the four years he was supposed to be probating the estate. Even more significantly, he did not close even one of the eight bank accounts and turn over the balance to the beneficiary. Moreover, he did not give the beneficiary any of the personal property located in the safe deposit box, not even the decedent's jewelry.\\nThose facts do not support Attorney Ward's claim that he merely neglected or even ignored this estate. On three separate occasions he sought and obtained adjournment of the probate court's proceeding in the estate and he did so by falsely representing to the court that he had taken the actions in respect to the savings bonds that he knew he was required to take but had not taken.\\nAlthough Attorney Ward did not convert the assets to his own use to the extent of using them for his own personal purposes, he did intentionally exert control over those assets for four years, consciously depriving the beneficiary of them. His argument that the beneficiary did not need the assets, as she lived a modest lifestyle, is disingenuous. His refusal to turn over even the least valuable piece of personal property to the beneficiary deprived the very person who retained him to act in the estate of enjoying it. Furthermore, even though she may not have had needed the money to which she was entitled, the beneficiary may well have desired to make a gift of it to a friend, a relative or a charity. Attorney Ward's intentional refusal to place those funds at the beneficiary's disposal prevented her from doing so.\\nThus, while he did not spend any of the money in the estate's bank accounts or from its savings bond for his own purposes, Attorney Ward retained control of those funds well beyond the time necessary to see to their distribution in accordance with the testator's will and he made sure the beneficiary could not use those funds for her own purposes for a period of four years. Attorney Ward also made sure the probate court did not know he was continuing to deprive the beneficiary of the substantial assets in the estate. Because the transfer of the assets from the estate to the beneficiary was a relatively simple matter, Attorney Ward found it necessary to deceive the court into thinking he had taken those uncomplicated measures to distribute the assets to the person entitled to them.\\nOn the issue of discipline, Attorney Ward asserted that a 60-day license suspension would be appropriate. He contended that the referee failed to consider several factors in mitigation of the seriousness of the discipline to be imposed, including the fact that he had received unfavorable notoriety following the filing of the complaint in this proceeding and the fact that, because of his age, a two-year license suspension would effectively end his legal career.\\nHaving adopted the referee's findings of fact and conclusions of law in respect to Attorney Ward's professional misconduct, we determine that the recommended two-year license suspension is appropriate discipline to impose for that misconduct. Whether or not he intended to take the beneficiary's property following her death, Attorney Ward treated that property in the estate as if it were his own during the four years he served as personal representative and attorney of the estate, at least to the extent of retaining control over it, in direct opposition to his professional duty in the matter. Coupled with his numerous misrepresentations to the beneficiary, her friend, the court and the Board concerning his actions on behalf of the estate, that misconduct warrants severe discipline.\\nIt Is Ordered that the license of William W. Ward to practice law in Wisconsin is suspended for a period of two years, commencing June 21,1993.\\nIt Is Further Ordered that within 60 days of the date of this order William W. Ward pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of William W. Ward to practice law in Wisconsin shall remain suspended until further order of the court.\\nIt Is Further Ordered that William W. Ward comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.\\nFormer SCR 20.32 provided:\\nFailing to act competently. A lawyer may not:\\n(3) Neglect a legal matter entrusted to the lawyer.\\nSCR 20:1.3 provides:\\nDiligence\\nA lawyer shall act with reasonable diligence and promptness in representing a client.\\nSCR 20:3.3 provides:\\nCandor toward the tribunal\\n(a) A lawyer shall not knowingly:\\n(1) make a false statement of fact or law to a tribunal;\\nSCR 20:8.4 provides:\\nMisconduct\\nIt is professional misconduct for a lawyer to:\\n(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\\nSCR 20:1.15 provides:\\nSafekeeping property\\n(a) . All funds of clients paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts .\\nSCR 20:1.15 provides:\\nSafekeeping property\\n(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.\\nSCR 20:8.4 provides:\\nMisconduct\\nIt is professional misconduct for a lawyer to:\\n(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;\\nSCR 20:8.4 provides:\\nMisconduct\\nIt is professional misconduct for a lawyer to:\\n(a) vic.' \\u2022 te or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\\nSCR 22.07 provides:\\nInvestigation.\\n(2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.\\nSCR 20:4.1 provides:\\nTruthfulness in statements to others\\nIn the course of representing a client a lawyer shall not knowingly:\\n(a) make a false statement of a material fact or law to a third person;\\nSCR 20:1.4 provides:\\nCommunication\\n(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.\\nSCR 20:3.2 provides:\\nExpediting litigation\"}"

wis/8667429.json

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+"{\"id\": \"8667429\", \"name\": \"Wisconsin DEPARTMENT OF REVENUE, Plaintiff-Respondent, v. UNITED STATES SHOE CORPORATION, Defendant-Appellant; UNITED STATES SHOE CORPORATION, Plaintiff-Appellant, v. Wisconsin DEPARTMENT OF REVENUE, Defendant-Respondent\", \"name_abbreviation\": \"Wisconsin Department of Revenue v. United States Shoe Corp.\", \"decision_date\": \"1990-09-06\", \"docket_number\": \"No. 89-0682\", \"first_page\": \"123\", \"last_page\": \"137\", \"citations\": \"158 Wis. 2d 123\", \"volume\": \"158\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T02:04:35.849416+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Eich, C.J., Gartzke, P.J., and Sundby, J.\", \"parties\": \"Wisconsin DEPARTMENT OF REVENUE, Plaintiff-Respondent, v. UNITED STATES SHOE CORPORATION, Defendant-Appellant. UNITED STATES SHOE CORPORATION, Plaintiff-Appellant, v. Wisconsin DEPARTMENT OF REVENUE, Defendant-Respondent.\", \"head_matter\": \"Wisconsin DEPARTMENT OF REVENUE, Plaintiff-Respondent, v. UNITED STATES SHOE CORPORATION, Defendant-Appellant. UNITED STATES SHOE CORPORATION, Plaintiff-Appellant, v. Wisconsin DEPARTMENT OF REVENUE, Defendant-Respondent.\\nCourt of Appeals\\nNo. 89-0682.\\nOral argument December 14, 1989.\\nDecided September 6, 1990.\\n(Also reported in 462 N.W.2d 233.)\\nFor the appellant the cause was submitted on the briefs of Leonard S. Sosnowski of Foley & Lardner of Madison and Larry McMillin of Frost & Jacobs of Cincinnati, Ohio, and oral argument by Larry McMillin.\\nFor the respondent the cause was submitted on the brief of Donald J. Hanaway, attorney general, and Edward S. Marion, assistant attorney general, and oral argument by Edward S. Marion.\\nBefore Eich, C.J., Gartzke, P.J., and Sundby, J.\\nPetition to review denied.\", \"word_count\": \"3312\", \"char_count\": \"20738\", \"text\": \"SUNDBY, J.\\nIn this appeal, we decide that United States Shoe Corporation, under sec. 71.06(1), Stats. (1975), may not offset the net business losses sustained by corporations with which it merged against its 1976 and 1977 Wisconsin net business income. We also decide that the circuit court correctly concluded that a closing agreement between the Department of Revenue and U.S. Shoe, to compromise the taxpayer's franchise tax liability under a June 19,1984 additional assessment, did not settle U.S. Shoe's franchise tax liability for fiscal years 1976 and 1977. We therefore affirm the circuit court's order.\\nBACKGROUND\\nU.S. Shoe is an Ohio corporation engaged in the manufacture and sale of shoes in Wisconsin and elsewhere. In 1966 it acquired the Freeman-Toor Corporation, a Delaware corporation engaged in the manufacture of men's shoes. Freeman-Toor (Del.) organized subsidiary corporations to own and operate each retail sales outlet. On July 31, 1974, Freeman-Toor (Del.) and its subsidiary corporations were merged into Freeman-Toor (Ohio). Sixteen of the retail subsidiaries had net operating losses for fiscal years 1971 through 1974. On July 31, 1975, Freeman-Toor (Ohio) was merged into U.S. Shoe. During fiscal year August 1,1974 through July 31,1975, Freeman-Toor (Ohio) had a Wisconsin net loss for franchise tax purposes.\\nOn its 1976 Wisconsin franchise tax return, U.S. Shoe offset against its income the loss reported by Freeman-Toor (Ohio) on its 1975 Wisconsin return. The loss offset included the losses incurred by the retail subsidiaries of Freeman-Toor (Del.). Because not all of the loss was used in fiscal year 1976, U.S. Shoe carried over and offset the excess against its 1977 income.\\nThe department disallowed the claimed offsets and, on March 7, 1980, notified U.S. Shoe of an additional franchise tax assessment for tax years 1976 and 1977. The department claimed that sec. 71.06(1), Stats. (1975), did not permit a corporation to offset against its current income the losses of corporations merged into it. The tax appeals commission reversed.\\nOn June 19, 1984, the department issued to U.S. Shoe a further notice of additional franchise tax assessment for fiscal years 1978-83. The claim was compromised and on December 21, 1984, U.S. Shoe and the department entered into a closing agreement. U.S. Shoe argued that the 1984 closing agreement foreclosed the department from assessing any further franchise taxes against it for any period before January 31,1983, including the period covered by the March 7, 1980 additional assessment. The tax appeals commission agreed with U.S. Shoe as to fiscal year 1978 and granted it summary judgment barring the additional assessment for that year. The commission granted the department summary judgment determining that the closing agreement did not bar the department's additional franchise tax assessment for the 1975 through 1977 fiscal years.\\nThe circuit court affirmed the commission's disposition of the summary judgment motions but reversed the commission's decision and order as to U.S. Shoe's franchise tax liability for fiscal years 1976 and 1977 and reinstated the department's March 7, 1980, additional assessment.\\nHH\\nTHE CLOSING AGREEMENT ISSUE\\nThe closing agreement is entitled \\\"IN THE MATTER OF THE ADDITIONAL FRANCHISE TAXES ASSESSED AGAINST UNITED STATES SHOE CORPORATION UNDER DATE OF JUNE 19, 1984 FOR THE PERIOD JUNE 1,1977 THROUGH JANUARY 31, 1983 INCLUSIVE.\\\"\\nThe closing agreement reads as follows:\\nIt is hereby stipulated and agreed that for purposes of settlement, the correct adjusted incomes of the above-named U.S. Shoe Corporation for the years 7/ 31/78 to 1/31/83, both inclusive, are in the amounts set forth in attached schedules and that upon the basis of such adjusted incomes there are due taxes, penalty and interest to December 27, 1984 totaling $95,836.06.\\nIt is further stipulated that this agreement and the payment of the above additional taxes shall serve as a final disposition of the taxpayer's franchise tax liability up through and including the year ended January 31, 1983. [Emphasis added.]\\nU.S. Shoe argues that the emphasized language unambiguously settled its franchise tax liability for all years prior to January 31,1983. The emphasized language supports U.S. Shoe's position. However, the meaning of a particular provision in a contract is to be determined by looking at the whole contract. Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26, 36, 330 N.W.2d 201, 206 (1983).\\nWhen the contract is considered as a whole, the conclusion is inescapable that it was intended to apply only to tax years July 31,1978 to January 31,1983. The closing agreement settled a dispute between U.S. Shoe and the department with respect to the June 19, 1984 additional assessment directed to fiscal years 1978-83. The agreement has no application to the department's March 7, 1980 additional franchise tax assessment. For these reasons, we reject U.S. Shoe's argument that the closing agreement bars the department from proceeding on its March 7,1980 additional assessment.\\nII.\\nTHE LOSS CARRY-OVER ISSUE\\nA.\\nThe commission concluded: \\\"[U.S. Shoe] is entitled to carry forward the losses of Freeman-Toor (Del.) or Freeman-Toor (OH) during 1971-75 as offsets against its 1976 and 1977 Wisconsin income for corporate franchise tax purposes under sec. 71.06,1975-77 [S]tats. to the extent income was earned by the same trade or business as incurred the losses initially. Fall River Canning Co. v. Wisconsin Dept. of Taxation, 3 Wis. 2d 632 [89 N.W.2d 203] (1958) no longer controls under reenacted sec. 71.06, 1975-77 [S]tats.\\\" The commission was of the opinion that the test of \\\"business continuity\\\" was mandated by sec. 71.06, as reenacted by sec. 84n, ch. 224, Laws of 1975.\\nWe give no deference to the commission's construction of sec. 71.06(1), Stats. (1975), because the question of whether the revision of sec. 71.06(1) has changed the rule adopted in Fall River is one of first impression. See Local No. 695 v. LIRC, 154 Wis. 2d 75, 84, 452 N.W.2d 368, 372 (1990) (Where legal question is concerned and there is no evidence of any special expertise or experi ence, weight to be afforded agency interpretation is no weight at all). There is no administrative expertise or precedent disclosed in respect to the resolution of this unique issue. Nor is the commission more competent than this court to interpret and apply sec. 71.06(1), Stats. (1975). See id.\\nSection 71.06, Stats. (1949), which was in effect when Fall River was decided, provided:\\nIf a taxpayer . . . sustains a net business loss, such loss . . . may be offset against the net business income of the subsequent year and, if not completely offset by the net business income of such year, the remainder of such net business loss may be offset against the net business income of the following year. For the purposes of this section, net business income shall consist of all the income attributable to the operation of a trade or business regularly carried on by the taxpayer .\\nThe Fall River court concluded that under sec. 71.06, Stats. (1949), the carry-over privilege was limited to the \\\"identical taxpayer\\\" who sustained the business loss. Fall River, 3 Wis. 2d at 638, 89 N.W.2d at 206. It therefore examined Wisconsin law respecting corporate mergers to determine whether the surviving corporation could be considered the same entity as the merged corporation. It found appropriate the following language from Wisconsin Elec. Power Co. v. Department of Taxation, 251 Wis. 346, 356, 29 N.W.2d 711, 716 (1947):\\nA merger or consolidation statute may expressly provide that all constituent corporations shall be continued in the surviving corporation. However, there is no such provision in sec. 196.80(l)(c), Stats. The merged corporation is divested of its estate, property rights, privileges, and franchises. It is \\\"without property with which to do business, and without the right lawfully to do business, [and] is dissolved by the operation of the law which brings this condition into existence.\\\"\\nFall River, 3 Wis. 2d at 636, 89 N.W.2d at 205 (citations omitted).\\nThe Fall River court stated: \\\"The decision in the Wisconsin Electric Power Co. Case established the status of merging corporations in this state. The merging corporations cease to exist by operation of law and but one entity, the surviving corporation, remains.\\\" Id. at 637, 89 N.W.2d at 206.\\nThe court further said:\\nThe appellant [taxpayer] is unable to show by any language which clearly specifies the same[,] the right to deduct the carry-over losses of the merged corporations and therefore it is unable to claim the deduction. The merging corporations elected to forego this carry-over privilege when they chose to merge. The privilege is confined to the identical taxpayer who sustained the business loss . . .\\nFall River, 3 Wis. 2d at 637-38, 89 N.W.2d at 206 (emphasis added).\\nFall River establishes that the right to deduct the carry-over losses of merged corporations must be shown by clear language. The Fall River court's construction of sec. 71.06(1), Stats. (1949), became a part of the statute. See Salerno v. John Oster Mfg. Co., 37 Wis. 2d 433, 441, 155 N.W.2d 66, 70 (1967) (where courts interpret a statute and the legislature fails to subsequently amend the statute to effect a change, the court's interpretation of the statute becomes a part thereof). The Fall River court's construction was not overruled by the repeal and reenactment of the statute. See Bruner v. Department of Revenue, 57 Wis. 2d 70, 76, 203 N.W.2d 663, 666 (1973) (\\\"The mere repeal and re-enactment of substantially the same section does not overrule the prior court interpretations.\\\").\\nThe commission found that, after amendment, sec. 71.06(1), Stats. (1975), \\\"clear[ly] and unambiguously]\\\" mandated the surviving corporation's right to deduct the carry-over losses of merged corporations. Section 71.06(1) permitted a corporation to offset \\\"any . . . net business . . . loss . . . attributable to the operation of a trade or business in this state.\\\" Because the. amendment omitted the qualifying language, \\\"regularly carried on by the taxpayer,\\\" the commission concluded that, \\\"[t]he clear focus of the reenacted provision is the trade or business in this state. Therefore, we are of the opinion that the test of business continuity is mandated by the reenacted language and that the test of Fall River Canning is no longer operative.\\\"\\nThe commission relied on \\\"persuasive\\\" federal case law. In Wisconsin Electric Power, the Wisconsin Supreme Court rejected this line of authority.\\nThere is considerable authority in recent federal cases to the effect that even in the absence of statutory provision a merged corporation is continued in the surviving corporation for tax exemption and deduction purposes, but it is contrary to earlier and, in our opinion, better reasoned authority such as Rochester R. Co. v. Rochester[, 205 U.S. 236, 256 (1907)].\\nWisconsin Elec. Power, 251 Wis. at 356-57, 29 N.W.2d at 716 (footnote omitted). The court described Rochester Railroad as holding that vesting the property rights and privileges of the merged corporation in the surviving corporation was not sufficient to transfer a statutory tax deduction privilege. Id. at 357, 29 N.W.2d at 716.\\nWisconsin Electric Power was decided before Lib-son Shops, in which the United States Supreme Court applied the continuity of business standard to a post-merger loss carry-forward. Libson Shops, 353 U.S. at 386. The Libson Shops Court did not, however, consider the government's argument that the statutory carry-over privilege was not available unless the corporation claiming it was the same taxable entity as that which sustained the loss. Id. at 385-86. Thus, Libson Shops is not authority for rejection of Fall River's \\\"identical taxpayer\\\" test.\\nB.\\nThe business loss carry-forward authorized by sec. 71.06, Stats., \\\"falls within the category of tax privileges which, as matters of legislative grace, must be strictly construed against the taxpayer.\\\" Midland Fin. Corp. v. Department of Revenue, 116 Wis. 2d 40, 46, 341 N.W.2d 397, 400 (1983). In view of the strict-construction requirement, we disagree with the commission's conclusion that the statute \\\"clear[ly] and unambiguously]\\\" mandates that the business continuity test be applied to the carry-forward of business losses of pre-merger corporations. However, we recognize that the tax appeals commission did not arrive at its conclusion capriciously or frivolously. We therefore accept for purposes of analysis that sec. 71.06(1), Stats. (1975), is susceptible of the construction given it by the commission. Because the statute is ambiguous, we may resort to extrinsic aids to determine legislative intent. State v. Vonesh, 135 Wis. 2d 477, 483, 401 N.W.2d 170, 173 (Ct. App. 1986). \\\"One of the most valuable extrinsic aids of judicial construction is legislative history.\\\" Id. (quoting Milwaukee Co. v. Labor & Indus. Review Comm'n, 113 Wis. 2d 199, 204, 335 N.W.2d 412, 415 (Ct. App. 1983).\\nThe commission acknowledged that the legislative purpose in repealing and recreating sec. 71.06(1), Stats., was to change the offset from total income to an apportionment basis. The commission pointed out that despite this stated purpose, the phrase \\\"carried on by the taxpayer\\\" was not reenacted and the phrase \\\"in this state\\\" was substituted. The commission concluded that \\\"[t]he net effect is that the term 'trade or business' is no longer modified as to the identity of the offset claimant \\u2014 i.e., a certain legal entity, or the same taxpayer as incurred the loss which formed the basis for the Fall River interpretation.\\\" However, the phrase \\\"in this state\\\" is, as the commission conceded, an \\\"apportionment related phrase.\\\" Therefore, there is no clear legislative intent to eliminate the \\\"identical taxpayer\\\" requirement of Fall River. The change in language on which the commission relies is consistent with the legislative purpose to change the loss offset from total income to an apportionment basis.\\nC.\\nU.S. Shoe points to other changes in the language of sec. 71.06(1), Stats. (1975), which it claims supports its position that it may utilize the net business loss carryovers of the merging corporations. U.S. Shoe concedes that the purpose of the 1975 amendments was to provide for the apportionment of the net business loss before it is deducted from income in later years. It argues, however, that there is nothing in the legislative history which establishes that this was the sole intended purpose of the amendments. Where a statute has been construed by an appellate court, the legislature is presumed to know that in the absence of a change in the law, the court's construction will remain unchanged. State v. Banks, 105 Wis. 2d 32, 46, 313 N.W.2d 67, 73 (1981). It is therefore unlikely that the legislature would have changed the Fall River rule without stating that it intended to do so.\\nThe most conclusive evidence that the legislature did not intend to change the Fall River rule is found in the report of the Joint Survey Committee on Tax Exemptions. The report, which contains an analysis of the changes the amendments would make in the law, repeatedly refers to changes in terms of apportionment. Nowhere in the report is there any suggestion that the amendments would change the law to allow a surviving corporation to offset against its net business income, the net business losses sustained by corporations with which it merged. Further, the report indicates that the net effect on general program revenues from the proposed change would be an increase of $200,000. However, permitting the surviving corporation to offset against its Wisconsin net business income the business losses incurred by merging corporations in any of the next five preceding income years could significantly decrease general program revenues.\\nFor these reasons, we reject the commission's conclusion that the language of sec. 71.06(1), Stats. (1975), is \\\"reasonably clear and unambiguous\\\" as applied to post-merger loss carry-overs. We decline to find a legislative intent to change the Fall River rule on the basis of the 1975 amendments.\\nD.\\nFinally, we address the commission's persistence in substituting the continuity of business standard for the Fall River standard. In a similar case, the Dane County Circuit Court reversed the commission for much the same reasons we affirm the circuit court today. See Wisconsin Dep't of Revenue v. McHenry Sand and Gravel Co., Wis. Tax Reporter 202-769 (CCH 1986). The commission is bound by the circuit court's construction of sec. 71.06(1), Stats. (1975). Section 73.015(2), Stats., provides that \\\" [i]f the circuit court construes a statute adversely to the contention of the department of revenue, the department shall be deemed to acquiesce in the construction so adopted unless an appeal to the court of appeals is taken . . .\\\"\\nWe recognize that in McHenry Sand and Gravel, the circuit court construed a statute consistent with the department's position. Nonetheless, we conclude that the statute's purpose is served if the department and the tax appeals commission are bound by an unappealed decision of the circuit court whether that decision construes a statute consistently or inconsistently with the department's construction. We have held that \\\"[t]his statute [sec. 73.015(2), Stats.,] is designed to insure tax law stability by allowing taxpayers to rely on unappealed circuit court decisions in structuring their financial affairs.\\\" McDonald Lumber Co. v. Department of Revenue, 117 Wis. 2d 446, 447, 344 N.W.2d 210, 211 (Ct. App. 1984). It would be anomalous if a taxpayer could rely only on unappealed circuit court decisions decided adversely to the department's construction of a statute, and not on those adopting the department's position.\\nE.\\nThe commission may be correct that the continuity of business standard is a fairer way to treat pre-merger business losses. The standard treats merged and nonmerged corporations the same. However, if the Fall River \\\"identical taxpayer\\\" rule is to be abandoned or modified, the supreme court or the legislature must act. Neither has done so.\\nBy the Court. \\u2014 Order affirmed.\\nSection 71.06(1), Stats. (1975), provides in part:\\nFor calendar or fiscal years ending on or after July 31, 1976, a corporation may offset against its Wisconsin net business income any Wisconsin net business loss sustained in any of the next 5 preceding income years to the extent not offset by other items of Wisconsin income in the loss year and by Wisconsin net business income of any year between the loss year and the income year for which an offset is claimed. For purposes of this section Wisconsin net business income or loss shall consist of all the income attributable to the operation of a trade or business in this state, less the business expenses allowed as deductions under s. 71.04.\\nSee Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386-87, 390 (1957) (under secs. 23 (s) and 122 of the Internal Revenue Code of 1939, as amended, the surviving corporation may offset business losses sustained by merged corporations only to the extent that the income against which its offset is claimed was produced by substantially the same businesses which incurred the losses).\\nSection 180.67, Stats. (1975), provided that, upon merger, the separate existence of the merged corporations ceased and all property and every other interest belonging to the merged corporations was transferred to and vested in the surviving or new corporation.\\nSee Report of Joint Survey Committee on Tax Exemptions, Engrossed 1975 S.B. 755, as amended by Conference Amendment 1, sec. 11 at 3 and 6 (March 23,1976).\\nSee Report of Joint Survey Committee on Tax Exemptions, Engrossed 1975 S.B. 755, as amended by Conference Amendment 1, sec. 11 at 3 and 6 (March 23,1976).\\nId. at 4.\"}"

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+"{\"id\": \"8667462\", \"name\": \"IN RE the MARRIAGE OF: Marie E. HUBERT, Petitioner-Appellant. v. John P. HUBERT, Jr., Respondent\", \"name_abbreviation\": \"Hubert v. Hubert\", \"decision_date\": \"1990-12-26\", \"docket_number\": \"No. 90-0741\", \"first_page\": \"803\", \"last_page\": \"823\", \"citations\": \"159 Wis. 2d 803\", \"volume\": \"159\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:43:46.858395+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Nettesheim, P.J., Scott and Anderson, JJ.\", \"parties\": \"IN RE the MARRIAGE OF: Marie E. HUBERT, Petitioner-Appellant. v. John P. HUBERT, Jr., Respondent.\", \"head_matter\": \"IN RE the MARRIAGE OF: Marie E. HUBERT, Petitioner-Appellant. v. John P. HUBERT, Jr., Respondent.\\nCourt of Appeals\\nNo. 90-0741.\\nSubmitted on briefs September 14, 1990.\\nDecided December 26, 1990.\\n(Also reported in 465 N.W.2d 252.)\\nOn behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael S. Heffernan/Linda Roberson of Stolper, Koritzinsky, Brewster & Neider, S.C. of Madison.\\nOn behalf of respondent, the cause was submitted on the brief of Howard T. Healy/William L. Stroik of Di Renzo and Bomier of Neenah.\\nBefore Nettesheim, P.J., Scott and Anderson, JJ.\", \"word_count\": \"4017\", \"char_count\": \"24508\", \"text\": \"ANDERSON, J.\\nMarie E. Hubert raises three issues: (1) whether the family court's treatment of John Hubert's accounts receivable as anticipated income rather than as an asset for property division was an error in the exercise of discretion; (2) whether the family court misused its discretion in ignoring the child support percentage standards and in failing to impose a trust on a portion of the child support; and (3) whether the family court improperly gave too much weight to the support objectives of maintenance, with the result that the award of permanent maintenance is unconscionably low.\\nMarie and John were married in Minnesota in 1974. During the first years of the marriage, while John completed his medical training as a cardiovascular thoracic surgeon, Marie taught until the parties' first child was born, and then she assumed full-time responsibility for the home and children.\\nIn late 1983, the parties moved to Wisconsin where John went into private medical practice, earning $207,831 during his first year. By 1988, John's income had grown to $965,310 and his estimated income for 1989 was expected to exceed $1,000,000.\\nJohn's income, as a cardiac surgeon, permitted the parties to develop and maintain a very high standard of living. In the four and one-half years they lived in Wisconsin they were able to pay off the mortgage on the mansion they purchased for $425,000, purchases in excess of $200,000 of furniture, more than $45,000 in oriental rugs and a $45,000 boat. They accumulated over $1,000,000 in assets and a sizeable retirement fund, and they established a savings and investment program for the children with an accumulation in excess of $20,000.\\nIn a written decision, the family court ruled on the issues of John's accounts receivable, maintenance and child support. The parties entered into a stipulation on the issues of legal custody and periods of physical placement, and property division.\\nThe family court reasoned that John's accounts receivable could be considered either as an asset, subject to property division, or as anticipated income, subject to consideration as a source of child support and maintenance. The court chose to treat the accounts receivable as anticipated income.\\nThe family court held that the use of the percentage, standard for child support would be unfair to John. The court, in considering Marie's budget, reduced her monthly expenses from more than $15,600 to approximately $10,000 and ordered monthly child support in the amount of $4000. The court reasoned that along with permanent monthly maintenance of $3000 and antici pated monthly income from the property division of $3750, that Marie would have an adequate monthly income of $10,750.\\nIn ordering permanent maintenance of $3000 per month, the family court held that the facts and circumstances of the marriage did not justify any compensatory maintenance.\\nOn appeal from the final judgment, Marie argues that the family court exceeded the limits of its discretion in making all three holdings.\\nWe conclude that the family court properly held that the accounts receivable cannot be double counted and that the court did not exceed the limits of its discretion in classifying the receivables as anticipated income. We affirm that portion of the court's judgment.\\nWe conclude that, although the family court properly deviated from the percentage standard, it exceeded the limits of its discretion in establishing child support. We also conclude that the court does, in limited circumstances, have the authority to establish a trust for post-majority educational needs. Therefore, we reverse the portion of the court's judgment dealing with child support and remand for further proceedings.\\nWe also conclude that the family court erred in the exercise of discretion by not giving sufficient weight to the fairness objective of maintenance while giving too much weight to the need objective. We reverse the maintenance portion of the judgment and remand for further proceedings.\\nI. ACCOUNTS RECEIVABLE\\nWe first consider whether John's accounts receivable were properly classified as anticipated income rather than assets subject to property division. Whether an item at issue should be classified as property subject to division involves the application of a statute to a particular set of facts. Weiss v. Weiss, 122 Wis. 2d 688, 692, 365 N.W.2d 608, 610-11 (Ct. App. 1985). This court owes no deference to the trial court. Id.\\nGenerally, receivables are to be considered as assets subject to property division. Ondrasek v. Ondrasek, 126 Wis. 2d 469, 475-76, 377 N.W.2d 190, 193 (Ct. App. 1985). On occasion, in fixing child support and maintenance, the family court can consider the accounts receivable as anticipated income when determining the party's ability to pay. See Johnson v. Johnson, 78 Wis. 2d 137, 143, 254 N.W.2d 198, 201 (1977). However, it is error if the court double counts receivables. See Overson v. Overson, 125 Wis. 2d 13, 20, 370 N.W.2d 796, 799 (Ct. App. 1985).\\nThe family court held that John's receivables would be considered as anticipated income, and not as a divisible asset, to enable him to continue his medical practice, to make maintenance and child support payments, and to support himself.\\nMarie argues that this decision was error: she asks this court to include the constantly accruing receivables both as an asset subject to division and as anticipated income. We reject her argument.\\nMarie argues that Hauge v. Hauge, 145 Wis. 2d 600, 427 N.W.2d 154 (Ct. App. 1988), is authority for double counting of receivables under certain circumstances. She argues that there is no hardship to John, as the sole shareholder of the service corporation, to require him to pay one-half of the net present value of the receivables as part of the property division and to use a portion of the remaining receivables to pay his maintenance and child support obligations because there is a constant cash flow that will reimburse him.\\nMarie misconstrues Hauge. Hauge goes no further than reiterating the rule against double counting; and, in a subsequent case, Peerenboom v. Peerenboom, 147 Wis. 2d 547, 553, 433 N.W.2d 282, 285 (Ct. App. 1988), we made it clear that receivables cannot be double counted.\\nThe family court reasoned that if the receivables were treated as a divisible asset, John's cash flow would be adversely affected and he would not have the income sufficient to fulfill his professional and personal obligations. We conclude that this analysis was a proper exercise of the court's discretion, and we affirm the court's holding that the accounts receivable should be treated as anticipated income.\\nII. CHILD SUPPORT\\nMarie sought child support for the parties' two children equal to 25% of John's gross income. See section 767.25(lj), Stats. She also requested that a portion of the child support be set aside in trust funds for the children's post-majority education.\\nThe family court set child support at $4000 per month, finding that it would be unfair to John to apply the percentage standard. Further, the court held that it did not have the authority to establish trust funds for educational needs beyond the age of eighteen years.\\nA request for child support is addressed to the family court's discretion. Wallen v. Wallen, 139 Wis. 2d 217, 223, 407 N.W.2d 293, 295 (Ct. App. 1987). The court, in exercising its discretion, must consider the needs of the children, the needs of the parent with primary physical placement and the ability of the other parent to pay. See Schwantes v. Schwantes, 121 Wis. 2d 607, 630-31, 360 N.W.2d 69, 80 (C.t. App. 1984).\\nGenerally, the family court is required to apply the percentage standards when it establishes child support payments. Section 767.25(lj), Stats. However, upon the request of either party the court may vary the child support payments established by the standards after considering the relevant statutory factors set forth in sec. 767.25(lm) and finding, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the children or to either of the parties. If the court does deviate from the percentage standard, it must state in writing: (1) its reasons why the percentage standard is unfair to the children or either party; (2) its reasons for the amount of the modification; and (3) the basis for its modification. Section 767.25(ln)(b).\\nAlthough the family court stated that the use of the percentage standard would be unfair to John, it failed to set forth a sufficient legal basis for reaching that conclusion, and this is an error in the exercise of discretion.\\nThe family court relied on Parrett v. Parrett, 146 Wis. 2d 830, 841-42, 432 N.W.2d 664, 668-69 (Ct. App. 1988), for authority that the court may deviate from the percentage standard when its application would result in child support far beyond the children's needs. We agree that in cases where the parties have a substantial marital estate and income far beyond the average income of most people, the robotistic utilization of the percentage standards may give absurd results.\\nThe family court must carefully consider the relevant statutory factors before it deviates from the percentage standards. In this process, the court must balance the welfare of the children against any perceived unfairness to either party.\\nIn this case, the family court considered the maintenance received by Marie, the property division and the children's standard of living prior to the dissolution of the marriage. The court, however, ignored the other relevant statutory factors, including: (1) the desirability of Marie remaining in the home until the children completed high school; (2) the cost of day care if Marie worked outside of the home or the value of the custodial services she provided; (3) the children's educational needs; (4) the best interests of the children; and (5) other factors made relevant by the peculiarities of this case, for example, a substantial savings and investment program for the children.\\nThe court's ruling that it would be absurd to continue to provide the children with the same standard of living they enjoyed during the marriage was error. It ignores the statutory directive that the court consider what the children would have had had the marriage continued. Section 767.25(lm)(c), Stats.\\nWe agree with the family court that the children did enjoy a standard of living far above that enjoyed by most children. This fact is not enough to deny the children the same standard of living in the future.\\nChild support payments . . . are designed to maintain children, insofar as possible, at the economic level they would have enjoyed had there been no divorce. That the noncustodial parent has an obligation to share with his minor children the fruits of post-divorce economic improvements, there can be little doubt.\\nSommer v. Sommer, 108 Wis. 2d 586, 590, 323 N.W.2d 144, 146 (Ct. App. 1982).\\nThe award of child support must recognize that it is in the best interests of the children that they continue at a standard of living substantially equal to what they enjoyed before this action was commenced. The family court erred when it failed to articulate why the children should not be supported \\\"at the economic level they would have enjoyed had there been no divorce.\\\" Id.\\nHere, the family court narrowly focused its inquiry on the reasonable or necessary amount John would have to pay to fulfill his duty of support. The court's establishment of child support in the amount John volunteered to pay, without an independent evaluation of all of the relevant factors, reflects arbitrariness rather than a process of reasoning from the facts of the record. See Edwards v. Edwards, 97 Wis. 2d 111, 117, 293 N.W.2d 160, 163-64 (1980). The court failed to adequately consider the relevant factors listed in sec. 767.25(lm), Stats.\\nWe reverse the court's determination of child support and remand to the court for further proceedings not inconsistent with this portion of the decision.\\nMarie also requested that the family court order post-majority educational trusts for the children. In denying this request the family court held that it could not order John to pay child support beyond the age of majority and that it did not have the authority to order the establishment of such trusts.\\nSection 767.25(2), Stats., provides the family court with the necessary authority to establish trusts for the benefit of the children:\\nThe court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.\\nThis statute gives the court an attractive means of providing for the future educational needs of children with child support that is paid while the children are under the age of majority.\\nIn Resong v. Vier, 157 Wis. 2d 382, 392, 459 N.W.2d 591, 595 (Ct. App. 1990), we held that, except for limited circumstances, the family court could not impose a trust at the request of the obligor after child support had been established.\\nThis case is distinguishable from Resong' Here Marie, the primary care giver, has requested that a trust be imposed; therefore, unlike Resong, this case does not present the specter of the court altering the authority of the custodial parent or stripping her of her decision-making authority.\\nWe hold that the family court has the discretionary authority under sec. 767.25(2), Stats., to establish a trust for the post-majority needs of the parties' children.\\nIII. MAINTENANCE\\nThe family court ordered permanent maintenance of $3000 per month, finding that along with monthly child support of $4000 and anticipated monthly income of $3750, generated by the property division, Marie could meet what the court determined to be her reasonable expenses of $10,048.\\nA maintenance request is addressed to the family court's discretion. Kildea v. Kildea, 143 Wis. 2d 108, 115, 420 N.W.2d 391, 394 (Ct. App. 1988). The family court exceeds the limits of its discretion when the determination is based on a factual error or, under the facts and circumstances of a particular case, the amount of maintenance is either excessive or inadequate. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 582-83, 445 N.W.2d 676, 679 (Ct. App. 1989).\\nMarie argues that the family court exceeded the limits of its discretion in basing its maintenance award on her needs without adequately considering the fairness objective of maintenance, and in failing to award her maintenance that would allow her to continue living at the marital standard of living.\\nThe very high standard of living enjoyed by Marie and John during the marriage was made possible by the elevated income John earned as a cardiac surgeon. The parties resided in a mansion they purchased in 1983 for $425,000, and they paid off the entire mortgage in four years before selling the mansion for $500,000 during the pendency of this action. Their standard of living included a savings and investment program with assets in excess of $1,000,000, not including pension and retirement funds in excess of $300,000.\\nThe evidence before the family court established that throughout the marriage Marie served as the principal housekeeper, mother and social hostess. From this evidence it is reasonable for the court to infer that John was able to focus all of his energy on his education, training and career.\\nBased on this evidence, the family court held that an award of compensatory maintenance was not justified and that maintenance should be based on Marie's needs. In determining Marie's needs, the family court reduced her monthly expenses to a level the court believed would allow Marie to own and maintain a $200,000 residence. The family court also excluded any amounts from Marie's budget for savings and investments.\\nA. STANDARD OF LIVING\\nIn considering an award of maintenance the family court must assess the feasibility of the recipient becoming self-supporting at a \\\"standard of living reasonably comparable to that enjoyed during the marriage . . .\\\" Section 767.26(6), Stats. There was no evidence presented that Marie could independently achieve a commensurate standard of living. Under these circumstances it was incumbent upon the court to consider whether sufficient maintenance could be required to permit Marie to have a standard of living that approached the marital level. See sec. 767.26(10).\\nThe standard of living must be individualized for each case by considering the facts and circumstances of the marriage. See Steinke v. Steinke, 126 Wis. 2d 372, 386-87, 376 N.W.2d 839, 846-47 (1985). There is no requirement that maintenance is limited to an amount that will permit the recipient to enjoy an average standard of living. Bahr v. Bahr, 107 Wis. 2d 72, 83, 318 N.W.2d 391, 397 (1982). Although \\\"[l]ife styles must adjust to economic realities,\\\" Jasper v. Jasper, 107 Wis. 2d 59, 71, 318 N.W.2d 792, 798 (1982), \\\"[a] court must not reduce the recipient spouse to subsistence level while the payor spouse preserves the pre-divorce standard of living.\\\" LaRocque v. LaRocque, 139 Wis. 2d 23, 35, 406 N.W.2d 736, 741 (1987).\\n[W]here the parties had an acceptable standard of living . . . that . . . standard should be maintained if, under the facts and circumstances of the situation, such a result can be accomplished without unreasonable hardship to the supporting party.\\nIn denying Marie's request to set maintenance at a level that would permit her to continue saving and investing, the family court did not individualize the standard of living. This case can be distinguished from Liddle v. Liddle, 140 Wis. 2d 132, 151-56, 410 N.W.2d 196, 204-06 (Ct. App. 1987), where the wife sought maintenance solely to allow her to continue a savings and investment program. Here.a savings and investment plan is one of several reasons Marie is seeking maintenance: to fulfill her needs and to maintain a standard of living reasonably comparable to that which she enjoyed before the divorce. Vander Perren v. Vander Perren 105 Wis. 2d 219, 228, 313 N.W.2d 813, 818 (1982).\\nThe family court also failed to individualize the standard of living when it held that because of the change in Marie's circumstances John should not be required to pay m\\u00e1intenance that would allow Marie to continue to live in a residence equivalent to the marital home.\\nThe family court's holding is not supported by any reasoning why such a home would be sufficient to fulfill Marie's needs. Such an analysis is necessary when confronted with John's testimony that he was looking for homes with prices up to 1.3 million dollars.\\nIn the usual divorce, the socioeconomic levels of the parties cannot be maintained at the level they were before the divorce. However, this is not the usual case. The court's arbitrary limitations on what price Marie should pay for a residence, arbitrary reduction of her monthly budget, and failure to consider a savings and investment program were error. Upon remand, the family court should consider a monthly budget for Marie that includes sufficient funds to allow her a \\\"standard of living reasonably comparable to that enjoyed during the marriage.\\\" Id. (emphasis in original); LaRocque, 139 Wis. 2d at 35, 406 N.W.2d at 741. Then, if John can afford maintenance to achieve this standard, maintenance should be set accordingly. See Bahr, 107 Wis. 2d at 83, 318 N.W.2d at 397.\\nB. FAIRNESS OBJECTIVE\\nThe family court failed to consider the interrelationship of the fairness objective and the support objective of maintenance. The goal of these two distinct but related objectives is to have an equitable financial arrangement that adequately addresses the needs and earning capacities of both parties. By basing the maintenance award on Marie's needs, the court failed to fashion a fair and equitable arrangement and exceeded the limits of its discretion. See Kennedy v. Kennedy, 145 Wis. 2d 219, 223, 426 N.W.2d 85, 87 (Ct. App. 1988); LaRocque, 139 Wis. 2d at 32-33, 406 N.W.2d at 740.\\nThe family court mistakenly limited its consideration of the fairness objective to Marie's contributions to John obtaining his medical degree and concluded that the record did not support compensatory maintenance. The fairness objective is much broader, it brings under its umbrella all of the noneconomic contributions Marie made during the marriage that contributed to John's education, training and increased earning power. See LaRocque, 139 Wis. 2d at 37-38, 406 N.W.2d at 741-42.\\nThe court erred when it held that John's economic contribution of an annual salary close to $1,000,000 was of more importance than Marie's non-economic contributions and held that \\\"[m]aintenance is based on need\\nThe family court also erred when it held that John should not have to work so hard and considered that John's income might decrease in the future if he hired an associate to relieve his workload. If John would voluntarily reduce his workload or hire an associate, the corresponding reduction in John's income, if any, is not a proper subject for speculation by the family court when making an initial award of maintenance. In trying to be fair to John, the court failed to be fair to Marie.\\nWhen it addressed the fairness factor, the family court did not consider as relevant factors the parties' good fortune and highly elevated income. See Parrett, 146 Wis. 2d at 838, 432 N.W.2d at 667. Under the circumstances of this case, the court should have taken these factors into consideration and then considered whether, in all fairness, Marie should share in this good fortune and elevated income.\\nRecognizing that there is no rule of law that Marie is entitled to a one-half share in John's total income, we hold it was incumbent upon the family court to approach the award of maintenance from a position where it recognizes that a fifty-fifty division of total income is meant to be a starting point for an award that is fair, meets the needs of the recipient, and allows the recipient to achieve an equivalent standard of living. See Enders v. Enders, 147 Wis. 2d 138, 144-45, 432 N.W.2d 638, 641 (Ct. App. 1988). The use of such a starting point permits the family court to achieve one of the goals of the fairness objective: preventing the unjust enrichment of either party. LaRocque, 139 Wis. 2d at 33, 406 N.W.2d at 740.\\nJohn's monthly income from his medical practice is approximately $83,333 and, using the court's determination that income generated from each party's share of the property division would be $3750, John has a total monthly income of $87,083. The $4000 monthly award of maintenance to Marie equals no more than 4.6% of John's income. Not only is this inadequate, but it causes us to question if the court gave serious consideration to a near equal division of the total income in setting maintenance and whether the award results in John's unjust enrichment.\\nFor the reasons set forth, we affirm that part of the decision of the family court determining that the accounts receivable would be considered as income. We reverse those portions of the decision setting the amount of child support and the amount of maintenance. We remand the issues of child support and maintenance to the family court for further proceedings consistent with this opinion.\\nCosts are denied to both parties.\\nBy the Court. \\u2014 Judgment affirmed in part; reversed in part and cause remanded.\\nJohn's service corporation had some $400,000 in accounts receivable with a stipulated net present value of $192,125. An equal division of the receivables would have given Marie cash of $96,625.\\nStandard of living means the level of subsistence and comfort in everyday life that was enjoyed by the children because of their parents' financial resources. See Sommer v. Sommer, 108 Wis. 2d 586, 589-90, 323 N.W.2d 144, 146 (Ct. App. 1982).\"}"

wis/8667506.json

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+"{\"id\": \"8667506\", \"name\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Daniel R. McNAMARA, Attorney at Law\", \"name_abbreviation\": \"In re Disciplinary Proceedings Against McNamara\", \"decision_date\": \"1990-09-07\", \"docket_number\": \"No. 90-0183-D\", \"first_page\": \"279\", \"last_page\": \"288\", \"citations\": \"157 Wis. 2d 279\", \"volume\": \"157\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:42:04.211226+00:00\", \"provenance\": \"CAP\", \"judges\": \"ABRAHAMSON, J., did not participate.\", \"parties\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Daniel R. McNAMARA, Attorney at Law.\", \"head_matter\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Daniel R. McNAMARA, Attorney at Law.\\nSupreme Court\\nNo. 90-0183-D.\\nFiled September 7, 1990.\\n(Also reported in 459 N.W.2d 574.)\", \"word_count\": \"2428\", \"char_count\": \"15249\", \"text\": \"PER CURIAM.\\nAttorney disciplinary proceeding: attorney's license suspended.\\nWe review the report of the referee recommending that the license of Daniel R. McNamara to practice law in Wisconsin be suspended for a period of one year, as discipline for his neglect of the probate of eight estates and his failure to respond to requests from the Board of Attorneys Professional Responsibility (Board) for infor mation concerning his conduct in those matters and in an additional matter in which his clients had filed a grievance. The referee further recommended that the license suspension be made retroactive to May 16,1989, the date on which a prior one-year license suspension the court imposed on Attorney McNamara in 1988 for misconduct was to terminate. Attorney McNamara had filed a petition for reinstatement of his license after that period of suspension had expired but the Board deferred action on it because it had filed the complaint in this proceeding, intending to propose to the referee that any recommended license suspension relate back to the date of the expiration of the prior suspension period.\\nWe determine that the misconduct in which Attorney McNamara was found to have engaged in this proceeding warrants discipline more severe than that recommended by the referee. This is the third occasion the court has had to discipline Attorney McNamara for professional misconduct and the second time his misconduct included failure to cooperate with the Board in its investigation and promptly respond to Board requests for information. Indeed, Attorney McNamara's most recent failure to respond to the Board occurred less than one month after the commencement of the 1988 license suspension, which was imposed for, among other things, his failure to respond to Board inquiries. On the basis of Attorney McNamara's disciplinary history and his continued refusal to recognize his responsibilities to the disciplinary authorities, we suspend his license to practice law for 18 months, retroactive to May 16, 1989.\\nAttorney McNamara was admitted to the practice of law in Wisconsin in 1949 and practices in Montello. In 1975, the court revoked his license following his conviction of six misdemeanors, including theft, misappropriation of funds and fraudulent misrepresentations. State v. McNamara, 68 Wis. 2d 701, 229 N.W.2d 698 (1975). In 1988 we suspended his license for one year as discipline for the following: continuing to practice law and accept salary as family court commissioner while ineligible to practice under the court's rules as a result of noncompliance with continuing legal education requirements; communicating with an adverse party in litigation, knowing the party was represented by counsel and without that counsel's permission; neglecting a client's bankruptcy matter; appearing as family court commissioner on behalf of a minor child in a post-divorce dispute, having previously represented that child's father in the divorce action; failing to promptly respond to the Board in its investigation into allegations of his misconduct. Disciplinary Proceedings Against McNamara, 143 Wis. 2d 365, 421 N.W.2d 513 (1988).\\nThe referee in this proceeding, Attorney Norman Anderson, made findings of fact consistent with the allegations of the Board's complaint, to the truth of which Attorney McNamara had stipulated.\\nIn March, 1985, Attorney McNamara was retained to probate an estate. In June, 1986, the probate judge sent Attorney McNamara a letter stating that the file had been inactive for 13 months and that he expected progress would be made toward completing the estate within 60 days. Two months later the judge sent a second letter to Attorney McNamara and to the estate's personal representative stating that his requests for completion of the estate had been ignored and warning that if no progress were evident in the next 30 days he would issue an order to show cause. When nothing was done, the judge issued an order in October, 1986 requiring Attorney McNamara and the personal representative to appear in court and show cause why the final judgment and other documents necessary for the estate's completion had not been filed. Attorney McNamara appeared on the scheduled date and told the judge he would have the estate closed within 30 days.\\nThe estate was not closed by the stated time and in January, 1987, the judge sent letters to Attorney McNamara and the personal representative saying that he had made numerous requests to have the estate closed, had issued an order to show cause and that the estate still was not closed, notwithstanding Attorney McNamara's assurances at the hearing that it would be. The letter listed 11 items remaining to be completed and warned that if the estate were not closed by March 9, 1987, the court would take further action.\\nAfter receiving that letter, the personal representative wrote to the judge that she had visited Attorney McNamara at his office several times, had written him letters, had telephoned him and had spoken with him personally, asking him to complete the estate. She also told the judge that the estate had a number of debtors and that Attorney McNamara had failed to contact them to try to collect on their obligations to the estate. The judge then wrote to Attorney McNamara that he had received the letter from the personal representative and told him the problems, the personal representative had related and reminded him of the March 9,1987 deadline for closing the estate.\\nWhen nothing was done in response to that letter, the judge filed a grievance with the Board on March 10, 1987. Two days later the personal representative removed Attorney McNamara as attorney for the estate and retained other counsel, who completed the estate two months later.\\nIn its investigation of the grievance filed by the judge, the Board sent Attorney McNamara a letter requiring his response. When he failed to respond, the Board sent him a second letter, to which he responded, albeit three weeks late, stating that he had not concluded the estate on the date set by the court because he had failed to note the time in his appointment book and overlooked making an appearance in court on that day. He also said there were unusual problems in the estate which required more time than usual to resolve but acknowledged that he had neglected the estate. The referee concluded that the failure to timely complete the estate, despite numerous contacts from the personal representative and from the court, including the issuance of an order to show cause, constituted serious neglect of a legal matter, in violation of SCR 20.32(3).\\nDuring its investigation of this matter, the Board inquired into Attorney McNamara's handling of other estates and learned that in Marquette county on August 5, 1987 there were a number of estates he had opened that had not been completed, including one opened in 1971, one in 1979, one in 1981 and four in 1985. The Board wrote to Attorney McNamara asking him to respond to these matters and requesting that he provide specific information concerning each of seven estates the probate of which he had commenced prior to 1986 and which remained open. When it received no response within the specific time, the Board sent Attorney McNamara a second request, to which Attorney McNamara responded six weeks late. That response consisted of a brief letter stating that one of the estates had been completed, two others would be concluded by mid-November, 1987 and the balance would be closed by January 1, 1988. The response did not supply any of the specific information the Board had requested.\\nWhen the Board assigned this matter to the district professional responsibility committee for additional investigation, that committee wrote to Attorney McNamara requesting certain information regarding the seven delinquent estates, including a \\\"comprehensive explanation\\\" of why the estates had been open for so long. When it received no response within the time specified, the committee sent Attorney McNamara a second letter. Attorney McNamara responded, enclosing a copy of a prior letter he purported to have sent but which the committee had not received. That letter set forth a brief description of each of the seven estates under investigation but did not provide any explanation for delays in their probate. Moreover, none of the estates which Attorney McNamara had said would be closed by specified dates had been closed.\\nBetween April and November, 1988, the committee continued to request additional information concerning Attorney McNamara's failure to properly explain the delays in each of the seven estates. Attorney McNamara requested additional time to do research in order to respond fully to the inquiries. When Attorney McNamara failed to respond fully, the committee scheduled an investigative meeting at which Attorney McNamara appeared and requested an adjournment so that he could obtain counsel to represent him. Ultimately, in January 1989, Attorney McNamara gave the committee summaries of the delinquent probate matters prepared by a former partner who had agreed to take over and complete the estates.\\nThe referee concluded that Attorney McNamara's failure to timely complete these seven estates constituted neglect of legal matters, in violation of SCR 20.32(3) and 20:1.3, and that his failure to timely respond to written requests for information concerning his delay in those estates during the Board's investigation constituted a failure to cooperate with the Board, in violation of SCR 22.07(2) and 21.03(4).\\nUnrelated to these probate matters, the Board wrote to Attorney McNamara in June, 1988, requiring his written response to a grievance filed by clients claiming he had neglected their legal matter. When it received no response within the 20 days specified, the Board sent him a second letter. Attorney McNamara responded to that letter but did not provide sufficient information to permit the Board to make a determination on the merits of the grievance. Consequently, the Board sent another request to Attorney McNamara requiring him to send his complete office file on the matter within 10 days. The Board received no reply and sent a second letter, to which it received no response. The referee concluded that Attorney McNamara's failure to respond to the Board's request for information and to provide his office files constituted failure to cooperate with the Board, in violation of SCR 22.07(2) and 21.03(4).\\nFollowing initial consideration of the referee's report and recommendation of a retroactive one-year license suspension, the .court ordered Attorney McNamara and the Board to show cause why, in light of Attorney McNamara's prior misconduct, including his failure to promptly respond to the Board in its investigation into his conduct, discipline more severe than the one-year license suspension recommended by the referee should not be imposed for the misconduct considered in this proceeding. In his response, Attorney McNamara contended that the recommended discipline is appropriate because his misconduct involved acts of omission, not wilful neglect. However, we note, the referee did not make this distinction in his report, although he did consider that none of Attorney McNamara's misconduct involved dishonesty or fraud.\\nIn its response to the show cause order, the Board asserted that, had the misconduct here been considered in the 1988 disciplinary proceeding, the totality of that misconduct would have warranted no more than a two-year license suspension and, in effect, that would be the result if the court accepted the referee's recommendation. The Board informed the court that Attorney McNamara had agreed to have the prior license suspension continue and stipulated to the facts in this proceeding in exchange for the Board's recommending that any license suspension imposed in this proceeding be made retroactive to the expiration date of the prior suspension.\\nAs far as it concerns Attorney McNamara's neglect of probate matters and his failure to respond to the Board inquiring into that neglect, we agree with the Board's position, as it is supported by prior disciplinary cases with respect to both the severity of discipline imposed for similar misconduct and the imposition of a license suspension retroactive to the expiration of a prior suspension. However, the Board did not address the fact that Attorney McNamara's failure to respond to the Board's request for information concerning a client's grievance in June, 1988 occurred less than two months after we suspended his license, in part, for the very same misconduct. Consequently, this incidence of misconduct could not have been considered in the prior proceeding and, more importantly, it is identical to that misconduct for which he had just been disciplined.\\nHaving accepted the referee's findings of fact and conclusions of law concerning Attorney McNamara's misconduct, we determine that an 18-month license suspension is appropriate discipline to be imposed as sanction for that misconduct.\\nIT IS ORDERED that the license of Daniel R. McNamara to practice law in Wisconsin is suspended for a period of 18 months, retroactive to May 16, 1989.\\nIT IS FURTHER ORDERED that within 60 days of the date of this order Daniel R. McNamara pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Daniel R. McNamara to practice law in Wisconsin shall be suspended until further order of the court.\\nIT IS FURTHER ORDERED that Daniel R. McNamara comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.\\nABRAHAMSON, J., did not participate.\\nSCR 20.32 provides: \\\"A lawyer may not: . (3) Neglect a legal matter entrusted to the lawyer.\\\" The corresponding provision of the current Rules of Professional Conduct for Attorneys is SCR 20:1.3.\\nSCR 20:1.3 provides: \\\"Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.\\\"\\nSCR 22.07 provides:\\n(2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.\\nSCR 21.03(4) provides: \\\"Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.\\\"\"}"

wis/8667785.json

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+"{\"id\": \"8667785\", \"name\": \"TOWN OF CLEARFIELD, Plaintiff-Respondent-Petitioner, v. Walter CUSHMAN, Defendant-Appellant\", \"name_abbreviation\": \"Town of Clearfield v. Cushman\", \"decision_date\": \"1989-06-07\", \"docket_number\": \"No. 87-0420\", \"first_page\": \"10\", \"last_page\": \"25\", \"citations\": \"150 Wis. 2d 10\", \"volume\": \"150\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:52:11.179570+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOWN OF CLEARFIELD, Plaintiff-Respondent-Petitioner, v. Walter CUSHMAN, Defendant-Appellant.\", \"head_matter\": \"TOWN OF CLEARFIELD, Plaintiff-Respondent-Petitioner, v. Walter CUSHMAN, Defendant-Appellant.\\nSupreme Court\\nNo. 87-0420.\\nArgued March 1, 1989.\\nDecided June 7, 1989.\\n(Also reported in 440 N.W.2d 777.)\\nFor the plaintiff-respondent-petitioner there were briefs by Dennis C. Schuh and Thompson and Schuh, Mauston, and oral argument by Dennis C. Schuh.\\nFor the defendant-appellant there was a brief by Ray C. Feldman, Jr. and Vieth & Feldman, Mauston, and oral argument by Ray C. Feldman, Jr.\\nAmicus curiae briefs were filed by LeRoy A. Lokken, Madison, for Wisconsin Manufacturing Housing Association; and by Richard J. Stadelman, Shawano, for Wisconsin Towns Association.\", \"word_count\": \"3748\", \"char_count\": \"22799\", \"text\": \"DAY, J.\\nThis is a review of a decision by the court of appeals, Town of Clearfield v. Cushman, 143 Wis. 2d 553, 421 N.W.2d 865 (Ct. App. 1988), which reversed and remanded a judgment by the circuit court for Juneau county, Honorable Wallace A. Brady, judge. The circuit court granted summary judgment in favor of the Town of Clearfield (Town) against Walter Cushman (Cushman) for violating a town ordinance which regulates mobile homes located outside \\\"mobile home parks.\\\" Among other things, the ordinance required a building permit, provided for minimum dwelling size, and imposed well and septic system requirements. The circuit court assessed a fine of $3,000 against Mr. Cushman for the violation. The court of appeals reversed, holding the ordinance was a \\\"zoning ordinance\\\" requiring county board approval which had not been obtained. It also held the Town had no statutory authority to regulate mobile homes outside of mobile home parks.\\nWe reverse. We hold the ordinance is not a zoning ordinance and therefore does not require county board approval. We also hold that while the Town lacks statutory authority to proscribe a minimum size of mobile homes, such provision is severable and the Town does have authority to enact other provisions affecting Cushman such as requiring a building permit, well and connection to a sewage disposal system.\\nThe principal issues presented are: (1) Is the Town's \\\"Land Division and Building Ordinance\\\" a zoning ordinance? We conclude it is not. (2) Does the Town have statutory authority to require a building permit, a well, and a septic system as conditions for permitting a mobile home to be installed on property outside the boundaries of a \\\"mobile home park?\\\" We hold it does. (3) Does the Town have statutory authority to set the minimum dwelling size for mobile homes installed on such prop erty? We conclude it does not. (4) Is the invalid portion of the ordinance prescribing minimum dwelling size sev-erable from the remaining portion of the ordinance? We hold it is.\\nIn 1979, the Town enacted the \\\"Subdivision and Building Ordinance\\\" (Ordinance). Section 9 regulated the installation of mobile homes outside of mobile home parks. The ordinance was amended in 1981. The Town adopted a revised version of the Ordinance entitled \\\"Land Division and Building Ordinance\\\" on March 11, 1984. Section 9 is substantially the same in each of the ordinances. The parties do not raise the issue as to which of the specific ordinances apply.\\nIn 1983, Mr. Cushman purchased property in the Town and allowed another person to place a mobile home on it. The Town initiated this action in 1985 to have the mobile home removed from the property and a forfeiture assessed against Cushman. Three violations of the ordinance were alleged: (1) Cushman had failed to apply for or receive a building permit; (2) The mobile home failed to meet the minimum size requirements; (3) The mobile home had no septic system nor well. The parties stipulated the facts including the mobile home's violation of the ordinance. Cushman's sole contention to the circuit court was that the ordinance is a zoning ordinance which has been preempted by a zoning ordinance adopted by Juneau county.\\nThe circuit court issued a memorandum decision granting summary judgment in favor of the Town. The circuit court phrased the issue as: \\\"Whether or not, in view of enactment of a Juneau County zoning ordinance, the town may enact an ordinance such as has been done by the plaintiff here to regulate mobile homes under its police power.\\\" It concluded that pursuant to sec. 66.058(2) (b), Stats., the Town did have such statutory authority. A judgment was issued assessing a forfeiture against Cushman and he appealed.\\nThe court of appeals reversed the circuit court and held that the Town had no authority pursuant to sec. 66.058(2)(b), Stats., to enact the ordinance. Clearfield, 143 Wis. 2d at 557-59. It also concluded that the ordinance was a zoning ordinance \\\"because its purpose is to control land use and building development through regulation of existing conditions.\\\" Id. 143 Wis. 2d at 561. The ordinance was held invalid \\\"because it was not approved by the Juneau County Board.\\\" Id. Although the court of appeals acknowledged portions of the ordinance may have been valid, it concluded the severability clause of the ordinance was ineffective. Id. at nn. 8-9.\\nIn his dissent Judge Sundby opined the ordinance was not a zoning ordinance. Id. 143 Wis. 2d at 562 (Sundby, J., dissenting). He noted portions of the ordinance which he concluded Cushman had no standing to challenge were considered by the majority in reaching its decision that the ordinance was a zoning ordinance. Id. 143 Wis. 2d at 566. He also concluded the severability clause was effective. Id. Finally, he opined that the only issue before the court of appeals was whether the county's zoning ordinance preempted the Town's ordinance, and not whether the Town had independent authority to enact the ordinance. Id. 143 Wis. 2d at 452 n. 2, 567. This court accepted the Town's petition for review.\\nThe Town asserts Cushman only has standing to challenge those provisions sought to be enforced against him. It further contends that it possesses statutory authority to regulate the matters enforced against Cushman. If it is without authority in one or more of the provisions, the Town maintains those provisions are severable from the valid portion of the ordinance.\\nCushman argues he may challenge the entire ordinance and that the Town has regulated matters beyond its statutory authority. He also contends that the ordinance is a zoning ordinance which requires approval by the county board which was not obtained and, therefore, the ordinance is invalid. Cushman asserts the severability clause is ineffective and the whole ordinance must be declared void.\\nThe court of appeals examined various provisions of the ordinance, including those not enforced against Cushman, and held it was a zoning ordinance. We conclude that Cushman is without standing to challenge those portions not enforced against him and, therefore, we will not consider the unenforced provisions here.\\n\\\" 'Each case, in which the validity of such restrictions is challenged, must be determined on the facts that are directly applicable to the property of the parties complaining.' \\\" Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 648, 211 N.W.2d 471 (1973) (citation omitted); See also Jacobs v. Major, 132 Wis. 2d 82, 103, 390 N.W.2d 86 (Ct. App. 1986) (\\\"A statute attacked as unconstitutional must affect the litigant in some way\\\") modified on other grounds 139 Wis. 2d 492, 407 N.W.2d 832 (1987); Mast v. Olsen, 89 Wis. 2d 12, 16, 278 N.W.2d 205 (1979) (\\\"A party has standing to challenge a statute if that statute causes that party injury in fact and the party has a personal stake in the outcome of the action\\\"); Milwaukee, Etc. v. Milwaukee County Park Com'n., 477 F. Supp. 1210, 1215-16 (1979) (plaintiffs lack standing to challenge provisions of Milwaukee ordinance which were not applied against them). Here, only the provisions on the requirements of a building permit, minimum dwelling size, wells and septic systems are being enforced against Cushman; the remaining provisions are not. He has no interest in whether the unenforced provisions are valid. Consequently, he lacks standing to challenge them.\\nWhether the Town has authority to enact this ordinance is a question of statutory interpretation. Questions of statutory interpretation are questions of law which this court reviews de novo. Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989).\\nThe basic question is: Does the Town have statutory authority to enact this particular ordinance? The court of appeals concluded the Town's ordinance \\\"is a zoning ordinance because its purpose is to control land use and building development through regulation of existing conditions.\\\" Clearfield, 143 Wis. 2d at 561. \\\"Zoning is governmental regulation of the uses of land and buildings according to districts or zones.\\\" 8 McQuillin Municipal Corporations sec. 25.01 at 6 (3rd ed. 1983). It \\\"is exclusively concerned with use regulation . . .\\\"Id. at 7. \\\"Zoning definitely is use planning and regulation according to districts or zones . It seeks the most appropriate use of land, the preservation of the character of areas, the protection of existing property values and business, the stability of plans and conditions, the safeguarding of future developments and use\\\" State ex rel. Albert Realty Co. v. Village Board, 7 Wis. 2d 93, 98, 95 N.W.2d 808 (1959) quoting 8 McQuillin, Municipal Corporations sec. 25.08 at 31, 33 (2d ed.).\\nHere, however, the Town does not regulate the use of property by the establishment of zones or districts. There is no regulation as to what the property may be used for. Rather the ordinance establishes the minimal requirements for land to be used as a site for a mobile home. Section 9 permits mobile homes to be installed both as dwellings and commercial structures. Consequently, we hold the Town's ordinance is not a zoning ordinance. Thus, it is not void for failing to be approved by the Juneau County Board.\\nThis is the only issue the parties presented to the circuit court for determination. On review, however, the Town has cited other statutory authority for enabling it to regulate the matters in question here. We conclude there is statutory authority for the Town's enactment of the provisions requiring a building permit, a well and connection to a sewage disposal system. We also conclude that the minimum dwelling size requirement, however, is without statutory authority and void, but severa-ble from the rest of the ordinance.\\n\\\"[A] town has only such powers as are specifically delegated to it by the legislature.\\\" Adamczyk v. Caledonia, 52 Wis. 2d 270, 273, 190 N.W.2d 137 (1971). It also has such powers which \\\"are necessarily implied\\\" from any power conferred on it by a statute. Pugnier v. Ramharter, 275 Wis. 70, 73, 81 N.W.2d 38 (1957). Regulations which could be enacted via a zoning ordinance may also be enacted by other statutory authority. Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 70, 327 N.W.2d 642 (1983) (Minimum lot size requirements may be established by a zoning ordinance or pursuant to sec. 236.45, Stats.). An ordinance is presumed valid and the burden is on the challenger to prove otherwise. State ex rel. Grand Bazaar v. Milwaukee, 105 Wis. 2d 203, 208-09, 313 N.W.2d 805 (1982).\\nSection 9 of the Ordinance states: \\\"A trailer or mobile home may be installed as a dwelling or commercial structure in the Town of Clearfield only if a building permit is previously obtained.\\\" It is agreed that the mobile home on Cushman's property is subject to this section. From its statutorily assigned responsibilities, the Town has implicit power to require building permits. Building permits allow the Town to monitor the development on property within its limits. Under sec. 60.55, Stats. 1983-84, the Town is responsible for providing fire protection. Building permits inform the Town as to what structures are located in the Town, and where they are located.\\nThe Town is also responsible for the assessment of taxes on property within its borders. See chapter 70 Stats. 1983-84. Building permits provide vital information as to the value of structures and property. It must be necessarily implied that the Town is able to monitor the type of structures located in the Town to fulfill these statutory duties. The building permit enables the Town to do so.\\nFurther, sec. 66.036, Stats. 1983-84, provides that no town shall issue a building permit unless there is adequate provisions for sewage disposal. \\\"[W]hen specific duties are intrusted to [towns] and made obligatory on their part, it must be assumed that it was the legislative intent to give them ample authority to carry out those duties.\\\" Milwaukee v. Sewerage Comm., 268 Wis. 342, 354, 67 N.W.2d 624 (1954) quoting Dekorra v. Wisconsin River Power Co., 188 Wis. 501, 506, 205 N.W. 423 (1926). We conclude the building permit provision is valid.\\nSection 9 of the ordinance also requires that \\\"Trailers or mobile homes must be connected to sewage disposal system and have a well.\\\" Local governmental units are responsible to enter property and remove a nuisance caused by improper sewage disposal, sec. 146.14(2), Stats. 1983-84. Further, the Town may not issue a building permit unless a satisfactory sewage disposal system is installed. See sec. 66.036(1), Stats. 1983-84, at p. 21, n. 8. Section 144.265(4) makes a town responsible to a landowner whose water supply is damaged. Because of the Town's responsibility to supply water for those whose water supply is damaged and to remove sewage which constitutes a nuisance, power to regulate these matters is necessarily implied from these statutory responsibilities. These provisions of the ordinance are accordingly a valid exercise of the Town's power. Because we find statutory authority independent of sec. 66.058(2) (b) for the Town's enactment of the Ordinance, we need not review the circuit court's or the court of appeals' determination as to its applicability.\\nAt oral argument the Town conceded that it could find no express or implicit authority for its minimum size provision of 720 square feet for the dwelling. We also can find no authority. This, however, does not necessarily render the entire ordinance invalid.\\n\\\"[T]he determination as to whether an invalid portion of a statute or ordinance fatally infects the remainder of such law is a question of legislative intent.\\\" Madison v. Nickel, 66 Wis. 2d 71, 78, 223 N.W.2d 865 (1974). \\\"If a statute consists of separable parts and the offending portions can be eliminated and still leave a living, complete law capable of being carried into effect 'consistent with the intention of the legislature which enacted it in connection with the void part,' the valid portions must stand. This is the rule and it has been consistently followed.\\\" Id. 66 Wis. 2d at 79-80 quoting State ex rel. Reynolds v. Sande, 205 Wis. 495, 503, 238 N.W. 504 (1931).\\nIt is well established that the elimination of even material provisions in an act as enacted, because of the invalidity of such provisions, does not render the remaining valid provisions thereof ineffective, if the part upheld constitutes, independently of the invalid portion, a complete law in some reasonable aspect, unless it appears from the act itself that the legislature intended it to be,effective only as an entirety and would not have enacted the valid part alone.\\nId. 66 Wis. 2d at 79 quoting State ex rel. Milwaukee County v. Boos, 8 Wis. 2d 215, 224, 99 N.W.2d 139 (1959).\\n\\\"[T]he existence of a severability clause, while not controlling, is entitled to great weight in determining whether valid portions of a statute or ordinance can stand separate from any invalid portion.\\\" Id. 66 Wis. 2d at 80. The Town's ordinance contains a severability clause which states:\\nSection 11. Should any section, clause or provision of this ordinance be declared by the courts to be invalid, the same shall not affect the validity of the ordinance as a whole or any part thereof other than the part so declared to be invalid.\\nThe invalid clause of section 9 relating to the minimum dwelling size of 720 feet can be removed without the rest of the section being rendered invalid. It cannot be said that the Town would not have passed the ordinance without this provision. We hold, therefore, that this clause is severable and the remainder of the ordinance is valid and enforceable.\\nIn conclusion we hold the Town's \\\"Land Division and Building Ordinance\\\" is not a zoning ordinance. Consequently, the Juneau County Board need not have approved those parts of the ordinance here under consideration. We further hold that the provisions relating to requiring building permits, wells, and connection to waste disposal systems are valid and enforceable enactments by the Town. The minimum dwelling size, however, has no statutory basis and is void. That portion is, nevertheless, severable from the rest of the ordinance.\\nBy the Court. \\u2014 The decision of the court of appeals is reversed.\\nThe circuit court relied on the amended ordinance of 1981. The court of appeals cited the 1979 version and noted: \\\"This ordinance was amended and modified in 1981. It was superceded and replaced in 1984. The 1984 version is substantially the same as the prior version.\\\" Id. 143 Wis. 2d at 556, n. 4.\\nThe 1979 version of the ordinance provides in part:\\nSection 9. A trailer or mobile home may be installed as a dwelling or commercial structure in the Town of Clearfield only if a building permit is previously obtained. Permitting the use of such trailer or mobile home shall be subject to the restrictions as set forth herein for other dwellings and business structures.\\nNo trailer or mobile home shall be authorized or permitted unless it has a minimum of 720 square feet. It is to be located on lot or parcel of not less than 3 acres and must meet all other requirements for such structures as set forth in this ordinance. No permits shall be issued for a trailer or mobile home unless it is to be permanently affixed to the real estate so as to be an integral part thereof within 4 months from the date the permit is issued.\\nTrailers or mobile homes must be connected to sewage disposal system and have a well.\\nAccording to the record, the mobile home was occupied on various dates in 1983 through 1985. Those dates are: November 21-25, 1983; April 10-11, 1984; July 3-5, 1984; November 21-23, 1984; June 10-12, 1985; July 1-5, 1985; and November 21-27, 1985.\\nIn 1977, Juneau county adopted a comprehensive zoning ordinance. The Town lies within Juneau county.\\nSection 66.058(2)(b), Stats. 1983-84, provides:\\n66.058 Mobile home parks . . . (2) License and revocation or suspension thereof. . . (b) In order to protect and promote the public health, morals and welfare and to equitably defray the cost of municipal and educational services required by persons and families using or occupying trailers, mobile homes, trailer camps or mobile home parks for living, dwelling or sleeping purposes, each city council, village board and town board may establish and enforce by ordinance reasonable standards and regulations for every trailer and trailer camp and every mobile home and mobile home park; require an annual license fee to operate the same and levy and collect special assessments to defray the cost of municipal and educational services furnished to such trailer and trailer camp, or mobile home and mobile home park. They may limit the number of units, trailers or mobile homes that may be parked or kept in any one camp or park, and limit the number of licenses for trailer camps or parks in any common school district, if the mobile housing development would cause the school costs to increase above the state average or if an exceedingly difficult or impossible situation exists with regard to providing adequate and proper sewage disposal in the particular area. The power conferred on cities, villages and towns by this section is in addition to all other grants and shall be deemed limited only by the express language of this section.\\nAt oral argument, counsel for Cushman contended the regulation of matters by the Town's ordinance are already addressed in secs. 101.60, (ONE-AND 2-FAMILY DWELLING CODE) and 101.70, (MANUFACTURED BUILDING CODE) Stats., and by the Wis. Admin. Code, sec. ILHR chapters 20-25. The court of appeals noted this argument was raised for the first time on appeal and refused to address it. Clearfield, 143 Wis. 2d at 555, n. 2. We agree. We further note, however, that the Wisconsin Administrative Code sec. ILHR 20.05(8), states \\\"[t]he provisions of this code do not apply to . . . mobile homes.\\\" Consequently we do not consider them.\\nCushman correctly identifies these cases cited by the Town, Kmiec and Jacobs, as dealing with the constitutionality of legislative enactments. He further notes that challenges to local ordinances need not always be constitutional challenges nor adopt constitutional standards. See Whitefish Bay v. Wisconsin E.R. Board, 34 Wis. 2d 432, 447, 149 N.W.2d 662 (1967). He fails, however, to explain why that distinction is significant or that it requires another \\\"standing\\\" test to be applied here. We find no such requirement.\\nSection 60.55(1), Stats. 1983-84, provides:\\n60.55 Fire protection (1) General authority, (a) The town board shall provide for fire protection for the town . . .\\nSection 66.036(1), Stats. 1983-84, provides:\\n66.036 Building on unsewered property. (1) No county, city, town or village may issue a building permit for construction of any structure requiring connection to a private domestic sewage treatment and disposal system unless a system satisfying all applicable regulations already exists to serve the proposed structure or all permits necessary to install such a system have been obtained.\\nSection 146.14(2), Stats. 1983-84, provides:\\n146.14 Nuisances . . . (2) If a nuisance, caused by improper sewerage disposal facilities, is found on private property the local health officer or the chairman of the local board of health shall notify the owner and the occupant of such property by registered mail with return receipt requested of the presence of such nuisance and order its abatement or removal within 30 days of receipt of notice. The officer shall also notify the local governing body of the nuisance. If the nuisance is not corrected by that date, the local governing body shall immediately enter upon the property and abate or remove the nuisance or may contract to have the work performed.\\nSection 144.265(4) (b), Stats. 1983-84, provides:\\n144.265 Damage to water supplies . . . (4) . . . (b) A person who submits information [that their water supply is damaged] may file a claim with the town, village or city where the private water supply is located. The town, village or city shall supply necessary amounts of water to replace that water formerly obtained from the damaged private water supply.\"}"

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+"{\"id\": \"8667855\", \"name\": \"STATE of Wisconsin, Plaintiff-Appellant, v. AMERICAN TV & APPLIANCE OF MADISON, INC., Defendant-Respondent-Petitioner\", \"name_abbreviation\": \"State v. American TV & Appliance of Madison, Inc.\", \"decision_date\": \"1989-08-18\", \"docket_number\": \"No. 85-2066\", \"first_page\": \"175\", \"last_page\": \"193\", \"citations\": \"151 Wis. 2d 175\", \"volume\": \"151\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T00:16:57.050432+00:00\", \"provenance\": \"CAP\", \"judges\": \"ABRAHAMSON and BABLITCH, JJ., took no part.\", \"parties\": \"STATE of Wisconsin, Plaintiff-Appellant, v. AMERICAN TV & APPLIANCE OF MADISON, INC., Defendant-Respondent-Petitioner.\", \"head_matter\": \"STATE of Wisconsin, Plaintiff-Appellant, v. AMERICAN TV & APPLIANCE OF MADISON, INC., Defendant-Respondent-Petitioner.\\nSupreme Court\\nNo. 85-2066.\\nFiled August 18, 1989.\\n(Also reported in 443 N.W.2d 662.)\", \"word_count\": \"4681\", \"char_count\": \"28797\", \"text\": \"HEFFERNAN, CHIEF JUSTICE.\\nWe take jurisdiction of the motion filed by the Attorney General, on behalf of the State, asking that we vacate our decision of November 2, 1988, in the captioned case for the alleged reason that a justice of this court, the Honorable William A. Bablitch, who participated in that decision and was among the four-justice majority deciding the case, was disqualified by law. That alleged disqualification is based on the fact that, prior to taking part in the case, Justice Bablitch had purchased merchandise from the respondent, American, some of it through a friend who worked as salesman and department manager at American, at discounted prices assertedly more favorable than those offered to the general public. On the basis of applicable law and on the facts alleged by the State in its motion and supporting papers, we determine Justice Bablitch's participation in this case was neither impermissible nor improper. As the motion has no merit, legally or factually, we deny it.\\nBefore addressing its merits, we first determine whether the court has jurisdiction to consider the motion at all. In ordinary course, this court has no jurisdiction to reconsider a decision after the 20-day time period for filing a motion for reconsideration set by sec. (Rule) 809.64, Stats., has expired. Here there was no motion for reconsideration. Moreover, in its response to the motion, the respondent has asserted that the court does not have jurisdiction to vacate or modify the decision because the case was properly remitted to the lower court on April 5, 1989.\\nThe general rule is that, after remittitur, the Supreme Court has no jurisdiction to vacate or modify its judgment. Ott v. Boring, 131 Wis. 472, 110 N.W. 824 (1907). There, a motion was filed after remittitur seeking modification of the court's mandate on the ground of newly-discovered evidence. Denying a companion motion to have the remitted record returned to the court for determination of the modification motion, the court stated:\\n[T]he rule has been thoroughly adopted [in Wisconsin] that, when the record upon an appeal has been regularly transmitted to and filed with the court from which it originally came, this court's jurisdiction over the cause, as also to vacate or modify its own judgment, is at an end . . . Id., 491-92.\\nEarlier in its opinion the court had qualified that rule: \\\"[I]n the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction,\\\" Id., 487. Explicitly rejecting the practice then followed in New York of allowing post-remittit\\u00fcr recall of a record and reassumption of jurisdiction in order for an appellate court to review its decision, the court held that if post-remittitur jurisdiction is not conferred by statute, the Supreme Court has no jurisdiction over a case once it has been properly remitted to the lower court. Id., 492-93.\\nUnder this rule, which continues to be the rule in Wisconsin, because the record in this case was remitted to the trial court on April 5, 1989, we would not have jurisdiction to consider the motion to vacate our decision were it not for the State's allegation that a member of this court who participated in it was disqualified by law from doing so. Where a justice who participated in a case was disqualified by law, the court's judgment in that case is void. Case v. Hoffman, 100 Wis. 314, 72 N.W. 390, reh'g granted 74 N.W. 220 (1898). In Case, Justice Newman, one of the three justices of the five-member Supreme Court who constituted the majority and the author of the court's opinion, had previously been a circuit judge and had sustained a demurrer in the case in the trial court. His order sustaining the demurrer earlier had been reversed on appeal and, on remand, the case was assigned to another judge. On appeal from judgment for the plaintiff following remand, the Supreme Court reversed, whereupon the respondent moved for rehearing and moved to set aside the judgment on the ground that Justice Newman was disqualified by law. Prior to the court's consideration of the motion to set aside the judgment, Justice Newman died.\\nIn determining the motion to set aside the judgment, the court applied the disqualification statute which provided: \\\"No judge of an appellate court . . . shall decide or take part in the decision of any cause or matter which shall have been determined by him, while sitting as a judge of any other court, unless there shall not be a quorum without him.\\\" Section 2580, R.S. 1878. Acknowledging the certainty that Judge Newman had concluded he was not disqualified and that it was his duty to participate in the decision, the court nevertheless held that Justice Newman was legally disqualified to participate in the case. Regarding the effect of that disqualification, the court said,\\nWhere, however, it is expressly declared by a constitutional or statutory provision that in a certain specified case a judge shall not sit, or shall not act, or shall take no part in the decision, the almost uniform current of authority is to the effect that any judgment rendered by such judge in such a case is coram non judice and void . . . The same rule has been applied when the disqualified judge has acted simply as one of a bench composed of several judges, even though the vote of the disqualified judge was not necessary to the decision; and with greater force would the reason of the rule apply when, as in this case, such judge gave the casting vote and decided the cause. Id., 356-57.\\nBecause the judgment was void, the court rejected the option of entering judgment without Justice Newman's vote and ordered the case reargued.\\nHere, if Justice Bablitch were disqualified by law from participating in this case, as the State contends, the court's decision would be void and, notwithstanding and Ott postremittitur rule, we would retain jurisdiction to vacate or modify it. \\\"A judgment or order which is void may be expunged by a court at any time. Such right to expunge a void order or judgment is not limited by statutory requirements for reopening, appealing from, or modifying orders or judgments.\\\" State ex rel. Wall v. Sovinski, 234 Wis. 336, 342, 291 N.W. 344 (1940). Consequently, the Ott rule is inapplicable to the circumstances alleged here.\\nWe therefore conclude that the court has jurisdiction to consider the State's motion and we address it on the merits. Doing so, we determine that neither on the law asserted nor on the facts alleged therein can it be established that Justice Bablitch was disqualified by law from participating in this case. Furthermore, the motion is so devoid of arguable merit as to render further briefing by the parties unnecessary.\\nThe State contends that Justice Bablitch was disqualified under sec. 757.19(2)(g), Stats., because \\\"[h]is receipt of discounts from a litigant greater than that available to the general public on several thousands of dollars in purchases based on an arrangement with an American TV manager certainly would leave his impartiality open to reasonable question.\\\" That contention is meritless: neither the statute nor the cases cited by the State mandate Justice Bablitch's disqualification.\\nThe mandatory disqualification statute, sec. 757.19(2), Stats., establishes seven situations in which a judge must disqualify himself or herself from an action or proceeding. The first six of these are susceptible of objective determination, that is, without recourse to the judge's state of mind. For example, subsection (a) requires disqualification when a judge is related to any party or counsel to a party or the spouse of any party or counsel within the third degree of kinship. The effect, if any, of such a relationship upon a judge's ability to act impartially in a case is immaterial; the very existence of the relationship creates a disqualification by law. The same type of objective determination applies to the situations described in subsections (b) through (f).\\nHowever, the seventh situation requiring disqualification set forth in sec. 757.19(2), Stats., concerns not what exists in the external world subject to objective determination, but what exists in the judge's mind. Subsection (g) requires disqualification \\\"[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.\\\" The determination of a basis for disqualification here is subjective.\\nSection 757.19(2) (g), Stats., mandates a judge's disqualification only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner. It does not require disqualification in a situation where one other them the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner; neither does it require disqualification, as the State contends, in a situation in which the judge's impartiality \\\"can reasonably be questioned\\\" by someone other than the judge.\\nThe State does not allege that Justice Bablitch had determined that there was an appearance of his inability to act impartially. Neither does the State allege that Justice Bablitch had determined he could not act in an impartial manner in this case. Indeed, the papers filed with the State's motion show exactly the opposite. After State of Wisconsin v. American was decided, the Judicial Commission conducted an investigation into allegations that Justice Bablitch had engaged in judicial misconduct on the basis of facts substantially the same as those presented here. Following the Judicial Commission's dismissal of those misconduct allegations on June 9, 1989, Justice Bablitch sent the parties in this case a letter on June 21,1989 in which he unequivocally stated that, prior to taking part in the case, he had determined he could act fairly and impartially.\\nThe basis for disqualification under sec. 757.19(2)(g), Stats., is a subjective one. Accordingly, the determination of the existence of a judge's actual or apparent inability to act impartially in a case is for the judge to make. To the extent prior cases cited by the State suggest that a reviewing court, in determining whether a judge should have recused himself, is to independently and objectively determine whether there was an appearance of impartiality, State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977), or whether the judge's impartiality can reasonably be questioned, State v. Walberg, 109 Wis. 2d 96, 325 N.W.2d 687 (1982), they are inapplicable to a determination whether a judge was disqualified by sec. 757.19(2) (g), Stats.\\nThe State cites Asfoor and Walberg as authority for its contention that Justice Bablitch was disqualified by law. However, neither case was decided under a disqualification statute. Asfoor applied a provision of the Code of Judicial Ethics that a judge should administer the law free of partiality and the appearance of partiality, SCR 60.01(3), to determine whether a judge should have recused himself, concluding in that case that there was no appearance of partiality by virtue of the judge's comments concerning a criminal defendant's guilt made out of the presence of the jury. Even though the court acknowledged that the judge had no doubt of his ability to preside impartially and that he had acted fairly, it determined that, in some situations, a judge ought to recuse himself, based on an American Bar Association standard set forth in the Function of the Trial Judge: \\\"The tried judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned.\\\" (Emphasis supplied.) Asfoor, supra, 436. This clearly is a subjective standard, even though the court applied the \\\"impartiality can be questioned\\\" basis objectively, consistent with the Code of Judicial Ethics provision.\\nIn State v. Walberg, supra, a defendant sought the judge's recusal because of his conduct toward defense counsel and the judge refused to remove himself. On review, the court applied what it considered the two tests for recusal established in Asfoor: a subjective test based on the judge's determination of his or her impartiality and an objective test based on whether the judge's impartiality \\\"can reasonably be questioned.\\\" Walberg, supra, 106. Although it concluded that the judge's actions during the pretrial motion hearing created the appearance of partiality against the defendant, the court held the judge's failure to recuse himself to constitute harmless error.\\nThe court in Walberg did not set forth the standard it used in considering the judge's conduct as requiring recusal but it may reasonably be inferred that it was the Code of Judicial Ethics standard applied in Asfoor because the court's determination was explicitly based on the Asfoor tests for recusal. It is certain the court was not applying sec. 757.19(2)(g), Stats., the disqualification statute at issue here, which it cited in a footnote as establishing as a standard for disqualification the same two tests for recusal established in Asfoor. Indeed, had the court in Walberg been applying the disqualification statute, it is inconceivable that it would have held a violation of the mandatory disqualification law to be harmless error.\\nBecause Asfoor and Walberg determined recusal issues under the Code of Judicial Ethics, they are not applicable here. The Code of Judicial Ethics governs the ethical conduct of judges; it has no effect on their legal qualification or disqualification to act and a judge may be disciplined for conduct that would not have required disqualification under sec. 757.19, Stats. In some instances the Code measures judicial conduct by an objective standard, as in the provision that a judge should administer the law free of \\\"the appearance of partiality,\\\" and a judge may be disciplined for violating such standard, even though subjectively the judge had determined there was no ethical violation.\\nThe standard by which to measure the basis for disqualification under sec. 757.19(2), Stats., is evident. The situations requiring disqualification under subs, (a) through (f) are objectively measurable. However, in sub. (g), because the basis for disqualification is subjective, requiring the judge's determination of an actual or apparent inability to act impartially, there is no standard to apply on review other than an objective one limited to establishing whether the judge made a determination requiring disqualification.\\nThe State suggests no standard to be applied to a judge's determination of actual or apparent inability to act impartially. Indeed, it asserts that, under the statute, the judge's determination is irrelevant; the reviewing court is to determine whether there was an appearance of partiality or whether the judge's impartiality was open to \\\"reasonable question.\\\" As stated above, neither such determination would create a disqualification under the statute.\\nHaving determined that Justice Bablitch was not disqualified by law from acting in this case on the basis that his impartiality reasonably can be questioned, we next consider whether the facts alleged in the State's motion support a conclusion that Justice Bablitch made a determination that there was the appearance of his inability to act impartially, thereby requiring his disqualification under sec. 757.19(2)(g), Stats., even though the State's motion does not allege that he did so.\\nThe factual basis of the State's contention that Justice Bablitch was disqualified by law in this case is derived from the letter Justice Bablitch sent to the parties following the Judicial Commission's dismissal of misconduct allegations concerning his dealings with American. Those dealings, which the State suggestively characterizes as an \\\"arrangement,\\\" consisted of Justice Bablitch's having purchased between 1983 and 1987 merchandise of an approximate value of $3,000. He purchased some of that merchandise through a friend, who was a salesman and manager of American's television division. At the time of those purchases, American did not display price tags on its merchandise but had a policy of allowing customers to negotiate a price with the salesperson. At times, the negotiated sale price would be at American's cost or below that cost, but Justice Bab-litch made no purchases at prices below cost.\\nIn making purchases of electronic equipment, Justice Bablitch would seek his friend's advice and select from alternatives suggested by his friend. Justice Bab-litch told his friend that he did not want any favors and his friend assured him that there were no favors involved and that he would be paying a price available to other members of the general public. When Justice Bablitch made his selection of merchandise, his friend would set a price without negotiating and it was Justice Bablitch's understanding with his friend that the price was above cost and one that was fair to him and to American. Justice Bablitch did not deal exclusively with American; during the relevant time period, he purchased appliances from other retailers.\\nIn his letter, Justice Bablitch informed the parties of facts that were unknown to him at the time he determined he could act impartially in the case but were brought to his attention during the subsequent investigation by the Judicial Commission. The stated purpose of his letter to the parties was to disclose these additional facts \\\"in the interests of fairness.\\\" Justice Bab-litch stated that he does not believe the additional facts, if known at the time, would have affected his determination that he could act impartially.\\nThose additional facts are the following: his friend's compensation from American reflects in small part the overall profitability of American through a profit-sharing plan and perhaps a discretionary bonus plan; his friend has no actual equity interest in American; a comparison by the Judicial Commission of his purchases with ten purchases made closest in time to his by ten members of the general public showed that Justice Bab-litch received merchandise at a price \\\"less than the average charged to the sample\\\"; American's practice was to sell items at favorable prices to employees and their friends, neighbors, relatives and acquaintances; all of Justice Bablitch's purchases were at a price above American's cost.\\nWe cannot, on the basis of all of these facts, conclude that Justice Bablitch made a determination that would require his disqualification under sec. 757.19(2)(g), Stats. He states in his letter that he had determined that he could act fairly and impartially; the facts do not suggest he made a determination that there was an appearance that he could not do so. These facts do not even support the State's contention that there was, objectively, an appearance of partiality or that Justice Bablitch's impartiality can reasonably be questioned.\\nJustice Bablitch purchased from American merchandise that had no list price, without any notice of the amount discounted from a hypothetical \\\"list price\\\" and with every reason to believe the price he paid was discounted to no greater extent than prices available to the general public. Regarding the price he paid for the merchandise he purchased, the Judicial Commission's inves tigation disclosed that it was less than the average paid by ten members of the general public in purchases made closest in time to his own. From this it is reasonable to conclude that the price he paid was higher than that paid by at least some of the members of the general public sampled, persons who were not friends of a salesman or department manager.\\nThese undisputed facts completely fail to support the State's contention that \\\"[Justice Bablitch's] receipt of discounts from a litigant greater than that available to the general public on several thousands of dollars in purchases based on an arrangement with an American TV manager certainly would leave his impartiality open to reasonable question.\\\" Even under the objective test urged by the State, we are, on these facts, unable to conclude that there was an appearance of Justice Bab-litch's inability to act in an impartial manner in this case or that his impartiality is open to reasonable question.\\nThe deficiency of the factual record presented is pointed up by the State's letter to Justice Bablitch, a copy of which was filed together with its motion, asking that he \\\"authorize the Judicial Commission to release the file at this time to the Court so that the Court can consider the record in its entirety.\\\" The State intimates thereby that there is material in it which it believes will support its position, material that it is unable to allege as fact.\\nWe do not address the State's assumption that Justice Bablitch has the power to authorize the release of the Judicial Commission's investigative file other than to cite the relevant statute:\\n757.93 Confidentiality of proceedings. (l)(a) All proceedings under ss. 757.81 to 757.99 relating to misconduct or permanent disability prior to the filing of a petition or formal complaint by the commission are confidential unless a judge waives the right to confidentiality in writing to the commission. Any such waiver does not affect the confidentiality of the identity of a person providing information under par. (b).\\nWe have no reason to intimate that a judge's waiver of the personal right of confidentiality under the statute would authorize the Judicial Commission to release its file, whether to the court or to anyone else, or that the Judicial Commission would be required to do so in the event of such a waiver.\\nIn response to the State's suggestion that the court would not have the entire record before it on this motion without the Judicial Commission's investigative file, we are informed that the letter Justice Bablitch wrote to the parties disclosing the additional facts brought to his attention during the investigation was first submitted in draft form to the executive director of the Judicial Commission for review as to its accuracy. Further, the executive director and the attorney who had conducted the investigation made some revisions and additions to it prior to its being sent to the parties. We conclude from this that Justice Bablitch's letter sets forth all of the facts necessary or relevant to our inquiry into this matter, noting that the State now accepts the letter as such.\\nEven if we were to have the Judicial Commission's investigative file before us, the material in it could not salvage the State's deficient allegations of fact for the reason that the Judicial Commission has no fact-finding authority. The Judicial Commission is charged by statute to investigate and, when it finds probable cause to do so, file a complaint in the Supreme Court and prosecute allegations of judicial misconduct and disability. Secs. 757.81-757.99, Stats. The statutory procedure vests the fact-finding responsibility in judicial misconduct cases in the judicial conduct panel, which is constituted after the Judicial Commission files a formal complaint. After it hears the case, the panel makes findings of fact and conclusions of law and a recommendation for discipline. The Supreme Court then reviews the panel's findings and conclusions, considers its recommendation and imposes discipline as it deems appropriate; it is not statutorily authorized to make findings of fact.\\nAccordingly, the material in the Judicial Commission's investigative file could be no more than statements, allegations, opinions, physical evidence and other material that has not been subjected to a fact-finding process, nor can be, now that the Judicial Commission has dismissed all allegations of misconduct on which the State bases its charge of disqualification.\\nWe emphasize that no complaint alleging judicial misconduct on Justice Bablitch's part has been filed. Following the Judicial Commission's investigation, all allegations were dismissed. Thus, there is no charge that Justice Bablitch acted unethically.\\nWe are concerned that the Attorney General, acting on behalf of the State, has impugned the integrity of a decision of this court by alleging the disqualification by law of a participating justice in a motion devoid of any basis in fact or law. We also find disturbing the cavalier statement attributed in the press to Attorney General Hanaway concerning his decision to file the motion: \\\"I treated it as a routine matter and so did our assistant attorneys general.\\\"\\nAn attack on the validity of a judgment of the state's highest court on the ground of a member's disqualification by law for an apparent inability to act impartially is not, nor can we conceive of it ever being, a \\\"routine matter.\\\" It is obvious from the precedents of this court that the motion is not routine. In Case v. Hoffman, supra, referred to above, this court pointed out the far-from-routine implication of an allegation that a judgment of this court is void because of the alleged disqualification of one of its members:\\n. . . the question now raised as to Justice Newman's alleged disqualification to participate in the determination of this case is not only a serious one, but also an unwelcome and delicate one to his associates. 100 Wis. 314, 353-54.\\nThere, the motion was appropriate because Justice Newman had acted in the Supreme Court on a case that had been before him as a trial judge. Nonetheless, the court did not consider the motion a routine one.\\nUnlike Case, here, the affront to this court is egregious, for the disqualification allegations are unfounded in law, based on facts heretofore rejected by the Judicial Commission after its thorough investigation as insufficient even to support a finding of probable cause to file a complaint charging judicial misconduct. It is alarming that one who has any regard for the system of justice should assert the invalidity of this court's actions on grounds not reasonably supported by law and fact.\\nTrue, the Attorney General lost a case which his office thought should have been won. Indeed, we note that three of the members of the court, including the author of this opinion, dissented from the decision. But disagreeing with the resolution of a cas\\u00e9 on the merits is a far cry from asserting either unethical conduct or disqualification by law as the basis for charging that the court's action is void.\\nThe court cannot regard this motion to vacate the mandate of this court as mere routine. Unfortunately, the motion's careless employment of the facts and the perfunctory treatment of the law suggests that this most serious matter, an attack upon a member of this court and indeed upon the integrity of the court itself, was treated as mere routine.\\nFor the reasons stated herein, we conclude that the motion must be denied.\\nBy the Court. \\u2014 Motion denied.\\nABRAHAMSON and BABLITCH, JJ., took no part.\\nSec. 757.19(2), Stats., provides:\\nAny judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:\\n(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.\\n(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.\\n(c) When a judge previously acted as counsel to any party in the same action or proceeding.\\n(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.\\n(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.\\n(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.\\n(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.\\nThe State has since withdrawn from this position. In a letter filed August 15, 1989, replying to American's response to the motion, the State said, \\\"We feel the Court can decide the motion based on the materials submitted to it.\\\" Thus, it acknowledges that the factual exposition in Justice Bablitch's letter to the parties is the complete factual underpinning of its motion.\\nWisconsin State Journal, August 10,1989.\"}"

wis/8667931.json

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+"{\"id\": \"8667931\", \"name\": \"Jeffrey B. TENPAS and Barbara Tenpas, Plaintiffs-Respondents-Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant\", \"name_abbreviation\": \"Tenpas v. Department of Natural Resources\", \"decision_date\": \"1989-03-01\", \"docket_number\": \"No. 86-1430\", \"first_page\": \"579\", \"last_page\": \"592\", \"citations\": \"148 Wis. 2d 579\", \"volume\": \"148\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T01:09:54.563877+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jeffrey B. TENPAS and Barbara Tenpas, Plaintiffs-Respondents-Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.\", \"head_matter\": \"Jeffrey B. TENPAS and Barbara Tenpas, Plaintiffs-Respondents-Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.\\nSupreme Court\\nNo. 86-1430.\\nArgued January 3, 1989.\\nFiled March 1, 1989.\\n(Also reported in 436 N.W.2d 297.)\\nFor the plaintiffs-respondents-petitioners there was a brief by Byron C. Crowns and Crowns, Midthun, Metcalf & Quinn, S.C., Wisconsin Rapids, and oral argument by Byron C. Crowns.\\nFor the defendant-appellant the cause was argued by Maryann Sumi, assistant attorney general, with whom on the brief was Donald J. Hanaway, attorney general.\", \"word_count\": \"3774\", \"char_count\": \"22948\", \"text\": \"HEFFERNAN, CHIEF JUSTICE.\\nThis is an appeal from a decision of the court of appeals which reversed the circuit court for Adams county, Raymond Gieringer, judge. We reverse the decision of the court of appeals. This case presents the question of whether cranberry dams in this state are subject to the financial responsibility requirements of sec. 710.11, Stats., and related portions of chapter 31 of the state statutes.\\nPlaintiffs Jeffrey and Barbara Tenpas are cranberry growers who in July of 1983 bought a cranberry marsh in Adams county. Their land is crossed by Bingham Creek, a navigable stream, and includes two dams across the creek. The dams were built in 1938 for the purpose of cranberry cultivation and have since been used continuously as cranberry dams.\\nOn June 14, 1984, the Wisconsin Department of Natural Resources (DNR) wrote the Tenpases (hereinafter Tenpas) stating that the land they had bought was not properly transferred because Tenpas had no permit for the transfer of the dams as required under sec. 710.11, Stats. The DNR letter suggested that noncom pliance with the dam transfer statute clouded the Tenpas title to the land and would make mortgaging difficult.\\nUnder protest, Tenpas applied for and obtained a DNR dam transfer permit. The issued permit identifies the two dams involved as earthen dikes that have concrete water control structures approximately eight feet wide and eight feet tall.\\nThe dam transfer permit issued by the DNR contained several significant conditions which Tenpas was required to accept to receive the permit. First, Tenpas was ordered to complete certain specified repairs to the dams. Tenpas was also ordered to file a $2,500 letter of credit for ten years, the credit amount to be reduced to $1,000 after the specified repairs were completed. Tenpas was ordered to waive any objection to unlimited DNR inspection of the dam. And finally, the DNR permit established a maximum level for the water behind the upper dam. The permit also reserves for the DNR the right to establish by subsequent order a minimum flow of water from the lower dam.\\nWhile the permit application was pending, Tenpas began this action asking the circuit court to declare that cranberry growers are not subject to sec. 710.11, Stats. Judge Gieringer decided the matter on summary judgment, finding that DNR regulation of cranberry dams under sec. 710.11 would impermissibly conflict with rights granted to growers by the cranberry laws, secs. 94.26 to 94.30, Stats., passed in 1867. Tenpas was granted summary judgment declaring his right to be free of the requirements of sec. 710.11. The DNR appealed.\\nThe court of appeals reversed the judgment, finding that the dam transfer permit requirement of sec. 710.11, Stats., applies to all dams in the state, including cranberry dams; and that the dam transfer permit requirement does not conflict with the scheme set up by the legislature under the cranberry laws. Judge Sundby, dissenting, stated that chapter 31 dam transfer regulations do not apply to cranberry growers. He concluded that the power of cranberry growers to use water and dams for cranberry cultivation has been independently regulated for 120 years by the cranberry laws, without interference by the DNR or its predecessors. Sundby urged that if a legislative act seeks to impose DNR regulation under chapter 31 on the cranberry industry, it must be more advertent than sec. 710.11.\\nThis case involves application of statutes to undisputed facts. It therefore presents a question of law, a question to be reviewed by this court de novo, without deference to the decisions of the courts below. City of Waukesha v. Salbashian, 128 Wis. 2d 334, 347, 382 N.W.2d 52 (1986).\\nThe parties agree that cranberry dam owners were granted certain rights by the legislature in 1867. Presently codified in sec. 94.26 et seq., Stats., the essential grant of the cranberry laws provides:\\nAny person owning lands adapted to the culture of cranberries may build and maintain on any land owned by him such dams upon any watercourse or ditch as shall be necessary .\\nThe cranberry laws also impose liability for, and provide a procedure for recovering, damages that are caused by cranberry dams. Sections 94.27 to 94.30, Stats., provide a comprehensive scheme for the erection and maintenance of cranberry dams and detailed procedures for arbitration and recovery of damages if injury is occasioned by the failure of a dam. They appear to provide strict liability subject to implementation under special procedures.\\nThe DNR urges that the rights granted by the cranberry laws only narrowly limit their general power to regulate dams under chapter 31 of the statutes. The DNR argues that their regulatory power is displaced by the cranberry laws only with regard to whether, where and for what purpose a cranberry cultivator seeks to build a dam. Tenpas argues, on the other hand, that as cranberry growers the specificity of the cranberry laws exempt them from general DNR regulation of dams under chapters 30 and 31.\\nThe DNR has also urged, and the court of appeals majority generally agreed, that this case should focus on sec. 710.11, Stats. The DNR argues that sec. 710.11 establishes regulation of financial responsibility for all dams. Recently enacted, it contains no express exception or cross-reference to the cranberry laws. Even if it conflicts with rights granted under the cranberry laws, the DNR urges us to hold that sec. 710.11 supersedes earlier, contrary law.\\nWe conclude, however, that sec. 710.11, Stats., is not amenable to strictly independent interpretation. On its face, sec. 710.11 itself does not define a new ,or separate wrong. Section 710.11 provides,\\n[a] person may not accept the transfer of the ownership of a specific piece of land on which a dam is physically located unless the person complies with s. 31.14(4).\\nThe statute merely gives, notice of a consequence of failure to comply with sec. 31.14(4), Stats. The legislative note accompanying sec. 710.11 states that the purpose of the provision is to:\\n. ensure that people working in the real estate profession, including brokers, attorneys and mortgage insurance companies, will be aware of the requirements of sections 31.14(4) and 31.185(1) and (2) .\\nAt oral argument, counsel for the DNR agreed that sec. 710.11, Stats., is no more than a provision giving notice of some of the requirements of ch. 31. We therefore consider the relevant portions of chapter 31 of the statutes.\\nChapter 31 of the statutes is entitled, \\\"Regulation of Dams and Bridges Affecting Navigable Waters.\\\" Together with chapter 30 (\\\"Navigable Water, Harbors and Navigation\\\"), it provides a comprehensive scheme for the regulation of Wisconsin's waters, dams and bridges through the use of permits issued by the DNR. The DNR has broad regulatory power under these chapters. For example, sec. 31.02, Stats., empowers the DNR to regulate the level and flow of all navigable water and to determine methods of construction, operation and maintenance of any dam. The legislative commitment to comprehensive administrative regulation of Wisconsin's water use law under chapters 30 and 31 is longstanding, beginning with the water power acts of 1911, 1913 and 1915. A. Kanneberg, Wisconsin Law of Waters, 1946 Wis. L. Rev. 345, 360.\\nThe specific portion of chapter 31 under which the DNR claims to act in this case is sec. 31.14(4), Stats. Section 31.14 regulates dam maintenance by requiring special permits for dam building, improvement or transfer. Section 31.14(2) provides that all dams built or enlarged will be issued permits only after the \\\"applicant furnishes to the department proof of ability to operate and maintain the dam in good condition.\\\" Subsection (4) imposes the same financial responsibili ty requirement whenever the ownership of a dam is transferred.\\nTo determine whether sec. 31.14(4), Stats., applies to cranberry dams, we look to the language of the statute itself. Ball v. District No. 4 Area Board, 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). Operation of sec. 31.14(4) is triggered by the transfer of the ownership of \\\"a dam.\\\" And although we construe sec. 31.14 as a comprehensive statute, the term \\\"dam\\\" is not specifically limited or defined in that section, or elsewhere in the chapter. We might presume that the unqualified term \\\"dam\\\" makes this section applicable to every dam in the state, including cranberry dams.\\nWe do not adopt the construction of sec. 31.14(4), Stats., advocated by the DNR because, as we explain more fully below, it would conflict with rights granted growers under the cranberry laws. We will construe statutes, where it is reasonable, so as to avoid conflict with other statutes. State ex rel. McManman v. Thomas, 150 Wis. 190, 196, 136 N.W. 623 (1912). Consequently, we find the most reasonable construc tion of sec. 31.14(4) provides the DNR with regulatory power over dams generally, with the exception of cranberry dams.\\nThe provisions of secs. 31.14, Stats., seem designed to accommodate the regulation of large power dams. Section 31.14(2) speaks of proving financial responsibility for maintenance by establishing special assessment districts. The statute also allows non-municipal dam owners to prove financial responsibility by posting bond. Section 31.14(5) provides also that the DNR may require creation of a fund for major repairs or removal of the dam when necessary, but does not apply to dam owners who have the power of eminent domain.\\nThe legislative history of sec. 31.14, Stats., suggests that it is intended to regulate power dams, rather than cranberry dams. Section 31.14 was drafted by the Water Resources Committee of the Wisconsin Legislative Council and was enacted into law by 1961 Laws of Wisconsin Chapter 568. Both the minutes of the Committee and the 1959 Joint Resolution of the legislature that prompted the Committee are concerned primarily with the problem of abandonment of large dams by power companies. See Wisconsin Legislative Council Staff Report 61-2, available in Wisconsin Legislative Council and Council Committees, 1959-61 (Legislative Reference Bureau). No mention was made of cranberry dams despite preexisting cranberry dam regulation.\\nWe are aided in the construction of this statute by the history of application of this body of law. Administrative interpretation by the DNR is one avenue of inquiry. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978). Tenpas submits that the DNR has heretofore not required cranberry growers to submit to regulation under chapter 31 of the statutes. If the DNR believed they had power to regulate cranberry growers under chapter 31, they have presented no evidence of a prior administrative construction to that effect.\\nNine years ago in State v. Zawistowski, 95 Wis. 2d 250, 290 N.W.2d 303 (1980), this court considered whether DNR water-use permits under sec. 30.18, Stats., are required of cranberry growers. Section 30.18 requires persons who divert water from streams or lakes to obtain a DNR permit. Despite its sweeping and unambiguous language, the court found this permit requirement to conflict with the right to build and maintain dams and ditches granted by the cranberry laws: cranberry dams and ditches are useless if they may not be filled with water. Relying on the rule that the more specific statute prevails, Zawistowski held that cranberry dams are more specifically regulated by the cranberry laws than by the generalized DNR water use regulations of chapter 30.\\nAlthough Zawistowski found conflict on general grounds between the cranberry laws and the DNR water-use permit requirement, the DNR urges that the permit requirement in this case would not conflict with rights granted to growers under the cranberry laws. Assurances of financial responsibility, the DNR argues, do not interfere with cranberry growers right to \\\"build and maintain\\\" dams under the cranberry laws. After styling the permit in this case as a limited and modest requirement, the DNR asks that we affirm their permit power on the grounds that, it does not conflict with rights granted by the cranberry laws.\\nWe find a conflict. The power to grant or withhold a permit is the power to regulate. Section 31.14, Stats., requires dam owners to supply proof to the DNR that they are financially able to maintain dams as specified by the DNR. For non-municipal dam owners, like Tenpas, this reduces to filing a bond in an amount the DNR determines to be sufficient to pay for whatever maintenance it requires. The bond is not imposed as security for damages that might arise from a failure of a dam, but is a means of ensuring that the DNR order of maintenance will be accomplished. However, the power to control cranberry dam maintenance has already been granted to the owners of those dams in sec. 94.26, Stats. The DNR cannot also control the maintenance of those dams without diminishing the previously conferred rights of cranberry dam owners.\\nFurther conflict between sec. 31.14(4), Stats., and the cranberry laws becomes apparent from the integrated nature of chapter 31. Section 31.14 is internally integrated and is primarily linked with other parts of chapter 31. Section 31.14(4) operates by requiring compliance with secs, 31.14(2) or (3). These sections, in turn, regulate permits issued under secs. 31.06, 31.08 or 31.13, Stats., for the construction, maintenance or enlargement of dams. Section 31.185, Stats., is also closely related to sec. 31.14 and requires a permit for alteration or removal of a dam. The integrated nature of dam regulation under chapter 31 suggests the term \\\"dam\\\" used in subsection 31.14(4) be construed in pari materia with its use in other parts of the chapter, thus yielding a consistent whole. State v. ILHR Dept., 101 Wis. 2d 396, 403, 304 N.W.2d 758 (1981). The DNR urges that in this case we need not reach the question of the conflict between the cranberry laws and these other provisions of chapter 31. But we see no reason to assume under the basic rationale urged by the DNR that the related sections of chapter 31 will be applied differently. Chapter 31 imposes a panoply of dam regulations which would all apply as logically as sec. 31.14(4) to cranberry dams.\\nAny doubt that lingers about whether the sec. 31.14(4), Stats., dam permit requirement conflicts with rights granted under the cranberry laws can be satisfied by examining the permit issued to the plaintiffs in this case. The permit specifies how Tenpas' cranberry dams are to be operated and maintained, expressly ordering a number of repairs to be made as a condition of the permit. The permit also claims power under sec. 31.02, Stats. Counsel for the DNR at oral argument frankly admitted that they do not believe their regulatory power over cranberry growers stops with sec. 31.14(4). This evidence fortifies our conclusion based on the reasoning above that sec. 31.14(4) conflicts with the cranberry laws.\\nConsistent with our decision in Zawistowski, we are persuaded that where general DNR dam regulations collide with rights granted by the cranberry laws, the more specific provisions of the cranberry laws apply.\\nThe DNR has also argued that the state's paramount interest in protecting public safety supersedes any rights that cranberry growers were granted under the cranberry laws. They argue on the strength of Cranberry Creek Drainage District v. Elm Lake Cranberry Company, 170 Wis. 362, 174 N.W. 554 (1920) and Chippewa & Flambeau Imp. Co. v. Railroad Comm., 164 Wis. 105, 159 N.W. 739 (1916), that the cranberry laws were long ago superseded by administrative regulation of dams. We find no evidence to support this contention. Certainly this court's decision in Zawistowski stands for a contrary proposition. The fact that the legislature updated the accountability procedure of the cranberry laws under ch. 317, Laws of 1981, confirms the continuing vitality of the cranberry laws as statutes that are to be independently construed.\\nWe do not address the power to impose the strictures of chapters 30 and 31 on cranberry enterprises for it is clear that the legislature has not made that intent evident. Although public safety is a concern of the state, the DNR presents no authority suggesting that the legislature has delegated to the DNR the power to regulate safety hazards created by cranberry dams. In addition to liability arising under the cranberry laws themselves, cranberry dams are still subject to common law tort and property use restrictions. The public is not unprotected.\\nWe hold that the specific legislative treatment of cranberry growers under sec. 94.26, Stats., precludes application of the general financial responsibility requirements of secs. 710.11 and 31.14(4), Stats., to cranberry dams. Because we conclude that secs. 710.11 and 31.14 do not apply to cranberry dams, we reverse the decision of the court of appeals and reinstate the declaratory judgment of the trial court.\\nBy the Court. \\u2014 Decision reversed.\\nSection 710.11, Stats., provides:\\nTransfer of land where dam exists. A person may not accept transfer of the ownership of a specific piece of land on which a dam is physically located unless the person complies with s. 31.14(4).\\nFinding No. 6 of the permit issued to the Tenpases specifies repair of cracks in the concrete wingwalls and spillways of each dam; replacement of missing concrete in an emergency spillway; and removing woody vegetation from the dikes. Order No. 7 of the permit makes performance of these repairs a condition of acceptance.\\nSection 94.26, Stats., reads in foil:\\nCranberry culture; maintenance of dams, etc. Any person owning lands adapted to the culture of cranberries may build and maintain on any land owned by him such dams upon any watercourse or ditch as shall be necessary for the purpose of flowing such lands, and construct and keep open upon, across and through any lands such drains and ditches as shall be necessary for the purpose of bringing and flooding or draining and carrying off the water from such cranberry growing lands, or for the purpose of irrigation, fertilization and drainage of any other lands owned by such person; provided, that no such dams or ditches shall injure any other dams or ditches theretofore lawfully constructed and maintained for a like purpose by any other person.\\nSection 710.11, Stats., was introduced to the legislature at the request of the DNR by the Law Revision Committee. It was enacted by Chapter 246 of the Laws of 1981, effective April 27, 1981.\\nThe legislative note to sec. 710.11, Stats., reads in full:\\nThe creation of section 710.11 of the statutes should ensure that people working in the real estate profession, including brokers, attorneys and mortgage insurance companies, will be aware of the requirements of sections 31.14(4) and 31.185(1) and (2) of the statutes. This new awareness should enable the department of natural resources to maintain accurate records regarding dam ownership and improve the administration of its dam safety program.\\nSection 31.14, Stats. (1985-1986) provides in full:\\n31.14 Proof of ability to maintain dams required. (1) It is the policy of this section to preserve public rights in navigable waters, including those created by dams, and to provide a means of maintaining dams and the developments which have been made adjacent to the flowage of such dams.\\n(2) Except as provided in sub. (3), a permit shall not be granted under s. 31.06, 31.08 or 31.13:\\n(a)Unless the applicant furnishes to the department proof of ability to operate and maintain the dam in good condition, either by the creation of a special assessment district under ss. 31.38 and 66.60, or by any other means which in the department's judgment will give reasonable assurance that the dam will be maintained for a reasonable period of time not less than 10 years; or\\n(b)If a majority of the municipalities in which 51% or more of the dam or flowage is or will be located files with the department, prior to the granting of the permit, their objections to the granting of such permit in the form of resolutions duly adopted by the governing bodies of such municipalities.\\n(3) Subsection (2) does not apply if the applicant complies with each of the following requirements:\\n(a) Furnishes proof satisfactory to the department that he owns or has an enforceable option to purchase all the land which is or will be flowed by the impoundment, together with the shore line and an immediately adjacent strip of land at least 60 feet in width, but the department may in a particular case permit a narrower strip where the 60-foot minimum is impractical and may, in furtherance of the policy stated in sub. (1), require ownership of a wider strip.\\n(b) Files with the department a writing in such form as the department requires in which he agrees that following the initial filling of the proposed pond he will not convey the dam to another without first obtaining department approval. The department may require from an applicant who does not have the power of eminent domain a bond or other reasonable assurances that he will adhere to such agreement.\\n(c) Furnishes proof satisfactory to the department that he has dedicated or will dedicate a parcel of land for public access to the impounded waters.\\nts No person may assume ownership of a dam after October 21, 1961, or the ownership of that specific piece of land on which a dam is physically located after April 27, 1982, without first complying with sub. (2) or (3). The transfer of the ownership of a dam or the ownership of a specific piece of land on which a dam is physically located made without complying with sub. (2) or (3) is void unless a permit to abandon the dam was granted under s. 31.185 or unless the transfer occurred by operation of law. Every person who accepts ownership by operation of law is subject to this chapter.\\n(5) For the purpose of implementing the policy stated in sub. (1), the department may by rule require all or specified classes of persons operating a dam for profit to create a fund or reserve to be used for major repairs, reconstruction or removal of the dam when necessary. Such rules shall prescribe the manner in which such fund or reserve is to be created, maintained and expended. This subsection shall not apply to a person who has the power of eminent domain.\"}"

wis/8668479.json

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+"{\"id\": \"8668479\", \"name\": \"Laura S. HAMMER, Plaintiff-Appellant, v. Warren J. HAMMER, Defendant-Respondent\", \"name_abbreviation\": \"Hammer v. Hammer\", \"decision_date\": \"1987-11-19\", \"docket_number\": \"No. 86-2039\", \"first_page\": \"257\", \"last_page\": \"268\", \"citations\": \"142 Wis. 2d 257\", \"volume\": \"142\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T23:08:50.378142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Moser, P.J., Wedemeyer and Sullivan, JJ.\", \"parties\": \"Laura S. HAMMER, Plaintiff-Appellant, v. Warren J. HAMMER, Defendant-Respondent.\", \"head_matter\": \"Laura S. HAMMER, Plaintiff-Appellant, v. Warren J. HAMMER, Defendant-Respondent.\\nCourt of Appeals\\nNo. 86-2039.\\nSubmitted on briefs August 4, 1987.\\nDecided November 19, 1987.\\n(Also reported in 418 N.W.2d 23.)\\nFor the plaintiff-appellant the cause was submitted on the briefs of Kaftan, Kaftan, Van Egeren, Ostrow, Gilson, Geimer & Gammeltoft, S.C., with G. Jane Kaftan of counsel, of Green Bay.\\nFor the defendant-respondent the cause was submitted on the briefs of Schmaus Law Office, with William J. Chandek of counsel, of Menomonee Falls.\\nBefore Moser, P.J., Wedemeyer and Sullivan, JJ.\\nPetition to review denied.\\nSee Callaghan\\u2019s Wisconsin Digest, same topic and section number.\", \"word_count\": \"2942\", \"char_count\": \"17835\", \"text\": \"WEDEMEYER, J.\\nLaura S. Hammer appeals from the trial court's order of summary judgment which dismissed her complaint against her father, Warren J. Hammer. The dispositive issue of this case is whether the discovery rule of Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 335 N.W.2d 578 (1983) applies to cases of incestuous abuse. Because we conclude that the discovery rule applies to the facts of this case, and because there still exist genuine issues of material fact to be resolved, we reverse the trial court's determination that the claims were barred by sec. 893.16, Stats., and remand for trial.\\nLaura, in an amended complaint, filed three claims against her father for incestuous abuse, intentional infliction of emotional distress, and negligent infliction of emotional distress. Warren moved to dismiss Laura's claims pursuant to sec. 802.06(2), Stats., on the ground that the claims were barred by the statutes of limitations, contained in secs. 893.57 and 893.54(l).\\nAlong with her brief in opposition to the motion to dismiss, Laura filed an affidavit of her psychological counselor, Michael Filipiak, to support the allegations of her complaint. This affidavit was accepted and considered by the court. The parties stipulated in open court on the day the motion to dismiss was argued, that the amended complaint would be accepted, and that the trial court's decision on the motion to dismiss would apply to the amended complaint. The trial court decided that Laura's claims were barred by sec. 893.16, Stats.\\nLaura alleges in her amended complaint that she was sexually abused by Warren on an average of three times a week, beginning in 1969 when she was five years old and ending in August, 1978 when she was fifteen. The conduct included, but was not limited to, indecent touching and oral intercourse, and was forced upon her without her consent.\\nThe conduct occurred in secret and was accompanied by threats that harm would come to her if she ever told anyone about it. In an atmosphere of paternal dominion, Warren repeatedly told Laura that she had caused the acts he committed and that they were her fault. The acts and the circumstances in which they occurred caused Laura to develop various coping mechanisms and symptoms of psychological distress, including great shame, embarrassment, guilt, self-blame, denial, depression, and disassociation from her experiences.\\nAt the age of fifteen, Laura reported Warren's acts to her mother. Warren, along with his mother, denied such conduct and trivialized it. He convinced Laura that she was not injured by the conduct but that she was at fault for her problems and for the family's problems. Warren also influenced her brother and sister to blame her, and to blame the family's problems on her having revealed his actions.\\nLaura further alleged that during the course of the abuse, because of the psychological distress caused by the abuse and the coping mechanisms which resulted, she was unable to perceive or know the existence or nature of her psychological and emotional injuries. These manifestations continued to operate on her long after the incidents of sexual molestation had ended, preventing her from perceiving her psychological and emotional injuries and their connection to her father's earlier acts, and causing her to resist and reject any suggestions that she obtain psychological counseling or legal advice.\\nShe avers that in February, 1985, because of her emotional shock and distress at her father's attempt to obtain legal custody of her minor sister, she began to consider the relationship between his acts against her and her continuing psychological and emotional problems. Since that time, she has sought psychological counseling and legal advice and has begun to understand the past and present impact of his abuse.\\nThe affidavit of Michael Filipiak, Laura's psychological counselor, declared that he was experienced in treating victims and perpetrators of intrafamilial sexual assault and that he was presently treating Laura for psychological and emotional injuries which he believed were caused by her father's sexual and other abuse. He believed that Laura was traumatized by the abuse and isolation and was unable to reveal and explore the damage she had suffered. He concluded that Laura had not perceived the incestuous conduct as injurious because (1) it was of such a long duration and frequency that it had been perceived by her as natural behavior; (2) Warren had imposed isolation and secrecy on her; (3) the abuse had depersonalizing effects which had made her think of herself as an object to be used rather than as a person with rights; (4) she had been told by her father that the conduct was normal and his right, and (5) the abuse by an authority figure on whom she was dependent had made her distrustful of other authority figures who might have helped her.\\nHe further declared that, as a normal post-traumatic stress reaction, Laura had developed denial and suppression coping mechanisms. Because she had failed to understand or appreciate the abusive nature of her father's acts she had been unable to discover their psychological damage. The danger of her father subjecting her younger sister to the same type of abuse stimulated her awareness and delayed feelings about what had transpired years before.\\nFilipiak further opined that the minimization by Laura's family members of the abuse and its effects, and their blaming her for the breakup of the family had intensified the coping mechanisms of denial and suppression. He further stated that Laura's psychological manifestations were the usually recognized symptoms of post-traumatic stress disorder in victims of intrafamilial sexual abuse.\\nWhen reviewing the grant of a summary judgment motion, we are required to apply the standards set forth in sec. 802.08(2), just as the trial court applied those standards. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Because we conclude that the trial court incorrectly decided a legal issue and there are material facts in dispute, we reverse. See Germanotta v. National Indem. Co., 119 Wis. 2d 293, 297, 349 N.W.2d 733, 735 (Ct. App. 1984).\\nThe trial court declared that it was aware that the Wisconsin Supreme Court had adopted a discovery rule for all tort actions but stated that it was\\nunwilling to adopt a rule of delayed discovery that would operate to extend the statute of limitations for minors, sec. 893.16, for a period longer than that mandated by the legislature. The legislature is free to carve out an exception for cases of incestuous abuse involving minors in Chapter 893 of the Wisconsin Statutes. Although the most atrocious behavior has been alleged on the part of the defendant, the Court concludes that the plaintiff is barred by sec. 893.16(1) and accordingly dismisses plaintiffs complaint.\\nWe disagree with the trial court's decision not to apply the discovery rule to this case. We hold, as a matter of law, that a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury. See Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411, 388 N.W.2d 140, 146 (1986).\\nThe discovery rule, as enunciated in Hansen, was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action. In the interest of justice and fundamental fairness, our supreme court adopted a \\\"discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, which ever occurs first.\\\" Hansen, 113 Wis. 2d at 560, 335 N.W.2d at 583. In announcing this rule, our supreme court established its power to determine when claims accrue. In doing so, it declared that\\n[w]ith the exception of sec 893.55, Stats., for medical malpractice claims, the Wisconsin statutes do not speak to this issue. In the past this court has fixed the time for accrual for tort claims, and we retain the authority to do so now. Past deference to the legislature does not preclude our adoption of the discovery rule. Id. at 559-60, 335 N.W.2d at 582.\\nRecently, Borello further explained the meaning of the discovery rule by declaring, \\\"under Wisconsin law, a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product.\\\" Id. at 411, 388 N.W.2d at 146. In applying the discovery rule of Hansen to the circumstances in which Borello found herself, the supreme court further explained that even though Borello had symptoms and a subjective belief as to the cause of her problems, her cause of action did not accrue until she \\\"had information to a reasonable probability of the nature of her ailment and the factual information to a reasonable probability that the defendant's furnace was the cause of her injuries.\\\" Id. at 423-24, 388 N.W.2d at 151.\\nIn applying the Hansen discovery rule to the factual context of Borello, the court was quick to point out that tort claims may still accrue at the time of the negligent act or the injury. But not all tort claims will accrue at that time; some will not accrue until discovery occurs. '\\\"Discovery' in most cases is implicit in the circumstances immediately surrounding the original misconduct.\\\" Borello, 130 Wis. 2d at 404-05, n. 2, 388 N.W.2d at 143, n. 2.\\nThe facts on which the date of discovery was based in Borello are very similar to the facts as pleaded by Laura. Like Borello, who subjectively believed that the furnace was the source of her problems, even if Laura may have harbored some subjective doubts about the normalcy of Warren's actions, because of Warren's dominion and authority and her own guilt, depression and disassociation, she had no information to a reasonable probability of the nature of her injuries or the facts with respect to their cause. Like Borello, who was told by doctors that her injuries were not caused by the furnace, Laura was also misinformed and misled by the authority figures on whom she reasonably relied. Furthermore, Laura was intentionally misled as to the significance and cause of the abuse itself.\\nWarren claims that while Laura may not have fully understood the extent of the alleged harm during the time the incidents occurred, injury was suffered and discovered at or about the time the incidents occurred. He claims that the factual allegations of the complaint clearly reveal that the injury was discovered or should have been discovered at the time she was fifteen. He also argues that to allow application of the discovery rule would effectively eliminate any statute of limitations of any kind in similar types of cases. A defendant would be defenseless against fraudulent or stale claims.\\nWarren's arguments are unpersuasive. First, a cause of action does not necessarily accrue when the first manifestations of injury occur. The claimant has leeway to not start an action until she knows more about the injury and its probable cause. Borello, 130 Wis. 2d at 420, 388 N.W.2d at 149.\\nThe policy justification for applying the statute of limitations to protect defendants from '\\\"the threat of liability for deeds in the past'\\\" is unpersuasive in incestuous abuse cases. Incestuous Abuse at 631. Victims of incest have been harmed because of a \\\"most egregious violation of the parent/child relationship.\\\" Id. To protect the parent at the expense of the child works an \\\"intolerable perversion of justice.\\\" Id. Further, \\\"the injustice of barring meritorious claims before the claimant knows of the injury outweighs the threat of stale or fraudulent actions.\\\" Hansen, 113 Wis. 2d at 559, 335 N.W.2d at 582.\\nSince the discovery rule will not benefit claimants who negligently or purposely fail to file a timely claim, see id., the statute of limitations will not be \\\"effectively eliminated.\\\" Furthermore, statutes of limitations will still run; they will run from the date of discovery instead of from the date of injury. Warren is also protected by the requirement that Laura bears the burden of proving her claims. See id.\\nBecause of the rationale of the discovery rule as stated in Hansen, and because the reasons for its application in Borello are equally valid here, we accept its precedential value for the purposes of deciding this case. We conclude that the discovery rule is applicable to the presumed factual setting of Laura's three claims.\\nIn concluding that the discovery rule is applicable, however, we do not decide the factual question of when Laura discovered or should have discovered her injuries and their cause. Since the trial court rejected the applicability of the discovery rule, this question was not answered. Thus, because genuine issues of material fact remain open, including when Laura's cause of action accrued, we reverse and remand this matter for trial.\\nBy the Court. \\u2014 Order reversed and cause remanded.\\nThis issue has not been previously addressed in Wisconsin.\\nSection 893.57, Stats., provides \\\"[a]n action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within two (2) years after the cause of action accrues or be barred.\\\"\\nSection 893.54, Stats., provides \\\"[t]he following action shall be commenced within three (3) years or be barred: (1) an action to recover damages for injuries to the person.\\\"\\nIf a motion to dismiss is filed under sec. 802.06, Stats., and matters outside the pleadings are presented and accepted by the court for its consideration, the motion is considered a motion for summary judgment. See sec. 802.06(3), Stats. We have before us in this case, in addition to the briefs, only the plaintiffs original and amended complaint, a supporting affidavit, and defendant's motion for dismissal.\\nSection 893.16(1), Stats, provides \\\"If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or insane, or imprisoned on a criminal charge the action may be commenced within 2 years after the disability ceases .\\\" Since Laura was born on April 16,1964, the trial court concluded that she had until April 16, 1984, to file her claims. Laura's original complaint was filed on February 28, 1986.\\nThe implications of the various statutes of limitation vis a vis the discovery rule are as follows: The statute of limitations for an intentional tort such as assault, battery or intentional infliction of emotional distress is two years, sec. 893.57, Stats. When claims of injury arise from negligence, the period of limitations is three years, sec. 893.54, Stats. When individuals under the age of eighteen years when the claim accrues are involved, the action may be commenced within two years after the age disability ceases, sec. 893.16(1), Stats. Under the trial court's ruling, Laura had until April 16,1984 to file her claim. Laura, however, submits that under the discovery rule the claim didn't accrue until February, 1985. Thus, by filing her claims in February, 1986, she is well within both the two-year and the three-year statutes of limitations. Laura also claims that sec. 893.16 would not apply because it requires the claim to accrue before the age of eighteen years and she was twenty-one when she claims she discovered her injuries and their cause.\\nThis rule has also been referred to as a delayed discovery rule. \\\"The typical delayed discovery rule provides that the cause of action accrues when the plaintiff discovers, or through the use of reasonable diligence should have discovered, both that s/he is injured and that the injury was caused by the defendant's misconduct.\\\" Note, Statutes of Limitations in Civil Incest Suits: Preserving the Victim's Remedy, 7 Harv. Women's L. J. 189, 213 (1984).\\nAs the standard adopted by the court is objective, Borello, 130 Wis. 2d at 404, 388 N.W.2d at 142, Laura's conduct is to be measured against that of a reasonable person in her circumstances.\\n\\\" [E]ven though a daughter may know that she has been injured, until such time as she is able to shift the blame for the incestuous abuse of her father, it will be impossible for her to realize that his behavior caused her psychological disorders. As with discovery of injury, discovery of cause can take years.\\\" Comment, Tort Remedies for Incestuous Abuse, 13 Golden Gate U. L. Rev. 609, 630 (1983).\\nWe note that the court in Borello looked at undisputed facts to determine, as a matter of law, when the cause of action accrued. Borello, 130 Wis. 2d at 404, 388 N.W.2d at 143. We do not conclude in our case that the facts are undisputed; it is only assumed for the purposes of reviewing the summary judgment determination that Laura would be able to establish all of the allegations in the complaint as fact.\"}"

wis/8668805.json

@@ -0,0 +1 @@
+"{\"id\": \"8668805\", \"name\": \"Biesiadny, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Henningfeld and others, Defendants and Respondents: Milwaukee Mutual Insurance Company, Defendant and Appellant\", \"name_abbreviation\": \"Biesiadny v. Henningfeld\", \"decision_date\": \"1974-10-01\", \"docket_number\": \"No. 199\", \"first_page\": \"88\", \"last_page\": \"91\", \"citations\": \"65 Wis. 2d 88\", \"volume\": \"65\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:17:23.920861+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Biesiadny, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Henningfeld and others, Defendants and Respondents: Milwaukee Mutual Insurance Company, Defendant and Appellant.\", \"head_matter\": \"Biesiadny, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Henningfeld and others, Defendants and Respondents: Milwaukee Mutual Insurance Company, Defendant and Appellant.\\nNo. 199.\\nSubmitted under sec. (Rule) 251.54 September 10, 1974.\\nDecided October 1, 1974.\\n(Also reported in 221 N. W. 2d 690.)\\nFor the appellant the cause was submitted on the briefs of Cannon, McLaughlin, Herbon & Staudenmaier, attorneys, and L. William Staudenmaier of counsel, all of Milwaukee.\\nFor the plaintiffs-respondents the cause was submitted on the brief of Habush, Gillick, Habush, Davis & Murphy, attorneys, and Howard A. Davis of counsel, all of Milwaukee.\\nFor the defendant-respondent Robert E. Henningfeld the cause was submitted on the brief of Kluwin, Dunphy, Hankin & McNulty, all of Milwaukee.\\nMotion for rehearing denied, with costs, on November 26, 1974.\", \"word_count\": \"721\", \"char_count\": \"4339\", \"text\": \"Robert W. Hansen, J.\\nOnly one question is asked on this appeal: Was the insurer of the father entitled to summary judgment as to the claim against it based on the driving of the sod truck by the son? However, to answer this question, several questions have to be asked and answered, with the last answer to the last question deciding the issue raised.\\nQ. Was the sod truck a four-wheel motor vehicle? A. That depends on the testimony. The policy defines a \\\"nonowned automobile\\\" as a \\\". . . four wheel land motor vehicle or trailer not owned by or furnished or available for the regular use of either the named insured or any resident of the same household . . . The in surer submitted a photograph of the sod truck (upside down after the accident) indicating side-by-side tires on each of. the rear wheels. The trial court found an issue of fact presented as to whether the vehicle had four wheels within the meaning of the policy, four wheels with six tires, or whether it was outside the coverage as a six-wheel vehicle. The answer to this question depends upon how a wheel is defined and the design of this sod truck. More evidence than this record provides is required to answer the question involved.\\nQ. Was the son an \\\"additional insured\\\" under the terms of the policy? A. No. The applicable clause of the policy reads: \\\"The following are insureds: . . . (b) With respect to a non-owned automobile, . (2) a relative, but only with respect to a private passenger automobile or trailer, provided his actual use thereof is with the permission of the owner and is within the scope of such permission.\\\" The son is not such additional insured under that clause because the vehicle involved was not a private passenger automobile.\\nQ. Was the father's insurer liable under the clause relating to nonowned automobiles used in any business or occupation of the insured? That policy provision, an exclusion clause, provides: \\\"This policy does not apply: . . . (h) to a non-owned automobile while used in any business or occupation of the insured except a private passenger automobile operated or occupied by the named insured . . . .\\\" If the liability of the father arose from the use of a nonowned automobile, except a private passenger automobile operated or occupied by him, this exclusion clause would apply.\\nQ. Is the insurer of the father entitled to summary judgment on this record, dismissing the complaint of the plaintiff? A. No. Here the father is liable, or the claim of liability against him is based on the sponsorship statute (sec. 343.15 (2), Stats.) because he signed the application for his son's driver's license. Under its policy, the father's insurer agreed to pay on behalf of the father or any additional insured damages \\\". . . arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, . . subject to the exclusion clause. We agree with the trial court that, on this record, it must be held that the truck was not being used in any business or occupation of any insured, because the son in whose occupation it was being used was not an insured, and the truck was not being used in the business or occupation of the father. We agree with the trial court that so holding requires denial of the motion for summary judgment for the reason that, if the father is liable as a sponsor, the company under the policy is liable as his insurer. We affirm the trial court in all respects.\\nBy the Court. \\u2014 Order affirmed.\"}"

wis/8668961.json

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+"{\"id\": \"8668961\", \"name\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Roger G. SCHNITZLER, Attorney at Law\", \"name_abbreviation\": \"In re Disciplinary Proceedings Against Schnitzler\", \"decision_date\": \"1987-09-23\", \"docket_number\": \"No. 86-1371-D\", \"first_page\": \"574\", \"last_page\": \"578\", \"citations\": \"140 Wis. 2d 574\", \"volume\": \"140\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Roger G. SCHNITZLER, Attorney at Law.\", \"head_matter\": \"IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Roger G. SCHNITZLER, Attorney at Law.\\nSupreme Court\\nNo. 86-1371-D.\\nFiled September 23, 1987.\\n(Also reported in 412 N.W.2d 124.)\", \"word_count\": \"1116\", \"char_count\": \"7001\", \"text\": \"PER CURIAM.\\nAttorney disciplinary proceeding; attorney's license suspended.\\nThe referee recommended that the license of Roger G. Schnitzler to practice law in Wisconsin be suspended for 30 days as discipline for his failure to timely file a state income tax return for calendar year 1980. The referee's recommendation was based on the fact that prior to the commencement of this proceeding Attorney Schnitzler was twice privately reprimanded and once publicly reprimanded for unprofessional conduct. While the court agrees that a license suspension is appropriate discipline under the circumstances, 30 days is not sufficient time for Attorney Schnitzler to effectively give notice to his clients and the courts in which he has pending matters of the fact of his suspension and otherwise comply with the requirements we impose on an attorney whose license is suspended. We determine that the minimum period for which an attorney's license will be suspended as discipline for misconduct is 60 days. Recognizing that the referee's intention in this proceeding was to recommend the minimum period of suspension, we suspend Attorney Schnitzler's license for 60 days.\\nAttorney Schnitzler was admitted to practice law in Wisconsin in 1966 and practices in Madison. In 1980 he was privately reprimanded by the Board of Attorneys Professional Responsibility (Board) for his failure to timely respond to Board inquiries into a client grievance; in 1982 the Board privately reprimanded him for again failing to timely respond to Board inquiries concerning a client grievance and for failing to perform services in a client's divorce and bankruptcy matters for which he had been retained; in 1985 he consented to a public reprimand from the Board for failing to provide a client with an accounting and with client records in a bankruptcy matter, despite the client's repeated requests, for failing to execute a consent to substitution of counsel at his client's request and for failing to advise his client of a notice of deposition of the client. The referee in this proceeding is Attorney James E. Doyle, Jr.\\nIn January, 1986 Attorney Schnitzler was convicted in Dane county circuit court of one count of willful failure to timely file a state income tax return for calendar 1980. The court withheld sentence and placed Attorney Schnitzler on two years' probation and required him to pay a fine of $600 and timely file future state income tax returns.\\nThe referee concluded that this conduct violated a standard established by court decision and thereby violated SCR 21.05(5). The referee noted that discipline previously imposed on Attorney Schnitzler was for conduct related to his failure to file income tax returns, that is, the misconduct involved his failure to meet legal obligations in a timely manner. The referee concluded that a period of license suspension is necessary to protect the public and to serve as a deterrent to like conduct by other attorneys. It was noted that Attorney Schnitzler's failure to timely file his income tax return occurred prior to the imposition of the public reprimand; had it been after that reprimand, the referee said, he would have considered recommending more severe discipline.\\nAfter considering the referee's recommendation, the court directed the parties to file briefs on the question of the appropriateness of the recommended discipline, stating that we considered a period of 30 days insufficient time to permit the attorney to give notice of the license suspension to courts and clients and that we had determined that the minimum period for which an attorney's license will b\\u00e9 suspended as discipline for misconduct is 60 days. Attorney Schnitz-ler did not file a brief or otherwise respond to the court's order; the Board filed a brief in which it argued that Attorney Schnitzler's misconduct warrants the imposition of a 90-day license suspension.\\nIn determining what should constitute the minimum period of a disciplinary license suspension we considered the requirements we impose in connection with a license suspension. An attorney whose license is suspended must notify all clients being represented in pending matters of the suspension and the attorney's consequent inability to act in those matters, advise clients to seek legal advice elsewhere, notify courts or administrative agencies and attorneys for opposing parties in pending matters of the suspension and arrange for the temporary closing of the attorney's practice. SCR 22.26. That rule further provides for publication of a notice of the suspension in the Wisconsin Bar Bulletin and in a newspaper in each county in which the suspended attorney maintains a professional office and notification of all judges in the state of the suspension order.\\nA 30-day period is not sufficient time for these required notices and advice to be effective. Moreover, a 30-day suspension does not adequately serve the purpose of lawyer discipline. The American Bar Association Standards for Imposing Lawyer Sanctions, adopted in February, 1986, provide that a license suspension should be for a minimum period of 6 months. A commentary to those Standards states, in part:\\n\\\"... [S]hort-term suspensions with automatic reinstatement are not an effective means of protecting the public. . When shorter suspensions are imposed, lawyers can merely delay performing the requested services. If the lawyer eventually completes the work for the client and receives a fee, the suspension has only served to inconvenience the client.\\\"\\nWe conclude that a minimum 60-day period of suspension serves the needs of the public and the legal system when a lawyer's license is suspended for disciplinary reasons. Of course, the length of the license suspension imposed in each case will depend on the seriousness of the lawyer's misconduct and whatever mitigating or aggravating factors are present.\\nWe adopt the referee's findings of fact and conclusions of law in this matter, and we modify the recommendation for discipline for the reasons set forth above.\\nIT IS ORDERED that the license of Roger G. Schnitzler to practice law in Wisconsin is suspended for a period of 60 days, commencing November 1, 1987.\\nIT IS FURTHER ORDERED that within 60 days of the date of this order Roger G. Schnitzler pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding, provided that if the costs are not paid within the time specified and absent a showing of his inability to pay the costs within that time, the license of Roger G. Schnitzler to practice law in Wisconsin shall remain suspended until further order of the court.\\nIT IS FURTHER ORDERED that Roger G. Schnitzler comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.\"}"

wis/8669623.json

@@ -0,0 +1 @@
+"{\"id\": \"8669623\", \"name\": \"Miller, Plaintiff in error, v. State, Defendant in error\", \"name_abbreviation\": \"Miller v. State\", \"decision_date\": \"1974-03-21\", \"docket_number\": \"No. State 191\", \"first_page\": \"802\", \"last_page\": \"802\", \"citations\": \"67 Wis. 2d 804\", \"volume\": \"67\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:32:04.094656+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller, Plaintiff in error, v. State, Defendant in error.\", \"head_matter\": \"No. State 191.\\nMiller, Plaintiff in error, v. State, Defendant in error.\\n(Also reported in 227 N. W. 2d 733.)\\nFor the plaintiff in error the cause was submitted on the brief of Howwrd B. Eisenberg, state public defender; and for the defendant in error the cause was submitted on the brief of Bronson C. La Follette, attorney general, and James H. Bailey, assistant attorney general.\", \"word_count\": \"68\", \"char_count\": \"402\", \"text\": \"Judgment affirmed.\"}"

wis/8669747.json

@@ -0,0 +1 @@
+"{\"id\": \"8669747\", \"name\": \"Mortgage Associates, Inc., Respondent, v. Siverhus and wife, Appellants: Capitol Lumber & Supply, Inc., and others, Third-Party Defendants\", \"name_abbreviation\": \"Mortgage Associates, Inc. v. Siverhus\", \"decision_date\": \"1974-06-04\", \"docket_number\": \"No. 152\", \"first_page\": \"650\", \"last_page\": \"663\", \"citations\": \"63 Wis. 2d 650\", \"volume\": \"63\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T19:15:39.833055+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mortgage Associates, Inc., Respondent, v. Siverhus and wife, Appellants: Capitol Lumber & Supply, Inc., and others, Third-Party Defendants.\", \"head_matter\": \"Mortgage Associates, Inc., Respondent, v. Siverhus and wife, Appellants: Capitol Lumber & Supply, Inc., and others, Third-Party Defendants.\\nNo. 152.\\nArgued April 1, 1974.\\nDecided June 4, 1974.\\n(Also reported in 218 N. W. 2d 266.)\\nFor the appellants there was a brief by Grutzner, Jaeckle & Byron, S. C., attorneys, and Edward E. Grutz-ner of counsel, all of Beloit, and oral argument by Edward E. Grutzner.\\nFor the respondent there was a brief by Arthur M. Moglowsky and Bass, Goldstein & Moglowsky, S. C., all of Milwaukee, and oral argument by Arthur M. Moglow-sky.\", \"word_count\": \"2870\", \"char_count\": \"16969\", \"text\": \"Beilf\\u00fcSS, J.\\nThe two primary issues on appeal are:\\n(1) Was the promissory note a forbearance calling for usurious interest in violation of the usury statute or was it a time-price differential transaction?\\n(2) Was the assignee of the note a holder in due course?\\n\\\"Usury\\\" defined in the most simple terms is interest upon a loan or forbearance in excess of that permitted by law. Clearly this transaction was not a loan. If the difference between the cash price and time payment price was interest it was a forbearance and because it amounted to about 16 percent per annum it was in violation of our usury statute set forth in the footnote.\\nA more detailed definition of usury that this court has adopted appears in 55 Am. Jur., Usury, p. 331, sec. 12:\\n\\\"The definition of usury imports the existence of certain essential elements generally enumerated as (1) a loan or forbearance, either express or implied, of money, or of something circulating as such; (2) an understanding between the parties that the principal shall be repayable absolutely; (3) the exaction of a greater profit than is allowed by law; and (4) an intention to violate the law. The presence of these elements infallibly indicates usury irrespective of the form in which the parties put the transaction; on the other hand, the absence of any one of them conclusively refutes the claim of usurious practice. In order that a transaction be considered usurious, these elements must exist at the inception of the contract, since a contract which in its inception is unaffected by usury can never be invalidated by any subsequent usurious transaction. It is the agreement to exact and pay usurious interest, and not the performance of the agreement, which renders it usurious. The test to be applied in any given case is whether the contract, if performed according to its terms, would result in producing to the lender a rate of interest greater than is allowed by law, and whether such result was intended.\\\"\\nHowever, this court and the federal courts have long recognized that a true time-price differential is not usury.\\nIn Hogg v. Ruffner, supra, the United States Supreme Court stated at pages 118, 119:\\n\\\"But it is manifest that if A propose to sell to B a tract of land for $10,000 in cash, or for $20,000 payable in ten annual instalments, and if B prefers to pay the larger sum to gain time, the contract cannot be called usurious. _ A vendor may prefer $100 in hand to double the sum in expectancy, and a purchaser may prefer the greater price with the longer credit; and one who will not distinguish between things that differ, may say, with apparent truth, that B pays a hundred per cent, for forbearance, and may assert that such a contract is usurious; but whatever truth there may be in the premises, the conclusion is manifestly erroneous. Such a contract has none of the characteristics of usury; it is not for the loan of money, or forbearance of a debt.\\\"\\nAs between Capitol and the Siverhuses, the trial court found the transaction was a time-price differential contract and not usury. We agree. Abel Siverhus was at the time and had been in the roofing and siding business himself for a period of eighteen years as a workman or an estimator. He knew the quality of materials and how they were to be applied. Both Mr. and Mrs. Siverhus knew that the cash price for the entire job was $2,660 and were satisfied that the amount was fair; they also acknowledge that they knew if they did not pay cash the price would be $3,703, consisting of sixty monthly payments of $61.72. There are no interest nor ambiguous charges shown on either the contract or the note. If Siverhus had elected to pay cash within sixty days his total payment would have been as quoted, $2,660; when he neglected to do so or elected not to do so it was clear his obligation was $3,703.\\nThere was a disclosure of both prices, they were not ambiguous, they were not represented as a loan, no interest was set forth nor dependent on the balance due, and at the time there was an opportunity to choose between a cash and time sale price. As such, we believe the trial court correctly concluded the transaction was a time-price differential sale as between the Siverhuses and Capitol.\\nSeveral cases in other jurisdictions have held that if the sale is a three-party transaction that involves a finance company or lending institution as well as the vendor and vendee at the time of the sale, the financing charge will be regarded as interest on a loan.\\nThe evidence here reveals Mortgage Associates, Inc., is a large lending institution doing business in several states; that about 10 percent of its business involves the purchase of notes and mortgages from housing improvement contractors; that it did business with about 500 such contractors and that it had purchased or discounted only 37 notes from Capitol and ceased entirely after it received six complaints from purchasers about the quality of Capitol's work.\\nMortgage Associates, Inc., was, however, aware of the general method of doing business by Capitol; knew some of its officers and employees, checked Capitol's credit rating, and furnished Capitol with note, mortgage and credit investigation forms and with rate books.\\nIn this instance Capitol did not use the Mortgage Associates' forms and did not give Mortgage Associates, Inc., a copy of the underlying contract. There is nothing on the face of the note or mortgage to indicate any irregularity or ambiguity. The Siverhuses did not respond to Mortgage Associates' inquiry as to the nature of the contract nor the performance by Capitol. Under these facts we cannot conclude that this was in reality a three-party transaction between Capitol, the Siverhuses and Mortgage Associates, Inc., so as to make it a loan rather than a time-price differential sale.\\nThe trial court's conclusion that this was a time-price differential transaction must be upheld.\\nWas Mortgage Associates, Inc., a holder in due course?\\nThe jury found that employees of Capitol made false representations in connection with the signing of the note and mortgage with intent to deceive and induce the defendants to sign them. It further found Abel and Patricia Siverhus believed such representations to be true and justifiably relied upon them to their financial damage. These findings are in no way challenged on appeal.\\nThe appellants do challenge the jury's findings that Mortgage Associates, Inc., acquired the promissory note for value in good faith and without notice of the defective and incomplete work by Capitol or in violation of the rules of the Wisconsin department of agriculture.\\nThe appellants further contend that as a matter of law, because of the fraud by Capitol in procuring the note and the close relationship between Mortgage Associates, Inc., and Capitol, Mortgage Associates should not be classifi\\u00e9d as a holder in due course.\\nThe first contention of the appellants is that the note was not negotiable because it was not for a sum certain; that is, it did not state the rate of interest and because if prepayment were to be made the amount due could be computed by reference to the note itself. And further, it was in the wrong amount.\\nSec. 403.104, Stats., provides:\\n\\\"Form of negotiable instruments: 'draft'; 'check'; 'certificate of deposit'; 'note'. (1) Any writing to be a negotiable instrument within this chapter must:\\n\\\"(a) Be signed by the maker or drawer; and\\n\\\"(b) Contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this chapter; and\\n\\\"(c) Be payable on demand or at a definite time; and\\n\\\" (d) Be payable to order or to bearer.\\\"\\nWe believe the note meets all the requirements of the statute so as to be a negotiable instrument. Both Abel and Patricia Siverhus signed it and acknowledged their signatures. It contains an unconditional promise to pay $3,703 in 60 installments of $61.72 per month beginning May 1, 1969. It is payable to Capitol Lumber & Supply, Inc.\\nThe appellants argue the note is not for a sum certain as defined in sec. 403.106, Stats., because Mortgage Associates, Inc., made a rebate for early payment and such fact was not on the face of the note.\\nMortgage Associates, Inc., is licensed by the State Banking Commission under secs. 138.07 (collateral loan law) and 138.09 (precomputed loan law), Stats., and is required by a rule of the State Banking Commission to allow refunds in case of a prepayment. Such was done in this case and the balance after refund was determined to be $3,342.01. The fact that Mortgage Associates, Inc., was required to make a refund on the note subsequently purchased cannot affect the negotiability of the note made by the Siverhuses and given to Capitol. The note provides for an amount of $3,703, payable in sixty monthly payments of $61.72. Sixty times $61.72 is $3,703.20.\\nSec. 403.302, Stats., defines a \\\"holder in due course,\\\" as follows:\\n\\\"Holder in due course. (1) A holder in due course is a holder who takes the instrument:\\n\\\" (a) For value; and\\n\\\" (b) In good faith; and\\n\\\"(c) Without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.\\\"\\nThe jury, by its answer to the question submitted to it, found that Mortgage Associates, Inc., qualified as a holder in due course under these requirements.\\nWe believe there is ample credible evidence in the record to support these findings.\\nMortgage Associates, Inc., paid Capitol $2,500 for the note on February 27, 1969, the day of the assignment.\\nThere is no showing of lack of good faith or bad faith nor was there any notice that the note was overdue or any defense against it. There was nothing on the face of the instrument to show any infirmity. Before Mortgage Associates, Inc., purchased the note it examined the completion certificate signed by the Siverhuses wherein Abel Siverhus acknowledged the work was completed in a satisfactory manner. Mortgage Associates attempted to contact the Siverhuses by phone but was not able to do so. It also notified the Siverhuses of the assignment and requested information concerning the transaction from the Siverhuses which they neglected to furnish.\\nThe appellants also argue that because Mortgage Associates, Inc., knew that there was an underlying agreement, the negotiability of the note was destroyed. This argument is fully answered by statute and its commentary:\\n\\\"403.119 Other writings affecting instrument. (1) As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction, except that a holder in due course is not affected by any limitation of his rights arising out of the separate written agreement if he had no notice of the limitation when he took the instrument.\\n\\\"(2) A separate agreement does not affect the negotiability of an instrument.\\\"\\nThe official UCC Comment to sec. 403.119 (40B, West's W. S. A. 78) states:\\n\\\"4. Under this Article a purchaser of the instrument may become a holder in due course although he takes it with knowledge that it was accompanied by a separate agreement, if he has no notice of any defense or claim arising from the terms of the agreement. If any limitation in the separate writing in itself amounts to a defense or claim, as in the case of an agreement that the note, is a sham and cannot be enforced, a purchaser with notice of it cannot be a holder in due course. . . .\\\"\\nSec. 403.305, Stats., provides:\\n\\\"Rights of a holder in due course. To the extent that a holder is a holder in due course he takes the instrument free from: . . .\\n\\\" (2) All defenses of any party to the instrument with whom the holder has not dealt except: . . .\\n\\\" (c) Such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.\\\"\\nThe appellants argue that they did not know they signed the note and mortgage. However, in their testimony they acknowledge their signatures appear upon the note and mortgage and that they could have read the documents if they had wanted to but simply relied upon the agents of Capitol. Further, they did not even respond to the written notices of Mortgage Associates, Inc., within the time they could have paid their entire obligation for $2,500. This is not the excusable ignorance that will defeat the rights of a holder in due course.\\n1 Wis. Adm. Code, sec. AG 110.01 (6) (e) (Register No. 177, Sept. 1970), as a part of the section dealing with prohibited trade practices by sellers of home improvements provided that it was a violation:\\n\\\"To ask or require the customer to sign a completion slip, promissory note, or other negotiable instrument, either for financing or collection purposes or otherwise, before the installation or job is completed in accordance with the terms of the contract.\\\"\\nThis section as then written does not affect the negotiability of a presigned note but penalizes a seller for an unfair trade practice. Here there is no evidence that Mortgage Associates, Ihc., knew the completion certificate was not accurate. And again the Siverhuses did not respond to the specific inquiries by Mortgage Associates which would have timely revealed the true situation.\\nThe appellants raise other issues as to the negotiability of the mortgage and Mortgage Associates' claimed right to recovery under quantum meruit. Because we have determined the transaction was based upoh a valid time differential, that Mortgage Associates was a holder in due course and a judgment was rendered on that cause of action, a discussion of quantum meruit is not necessary. The complaint sought only a judgment 'on the note \\u2014foreclosure of the mortgage was not demanded. The judgment rendered is only a money judgment based upon the li\\u00f3te and for this reason any discussion of the negotiability of the mortgage is immaterial.\\nBy the Court. \\u2014 Judgment affirmed.\\n\\\"138.05 Maximum rate; prepayment, disclosure; corporations. (1) Except as authorized by other statutes, no person shall, directly or indirectly, contract for, take or receive in money, goods or things in action, or in any other way, any greater sum or any greater value, for the loan or forbearance of money, goods or things in action, than:\\n\\\"(a) At the rate of $12 upon $100 for one year computed upon the declining principal balance of the loan or forbearance;\\n\\\"(b) With respect to loans or forbearances repayable in substantially equal weekly or monthly instalments and the face amounts of which include predetermined interest charges, at the rate of $6 upon $100 for one year computed upon that portion of the original principal amount of any such loan or forbearance, not including interest charges, for the time of such loan or forbearance, disregarding part payments and the dates thereof.\\\"\\nZang v. Schumann (1952), 262 Wis. 570, 579, 55 N. W. 2d 864; State v. J. C. Penney Co. (1970), 48 Wis. 2d 125, 132, 179 N. W. 2d 641.\\nOtto v. Durege (1861), 14 Wis. 621 (*571); State v. J. C. Penney Co., supra.\\nHogg v. Ruffner (1861), 66 U. S. (1 Black), 115, 17 L. Ed. 38.\\nSee 54 Op. Atty. Gen. (1965), 235, 244, for the citations and discussion of these cases.\\nMuscoda State Bank v. Kolar (1925), 187 Wis. 39, 203 N. W. 915.\\nIt is noteworthy to repeat a statement in the brief of the appellants reflecting new consumer regulations to prevent these situations from arising:\\n\\\"Since this case arose, the Wisconsin Department of Agriculture has promulgated its rule: Building and Home Improvement Trade Practices ag 110.03 effective October 1, 1970, Which provided basically that under the facts of this case Mortgage Associates would have taken subject to the defenses of Siverhus, arising under the contract. Truth in Lending (Act of May 29, 1968 Consumer Credit Protection Act, Title I Truth in Lending Act and Regulation Z (12 CFR 226) effective July 1, 1969), would have given Siverhus a right to rescind the transaction. The Wisconsin Consumer Act, Title XL, Wis. Stats., effective March 1, 1973, would have given Siverhus the right to assert his defenses for one year against Mortgage Associates. These three pieces of legislation were enacted to give the consumer some effective legal weapons to enforce their rights. . . .\\\"\"}"

wis/8669897.json

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+"{\"id\": \"8669897\", \"name\": \"State, Respondent, v. Haugen, Appellant\", \"name_abbreviation\": \"State v. Haugen\", \"decision_date\": \"1972-01-04\", \"docket_number\": \"No. State 4\", \"first_page\": \"339\", \"last_page\": \"345\", \"citations\": \"53 Wis. 2d 339\", \"volume\": \"53\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:15:43.249211+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State, Respondent, v. Haugen, Appellant.\", \"head_matter\": \"State, Respondent, v. Haugen, Appellant.\\nNo. State 4.\\nArgued November 30, 1971.\\nDecided January 4, 1972.\\n(Also reported in 193 N. W. 2d 50.)\\nFor the appellant there was a brief by Robert M. Sig-mcm and Sigman, Sigman & Skiff, all of Appleton, and oral argument by Robert M. Sigmem.\\nFor the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and William A. Platz, assistant attorney general.\", \"word_count\": \"1692\", \"char_count\": \"9973\", \"text\": \"Robert W. Hansen, J.\\nTwo young men, Roger Hau-gen and John Ball, traveled from Milwaukee to Shiocton, and it is the variance in their testimony as to what they did together in Shiocton that creates the issue of fact in this case. Both agreed in their testimony that they had been drinking together in Milwaukee and decided to hitchhike to Amherst. They got as far as Shiocton where they spent the evening of May 10, 1970, visiting and drinking in taverns. During that same evening a restaurant-sporting goods store was broken into and burglarized. (Seven pistols and about $10 in coins were stolen.) Early in the morning of May 11, 1970, John Ball was found to have some of the stolen property in his possession, admitted burglarizing the store but stated he would not implicate Roger Haugen and would not testify against him. Later that morning, Roger Haugen was arrested while talking with a local resident and charged with burglary. He denied participation in the burglary.\\nThe testimony of John Ball was that the two of them, Haugen and Ball, had broken into the restaurant-sporting goods store and stolen the pistols and coins. He testified that they cached the stolen pistols and coins near some farm machinery. (Ball had two pistols and some of the coins on his person when arrested.) Reasonable inferences may he drawn by a trier of fact from physical facts and surrounding circumstances. Such support or corroboration of the believability or credibility of Ball's account of what happened can derive from the fact of two friends or companions drinking together in one city, deciding to hitchhike together to a distant community, stopping en route and continuing their drinking and tavern visiting in the city in which the burglary occurred. It is not impossible that one of the two would interrupt the joint nature of the traveling and socializing to slip off and burglarize a store all by himself, but the comparative reasonableness of such alternative inference was for the trier of fact to determine.\\nThe testimony of Roger Haugen was that he did not in any way participate in the burglarizing of the store. In support of his testimony, and his right to have it believed, defendant pointed out that he had no \\\"loot\\\" on him when arrested. He pointed to his on-the-spot denial of involvement when placed under arrest. He noted that he was arrested in broad daylight while conversing with a local resident, claimed that staying around the town after the crime was committed was behavior inconsistent with participation in it. That is an inference that can be drawn, but, obviously, not the only possible inference. The same is true of the emphasis placed upon his going around the town shouting for his companion, Ball. Unless both could leave together, there are some reasons for neither electing to leave alone. It is not an unreasonable inference that staying around could be calculated to disarm suspicion or, at least, to be the only way of determining what had happened to one's companion. Additionally, defendant stressed that the clothing he wore, taken from him hours after the commission of the crime and after he had been wandering about in the rain, was sent by the police to the state crime laboratory for microscopic examination. There was new wax on the store floor, and Ball had testified that Haugen broke the store window to enter by hitting it with a sweater-wrapped arm. The claim is that the crime laboratory examination must have revealed an absence of wax on the shoes and glass particles in the sweater. However, there is no proof in this record that the state laboratory ever made a test, nor as to the results of any test. The gap could have been bridged by defendant's trial counsel subpoenaing the state laboratory director to determine if a test was made, and what it proved. The record gives no basis for finding either that a test was made or that the results were favorable to the defendant.\\nGreatest reliance is placed upon attacking the believability of John Ball's testimony. One basis of attack is upon his being intoxicated; however, he testified: \\\"I was pretty drunk; but, I know what happened.\\\" The explicitness of his recollection of exactly how the burglary was committed certainly makes degree of intoxication a matter of credibility and an issue of fact for the jury. The sharpest assault upon Ball's testimony relates to his initial confession in which, according to the police officer, he refused to implicate Haugen and stated that he would not testify against him. (At the trial, Ball testified he had implicated Haugen \\\"in a roundabout way\\\" in his initial statement to police.) It is not disputed that it was two or three weeks after the commission of the crime that Ball did fully implicate Haugen in the commission of the burglary. He sought to borrow $200 from Haugen to assist him (Ball) in retaining counsel for his defense. As Haugen phrased the circumstances of their discussion of such loan, \\\". . . Well he told me that if I didn't have two hundred dollars to borrow him, so he could get a lawyer, he would have to implicate me.\\\" The tardiness of memory, or delay in naming Haugen as a partner in the crime, does go to the credibility of Ball's testimony. It is a reasonable inference that his initial refusal to \\\"implicate\\\" Haugen was because Haugen was innocent rather than the refusal of a pal to squeal on his partner. It is a reasonable inference that his subsequent naming of Haugen as coparticipant was an expression of anger or disappointment in not getting a loan to help secure trial counsel rather than a feeling that he ought no longer protect a partner in crime who would not assist his defense. However, the inference, among those apparently reasonable alternatives, to be drawn was here for the jury to draw.\\nIt is clear the jury believed the testimony of John Ball, supported by some of the surrounding facts and circumstances, but weakened by other facts in this record. It is as clear the jury did not believe the testimony of Roger Haugen, supported by some, but not all, of the surrounding facts and circumstances. The issue is one of comparative credibility, and in this state the jury had \\\". . . great latitude in determining the credibility of the witnesses and the weight of the testimony. . . .\\\" (State v. Richardson (1969), 44 Wis. 2d 75, 77, 170 N. W. 2d 775.) Also, the trial court, which shared with the jury the opportunity to observe the witnesses on the witness stand, their demeanor and manner of testifying, by denying motions after verdict, found that the jury could \\\". . . acting reasonably, be convinced beyond reasonable doubt of such guilt from the evidence . . . .\\\" (State v. Richardson, supra, at page 77.)\\nOn the appeal in a criminal case of a jury verdict and court judgment, an appellate court is not to sit itself in a successor jury box and decide what verdict it would or could agree upon on the testimony offered. This would substitute the cold type of a transcribed record for the whole process of question-and-answer, action-and-reaction and words-plus-demeanor that constitute a trial. It is the inherent limitations of dependence upon transcript and argument that has led this court to state that: \\\" . . The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt .'\\\" (State v. McCarty (1970), 47 Wis. 2d 781, 790, 177 N. W. 2d 819); and that \\\". . . only when the evidence that the trier of fact has relied upon is inherently or patently incredible that the appellate court will substitute its judgment for that of the fact finder, who has the great advantage of being present at the trial.\\\" (Gauthier v. State (1965), 28 Wis. 2d 412, 416, 137 N. W. 2d 101, certiorari denied, 383 U. S. 916, 86 Sup. Ct. 910, 15 L. Ed. 2d 671.) We cannot hold that the testimony supporting conviction in this case is inherently or patently incredible. Even if it were to be considered entirely uncorroborated testimony of an accomplice to a crime, it would be \\\". . . competent evidence upon which to base a verdict of guilty if it is of such a nature that it is entitled to belief and the jury believes it. . . .\\\" (Sparkman v. State (1965), 27 Wis. 2d 92, 95, 133 N. W. 2d 776.) Here, as in a recent case, there was at least the \\\". . . circumstantial evidence from which the jury could conclude that [the accomplice] and the defendant were together during the earlier part of the evening when the burglary took place.\\\" (Jandrt v. State (1969), 43 Wis. 2d 497, 503, 168 N. W. 2d 602.) Using the language of the Jandrt Case, we conclude: \\\"After reviewing the entire record, we are satisfied that the accomplice's testimony . is not incredible and that the jury could have believed what the accomplice said . . . .\\\" (Id. at page 502.) The trial court in this case instructed the jury: \\\". . . ordinarily it is unsafe to convict upon the uncorroborated testimony of an accomplice; and, therefore, you should examine the evidence with the utmost care and caution; scrutinize it closely and weigh it in the light of all the attending circumstances as shown by the whole evidence. .\\\" That points out the perils and counsel's caution in evaluating the testimony, uncorroborated, of an accomplice to a crime. But it did not require the jury to disbelieve the testimony of John Ball. Believing that testimony, in the light of all surrounding circumstances, the jury was entitled to return a verdict of guilty.\\nBy the Court. \\u2014 Judgment affirmed.\"}"

wis/8670192.json

@@ -0,0 +1 @@
+"{\"id\": \"8670192\", \"name\": \"Fite, Plaintiff in error, v. State, Defendant in error\", \"name_abbreviation\": \"Fite v. State\", \"decision_date\": \"1973-06-05\", \"docket_number\": \"No. State 25\", \"first_page\": \"739\", \"last_page\": \"739\", \"citations\": \"58 Wis. 2d 739\", \"volume\": \"58\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T00:41:04.436215+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fite, Plaintiff in error, v. State, Defendant in error.\", \"head_matter\": \"Fite, Plaintiff in error, v. State, Defendant in error.\\nNo. State 25.\\nSubmitted May 3, 1973.\\nDecided June 5, 1973.\\n(Also reported in 207 N. W. 2d 672.)\\nFor the plaintiff in error the cause was submitted on the brief of J. D. McKay of Green Bay.\\nFor the defendant in error the cause was submitted on the brief of Robert W. Warren, attorney general, and James H. McDermott, assistant attorney general.\", \"word_count\": \"184\", \"char_count\": \"1001\", \"text\": \"Per Curiam.\\nThe court concludes the trial court correctly and completely responded to the jury's inquiry of whether the defendant could be convicted on only an accomplice's testimony. Testimony of an accomplice, even if it is uncorroborated, can support a verdict of guilty if it is of such a nature that it is entitled to belief. Jandrt v. State (1969), 43 Wis. 2d 497, 499, 168 N. W. 2d 602; see also: Cheney v. State (1969), 44 Wis. 2d 454, 467, 468, 171 N. W. 2d 339, 174 N. W. 2d 1.\\nTherefore, the trial court did not err in denying the defendant's motion for a new trial.\\nThe order is affirmed.\"}"

wis/8671064.json

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+"{\"id\": \"8671064\", \"name\": \"La Velle and another, d/b/a La Velle-Overton General Contractors, Plaintiffs and Respondents, v. De Luca and others, copartners, d/b/a De Luca's Restaurant & Cocktail Lounge, Defendants and Third-Party Plaintiffs and Appellants: Lincoln Savings & Loan Association, Defendant: Ver Halen, INC., and another, Third-Party Defendants and Respondents. [Case No. 140.]; Don Schuster Electric Corporation, Plaintiff and Respondent, v. De Luca and others, copartners, d/b/a De Luca's Restaurant & Cocktail Lounge, Defendants and Appellants: La Velle and another, d/b/a La Velle-Overton General Contractors, and another, Defendants and Respondents. [Case No. 141.]\", \"name_abbreviation\": \"La Velle v. De Luca\", \"decision_date\": \"1970-11-03\", \"docket_number\": \"Nos. 140, 141\", \"first_page\": \"464\", \"last_page\": \"471\", \"citations\": \"48 Wis. 2d 464\", \"volume\": \"48\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T21:13:55.899339+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"La Velle and another, d/b/a La Velle-Overton General Contractors, Plaintiffs and Respondents, v. De Luca and others, copartners, d/b/a De Luca\\u2019s Restaurant & Cocktail Lounge, Defendants and Third-Party Plaintiffs and Appellants: Lincoln Savings & Loan Association, Defendant: Ver Halen, INC., and another, Third-Party Defendants and Respondents. [Case No. 140.] Don Schuster Electric Corporation, Plaintiff and Respondent, v. De Luca and others, copartners, d/b/a De Luca\\u2019s Restaurant & Cocktail Lounge, Defendants and Appellants: La Velle and another, d/b/a La Velle-Overton General Contractors, and another, Defendants and Respondents. [Case No. 141.]\", \"head_matter\": \"La Velle and another, d/b/a La Velle-Overton General Contractors, Plaintiffs and Respondents, v. De Luca and others, copartners, d/b/a De Luca\\u2019s Restaurant & Cocktail Lounge, Defendants and Third-Party Plaintiffs and Appellants: Lincoln Savings & Loan Association, Defendant: Ver Halen, INC., and another, Third-Party Defendants and Respondents. [Case No. 140.] Don Schuster Electric Corporation, Plaintiff and Respondent, v. De Luca and others, copartners, d/b/a De Luca\\u2019s Restaurant & Cocktail Lounge, Defendants and Appellants: La Velle and another, d/b/a La Velle-Overton General Contractors, and another, Defendants and Respondents. [Case No. 141.]\\nNos. 140, 141.\\nArgued October 6, 1970. \\u2014\\nDecided November 3, 1970.\\n(Also reported in 180 N. W. 2d 710.)\\nFor the appellants there was a brief by Peregrine, Schimenz, Marcuvitz & Cameron of Milwaukee, and oral argument by Alan Marcuvitz.\\nFor the respondents La Velle and Overton d/b/a La Velle-Overton General Contractors and Cudahy Lumber & Supply there was a brief and oral argument by Thomas J. Bergen of Milwaukee.\\nFor the respondent Don Schuster Electric Corporation there was a brief and oral argument by Terese A. Tillman of Milwaukee.\", \"word_count\": \"1884\", \"char_count\": \"10866\", \"text\": \"Hallows, C. J.\\nThe brief of De Luca raises five questions which may be telescoped into two: (1) Is there sufficient evidence to sustain the court's finding of the nature of the contract entered into by La Velle and De Luca for the remodeling of the restaurant and cocktail lounge; and (2) is there sufficient evidence to support the trial court's findings of the amounts due La Velle, Cudahy, and Schuster?\\nAt the outset we point out the well-established appellate rule that unless the findings of the trial court are against the great weight and clear preponderance of the evidence they should not and will not he disturbed on appeal. Some years ago this court stated another salutary rule and in view of the workload of this court, it should be revived and followed, namely, \\\"When the only question involved is whether the evidence supports findings and we consider that it does, we do not ordinarily file an opinion. Were this the only question involved we would not file one in this case.\\\" Jacobson v. Bryan (1944), 244 Wis. 359, 361, 12 N. W. 2d 789. Thus, in this opinion we will discuss only the facts sufficient to raise the questions of law underlying De Luca's contention the findings are not sustained.\\nThe court found the agreement between De Luca and La Velle was to remodel the building on a time and material basis and not for a fixed price plus extras as contended by De Luca. We think the evidence sustains this finding. It may be that another trier of the fact could have reasonably found that a contract for a fixed price was entered into but the finding the contract was a time and material one is not against the great weight and clear preponderance of the evidence. At the beginning, at the instance of De Luca, La Velle submitted a price to remodel the restaurant and cocktail lounge in the sum of $10,471, but De Luca thought the price was too much, and an understanding was arrived at to do the work listed in the proposal on a time and material basis but not to exceed the amount of the proposal. The work was to be done in two weeks during August of 1966, and included the removal of a partition wall between the bar and the dining room, the installation of a new wall with masonite panel, repair of a structural beam in front of the building, replace ceiling tile and ceramic tile damaged in the repair of the beam, the installation of new stairs, a new partial landing and a new ceiling over the stairs, remodeling the bar, about $500 of electrical work and $350 of plumbing.\\nHowever, before the work had hardly started, De Luca wanted air conditioning- in the bar and dining rooms. An estimate of $6,000 to $8,000 was rejected by De Luca, so it was agreed that five window air-conditioning units should be installed. This installation required the removal of refrigeration units in the barroom and adapting the new units to window openings. Other additional work included the removal of the boxed-in piping in the ceiling of both the lounge and the dining room and a new ceiling rather than the originally planned repair of the ceiling due to the removal of the partition wall. Some dead heating pipes were removed. De Luca decided the recessed lighting should be removed and replaced with ornamental lights. Special lighting was ordered for the dining room and De Luca chartered an airplane to go to Kentucky to get light fixtures so the job could be completed within the two-week period. When Schuster's electricians broke through the ceiling and discovered old box BX cable, it became necessary under the electrical code to modernize the entire electrical circuit in the bar and dining rooms. Major cracks in the east wall of the living room had to be repaired. The bar was redesigned from the original proposal to increase its capacity. The entrance to the premises was redesigned and rebuilt so the public could enter through the street door and the walls in the entry were panelled with wood. In short, the original job grew like Topsy but in considerably less time and resulted in a bill in excess of $27,000 submitted by La Velle for $24,174.59 after payment credit of $8,500.\\nDe Luca's contention is that the contract was for a definite sum of $10,471 and the additional work consisted of extras, which La Velle is required to separate, and the recovery for such extras must be in quantum meruit. This view would require La Velle to prove the reasonable value of the extras because no agreement existed as to their price. The law so holding is Molzahn v. Christensen (1913), 152 Wis. 520, 139 N. W. 429; Venzke v. Magdanz (1943), 243 Wis. 155, 9 N. W. 2d 604. But, this argument is not valid because the trial court rejected this view of the facts and found the case was not one of extras but one for time and material originally and continued to be such until the end.\\nWe think the trial court was correct in its view and in using the term \\\"time and material basis\\\" as not restricted to the bare bone costs of what La Velle paid his workmen and for material but included these items plus overhead and profit which the building contractor usually charged. Sometimes these costs of doing business are included in the rate charged for labor and sometimes they are considered as separate items. In either event it is unreasonable to infer a building contractor on \\\"time and material\\\" is to work without all his costs and a reasonable profit.\\nFurther, De Luca's argument that in a time and material contract overhead expenses cannot be included unless it is expressly agreed upon is not supported by the cases. Nolop v. Spettel (1954), 267 Wis. 245, 64 N. W. 2d 859, cited by De Luca, does not stand for this broad contention. There, the contract expressly defined the term \\\"time and material\\\" in a cost-plus contract as not including overhead. We think there may be a distinction between a cost-plus and a time and material contract. When one hires a contractor to do work and does not make a specific contract for a definite sum, it is generally understood to be for time and material as that contractor does business, i.e., his usual charges for such work. A cost-plus contract is generally in writing with the items of cost and the amount of profit agreed upon. 13 Am. Jur. 2d, Building and Construction Contracts, p. 22, sec. 20. A third situation is the position of De Luca, namely, if there is no contract, the work is to be for a reasonable price which the contractor must prove on a quantum, meruit basis. In quantum meruit, one must prove the reasonable value of the services and material because where no contract exists or the contract is invalid or unenforceable a promise is implied to pay the reasonable value. Mead v. Ringling (1954), 266 Wis. 523, 64 N. W. 2d 222, 65 N. W. 2d 35; Central Refrigeration, Inc. v. Monroe (1951), 259 Wis. 23, 47 N. W. 2d 438; Piehl v. Marino (1949), 254 Wis. 538, 36 N. W. 2d 694.\\nDe Luca relies on Olbert v. Ede (1968), 38 Wis. 2d 240, 156 N. W. 2d 422. But in that case there was a definite construction contract for a fixed sum which was so changed by the addition of variances from the original plan that factually it could be said the original contract was abandoned and there was no definite contract for the entire project. Here, we have a \\\"time and material\\\" contract for the entire project.\\nDe Luca contends the evidence is insufficient to support the amounts due the contractors. La Yelle, Cudahy, and Schuster, all put in evidence their time, amount paid workmen, price of material and other details. La Velle additionally put in evidence the reasonableness of his overhead charge. The trial court found the evidence of the extent of the work, including extensive overtime necessary to meet the deadline, the material used and price, the wages paid to workmen, and a fair overhead charge and profit was sufficient proof to establish the amount of the claims. We agree and we think in this time and material contract De Luca had the burden of proving the unreasonableness of the charges.\\nIn respect to Schuster and Cudahy, De Luca argues he as the owner can assert to a subcontractor's claim any defenses the principal contractor might have against the subcontractor, relying on H. & M. Heating Co. v. Andrae (1967), 35 Wis. 2d 1, 150 N. W. 2d 379. However, the record does not reveal any defense La Velle had or has against Schuster or Cudahy. What De Luca is attempt ing to do is to assert his erroneous theory of the nature of the contract and its proof against Schuster and Cuda-hy. This he cannot do any more than he can assert it against La Velle.\\nThe findings of fact and the conclusions of law of the trial court were extensive and not against the great weight and clear preponderance of the evidence. Its decision was well reasoned and comprehensive and discusses the evidence in detail. We find no reason why the judgments should not be affirmed except in one minor respect. The La Velle judgment is for the amount of his claim as adjusted and less the amounts of the judgments in favor of the subcontractors Cudahy and Schuster. On this appeal, La Velle admits there is an error of $380 in his favor in his judgment because a credit of that amount was overlooked. This should be adjusted in the judgment upon the remand of the record.\\nBy the Court. \\u2014 The principal amount of the judgment in favor of James Patrick La Velle and Clarence Richard Overton, copartners doing business as La Velle-Overton General Contractors, should be reduced by $380 with resulting modification in interest and, as so modified, is affirmed; the judgments in favor of Cudahy Lumber & Supply and of Don Schuster Electric Corporation are affirmed; full costs are allowed to the respondents.\"}"

wis/8671100.json

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+"{\"id\": \"8671100\", \"name\": \"State ex rel. Stollberg, Appellant, v. Crittenden, Respondent\", \"name_abbreviation\": \"Stollberg v. Crittenden\", \"decision_date\": \"1966-01-04\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"418\", \"citations\": \"29 Wis. 2d 413\", \"volume\": \"29\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T17:35:44.564823+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. Stollberg, Appellant, v. Crittenden, Respondent.\", \"head_matter\": \"State ex rel. Stollberg, Appellant, v. Crittenden, Respondent.\\nDecember 2, 1965\\nJanuary 4, 1966.\\nFor the appellant there was a brief by Bronson C. La Follette, attorney general, and Robert P. Russell, corporation counsel of Milwaukee county, and Patrick J. Foster, assistant corporation counsel, and oral argument by Mr. Foster.\\nFor the respondent there was a brief by Edioard R. Cameron and Alvin L. Zelonky, both of Milwaukee, and oral argument by Mr. Cameron.\", \"word_count\": \"1289\", \"char_count\": \"7662\", \"text\": \"Currie, C. J.\\nCounsel for relator raise the following contentions on this appeal:\\n(1) There is no credible evidence which in any reasonable view supports the jury verdict.\\n(2) Defendant's counsel engaged in improper cross-examination and made improper remarks in the presence of the jury which were prejudicial and require a new trial if this court does not determine that the evidence requires a judgment that defendant is the father of the child.\\n(3) A new trial should be granted in the interest of justice if relator does not prevail with respect to either of the foregoing two contentions.\\nCredible Evidence to Sustain Verdict.\\nThe child, a boy, was born September 16, 1964, and weighed seven pounds seven ounces. Eelator's last menstrual period before the child's birth commenced December 14, 1963, and lasted approximately five days.\\nRelator and defendant became acquainted at \\\"Bennie's\\\" tavern in Milwaukee where defendant was working as a bartender. Defendant had commenced work as a bartender in the month of November, 1963, and testified he noticed that relator frequented the bar three or four times a week. He testified relator always remained until closing time and then left with other men.\\nOn the night of December 22d, after the bar closed, defendant took relator home for the first time. Both parties testified they engaged in intercourse that first night they were together. Their relationship continued through the remainder of December and the month of January and involved further engagements in intercourse.\\nThere was no testimony that relator had intercourse with other men during the period of probable conception, but defendant testified that relator often left the bar with other men after closing time, and named three and a possible fourth. Relator admitted that during this period she had been \\\"taken home\\\" by two of the men named by defendant on different occasions after the bar had closed.\\nRelator contends that these instances when she was taken home after the bar closed were not \\\"dates\\\" with the men involved, and she did not in fact \\\"go out\\\" with them. However, relator also did not consider that her first night out with defendant was a \\\"date,\\\" yet they engaged in sexual intercourse on that first night.\\nCounsel for relator contend that there was no credible evidence to support the jury's verdict that defendant was not the father of the child. This contention is based on defendant's admission that he had intercourse with relator during the conception period and the fact that there was no direct contradiction of relator's testimony that she did not have intercourse with any other men during this period. Defendant, on the other hand, maintains that there was evidence from which the jury could draw a reasonable inference that relator had intercourse with men other than defendant during the conception period. Our review of the record satisfies us that the jury could draw such an inference from the evidence herein-before reviewed.\\nThe jury probably considered highly significant the fact that relator had intercourse with defendant the very first night he took her home from the tavern. It would not be unreasonable for the jury to conclude that the same result probably occurred when other men took her home from the tavern during the conception period. The evidence does not suggest that relator and defendant were engaged in any love affair that distinguished their relationship from that which might have existed between her and the other men who took her home from the tavern.\\nCounsel for relator stress the fact that her testimony, that she did not have intercourse with any men other than defendant during the conception period, was not directly controverted. However, the jury were the judges of her credibility and were not required to accept her testimony as true. As was stated in State ex rel. Kurtz v. Knutson:\\n\\\"In illegitimacy proceedings the testimony of the complaining witness that she had timely intercourse with the defendant and that she had none with anyone else is sufficient to support a verdict that the defendant is the father of her child, if the jury believed it. Wille v. State ex rel. Kessler, 192 Wis. 224, 212 N. W. 260; State v. Willing, 259 Wis. 395, 48 N. W. (2d) 236.\\\" (Emphasis supplied.)\\nWe conclude that there was credible evidence which reasonably supports the jury's verdict.\\nAlleged Misconduct by Defendants Counsel.\\nThe trial court considered that the possible date of conception lay somewhere between November 18, 1963, and January 17, 1964, and that any act of sexual intercourse by relator prior to November 18, 1963, was immaterial. Accordingly the trial court sustained objections to all questions propounded by defendant's counsel which sought to establish that relator had had sexual intercourse prior to that date.\\nCounsel for relator contend that defendant's attorney engaged in prejudicial improper conduct in repeatedly asking questions on cross-examination which had to do with relator's conduct prior to November 18, 1963, after the trial court had sustained objections to this line of questioning. It is further contended that defendant's counsel was guilty of prejudicial misconduct when he stated in the presence of the jury:\\n\\\"I can establish a pattern of conduct that this woman pursued prior to November 17th that would leave me or give the jury the inference that she was of loose moral character.\\\"\\nRelator's counsel, beyond objecting to questions put by defendant's counsel, did not call the trial court's attention to any alleged misconduct on the latter's part which called for corrective action by the court. Nor did relator's counsel make any motion for mistrial. By failing to move for a mistrial prior to the case being submitted to the jury, counsel for relator waived any right to assert prejudice later.\\nThere is another reason why counsel for relator are precluded from now predicating error on conduct of opposing counsel. This is that it was not alleged as a ground for new trial in the motions after verdict. Errors which the trial court might correct by granting a new trial must be brought to the attention of that court before they will be reviewable as a matter of right on appeal.\\nNew Trial in the Interest of Justice.\\nThis court declines to exercise its discretionary power under sec. 251.09, Stats., and direct a new trial in the interest of justice because our reading of the record does not convince us that justice probably miscarried.\\nBy the Court. \\u2014 Judgment affirmed.\\nHeuer v. Heuer (1959), 7 Wis. (2d) 208, 213, 96 N. W. (2d) 485; Estate of Brandenburg (1961), 13 Wis. (2d) 217, 225, 108 N. W. (2d) 374.\\n(1958), 5 Wis. (2d) 609, 611, 93 N. W. (2d) 348; quoted with approval in State ex rel. Kapusta v. Weir (1960), 12 Wis. (2d) 96, 99, 106 N. W. (2d) 292; and State ex rel. Sarnowski v. Fox (1963), 19 Wis. (2d) 68, 70, 119 N. W. (2d) 451.\\nKink v. Combs (1965), 28 Wis. (2d) 65, 72, 135 N. W. (2d) 789, and cases cited.\\nWithers v. Tucker (1965), 28 Wis. (2d) 82, 87, 135 N. W. (2d) 776; Dombeck v. Chicago, M., St. P. & P. R. Co. (1964), 24 Wis. (2d) 420, 430, 129 N. W. (2d) 185.\\nState ex rel. Burns v. Vernon (1965), 26 Wis. (2d) 563, 569, 133 N. W. (2d) 292.\"}"

wis/8674054.json

@@ -0,0 +1 @@
+"{\"id\": \"8674054\", \"name\": \"State of Wisconsin, Plaintiff-Respondent, v. Marcellus Linsey Oliver, Defendant-Appellant\", \"name_abbreviation\": \"State v. Oliver\", \"decision_date\": \"1982-07-02\", \"docket_number\": \"No. 81 \\u2014 1488-CR\", \"first_page\": \"25\", \"last_page\": \"32\", \"citations\": \"108 Wis. 2d 25\", \"volume\": \"108\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-11T02:03:52.112232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Wisconsin, Plaintiff-Respondent, v. Marcellus Linsey Oliver, Defendant-Appellant.\", \"head_matter\": \"State of Wisconsin, Plaintiff-Respondent, v. Marcellus Linsey Oliver, Defendant-Appellant.\\nSupreme Court\\nNo. 81 \\u2014 1488-CR.\\nArgued June 3, 1982.\\nDecided July 2, 1982.\\n(Also reported in 321 N.W.2d 119.)\\nFor the defendant-appellant there were briefs and oral argument by Donald T. Lang, assistant state public defender.\\nFor the plaintiff-respondent the cause was argued by Kirbie Knutson, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.\", \"word_count\": \"2068\", \"char_count\": \"12595\", \"text\": \"BEILFUSS, C.J.\\nThis is an appeal from a judgment of the circuit court for Milwaukee county. The defendant was convicted of attempted manslaughter. This court granted the State's petition to bypass the court of appeals pursuant to sec. 808.05 (1), Stats.\\nThe defendant, Marcellus Oliver, was charged with attempted first-degree murder in connection with the shooting of a Perry Burton on November 7, 1980. At trial the evidence revealed that Oliver and Burton were rivals over a sixteen-year-old girl. Oliver, who was then eighteen years old, had been seeing the girl for the past two-and-one-half years. On November 5, 1980, she broke up with him. Two days later, on the evening of November 7, Burton was walking with the girl when they encountered the defendant holding a pistol. Burton began running towards Oliver. It is unclear from the record whether there was any physical contact between Oliver and Burton. Oliver stated that Burton hit his hand, while Burton seems to claim that he simply ran away from Oliver. Two shots were fired by Oliver, the second one striking Burton in the lower back. Burton suffered the loss of a kidney and part of his bowel as a result of the wound.\\nAt trial the judge instructed the jury on attempted first-degree murder, attempted manslaughter, and en dangering safety by conduct regardless of life. Defense counsel requested the instruction on attempted manslaughter, while the prosecutor objected to the instruction on the ground that the crime of attempted manslaughter did not exist in Wisconsin. The jury returned a verdict of guilty of attempted manslaughter and sentence was imposed in accordance with that verdict.\\nOn appeal the defendant argues that the attempted manslaughter instruction should not have been given. Despite having requested this instruction at trial, the defendant now argues that no such crime exists in this state. This was the argument made by the prosecution at trial, but on this appeal the State now contends that such a crime does exist and that the instruction was properly given.\\nThe sole issue in this case is whether the crime of attempted manslaughter can exist in this state by virtue of our Criminal Code. The defendant argues that manslaughter is a non-intent crime and that one cannot attempt a non-intent crime. He relies on the literal language of the manslaughter statute, sec. 940.05(1), Stats., which provides: \\\"Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: (1) Without intent to kill and while in the heat of passion.\\\" According to the defendant, this language clearly states that manslaughter does not include the intent to kill. The statute governing- attempt crimes requires that one have the intent to commit acts which would constitute a crime. Criminal attempt is defined in sec. 939.32(2) : \\\"An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.\\\" The defendant thus argues that he could not properly be convicted of attempting the non-intent crime of manslaughter.\\nThe parties agree that this issue will be resolved by our decisions in State v. Lee, 108 Wis. 2d 1, 321 N.W. 2d 108 (1982), and State v. Poth, 108 Wis. 2d 17, 321 N.W.2d 115 (1982). In these cases, which we also decide today, we hold that the literal language of sec. 940.05(1), Stats., requiring that a defendant act without intent to kill, is a legal fiction. Heat of passion negates the distinct intent required for first-degree murder, but a defendant acting in the heat of passion may still intend to actually kill a person. It necessarily follows from this result that a defendant may be guilty of attempted manslaughter. A person may have the actual intent to kill someone and attempt to do so, but still be acting in the heat of passion as that phrase has been interpreted.\\nThe trial judge in this case was a member of the committee which drafted criminal jury instructions. His discussion with counsel indicated his awareness of the inconsistencies between the literal language of the manslaughter statute, the pattern jury instructions on manslaughter, and past decisions of this court. His resolution of this confusion was in accord with our holding in Lee, supra. He held that once sufficient evidence is introduced to raise the issue of heat of passion-manslaughter, the burden falls upon the State to prove beyond a reasonable doubt that the defendant did not act in the heat of passion. Because heat of passion-manslaughter may involve an actual intent to kill, he ruled that attempted manslaughter does exist.\\nWe are aware that our holding contradicts language in the case of State v. Carter, 44 Wis. 2d 151, 170 N.W.2d 681 (1969). In Carter, this court affirmed a trial court's decision not to give jury instructions on attempted second-degree murder, attempted third-degree murder, attempted manslaughter, and injury by conduct regardless of life. Relying solely on the literal meaning of sec. 940.05(1), Stats., the court wrote,that intent is not an element of manslaughter. However, the court in Carter was not faced with the inconsistency between this statute, the jury instructions, and past precedent. Furthermore, other decisions implicitly suggest that a person may act in the heat of passion and still possess the intent to kill. See, e.g., Boissonneault v. State, 50 Wis. 2d 662, 665-66, 184 N.W.2d 846; State v. Hoyt, 21 Wis. 2d 810, 124 N.W.2d 47, 21 Wis. 2d 284, 128 N.W.2d 645 (1964) (on rehearing). Faced squarely with the question of the elements of heat of passion-manslaughter, we decided in Lee that an actual intent to kill may be present when a defendant acts in the heat of passion. Therefore, the trial court correctly concluded that attempted manslaughter does exist as a crime in this state. The instruction given was proper and the judgment of conviction should be affirmed.\\nBy the Court. \\u2014 Judgment affirmed.\\nSec. 808.05(1), Stats., provides:\\n\\\"808.05 Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:\\n\\\"(1) It grants direct review upon a petition to bypass filed by a party.\\\"\\nSec. 940.01, Stats., provides:\\n\\\"940.01 First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.\\\"\\nAnd sec. 939.32 defines \\\"attempt\\\":\\n\\\"939.32 Attempt. (1) Whoever attempts to commit a felony or a battery as defined by s. 940.19 or theft as defined by s. 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except that for an attempt to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony. Whoever attempts to commit a battery as defined in s. 940.20(2) is guilty of a Class A misdemeanor.\\n\\\"(2) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and'that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.\\\"\\nSec. 940.05, Stats., states:\\n\\\"940.05 Manslaughter. Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:\\n\\\"(1) Without intent to kill and while in the heat of passion.\\\"\\n\\\"941.30 Endangering safety by conduct regardless of life. Whoever endangers another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, is guilty of a Class D felony.\\\"\"}"

wis/8674130.json

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+"{\"id\": \"8674130\", \"name\": \"Neal Houslet, Jr., Petitioner-Respondent, v. State of Wisconsin Department of Natural Resources, Appellant\", \"name_abbreviation\": \"Houslet v. State\", \"decision_date\": \"1982-12-13\", \"docket_number\": \"No. 80-909\", \"first_page\": \"280\", \"last_page\": \"291\", \"citations\": \"110 Wis. 2d 280\", \"volume\": \"110\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Court of Appeals\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:36:08.589215+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Gartzke, P.J., Bablitch, J. and Dykman, J.\", \"parties\": \"Neal Houslet, Jr., Petitioner-Respondent, v. State of Wisconsin Department of Natural Resources, Appellant.\", \"head_matter\": \"Neal Houslet, Jr., Petitioner-Respondent, v. State of Wisconsin Department of Natural Resources, Appellant.\\nCourt of Appeals\\nNo. 80-909.\\nSubmitted on briefs August 6, 1981.\\nDecided December 13, 1982.\\n(Also reported in 329 N.W.2d 219.)\\nFor the appellant the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Linda H. Bochert, assistant attorney general.\\nFor the petitioner-respondent the cause was submitted on the brief of Tommy G. Thompson and Thompson Law Office of Mauston.\\nBefore Gartzke, P.J., Bablitch, J. and Dykman, J.\", \"word_count\": \"3282\", \"char_count\": \"20143\", \"text\": \"BABLITCH, J.\\nThe Department of Natural Resources appeals from an order remanding for reconsideration its order denying respondent Houslet a dredging contract under sec. 30.20 (2), Stats.\\nThe issues are:\\n(1) Whether the department correctly applied Wis. Admin. Code, sec. NR 1.95(4) (b), pertaining to the regulation of wetlands, in denying Houslet's dredging application; and\\n(2) Whether the department erred in failing to make a specific finding concerning the potential effect of granting the contract on water quality and water pollution pursuant to Reuter v. Department of Natural Resources, 43 Wis. 2d 272, 168 N.W.2d 860 (1969).\\nWe hold that the department correctly applied the administrative wetlands regulation in exercising its discretion to refuse to enter a dredging contract under sec. 30.20(2) (a), Stats., and that its failure to make a specific finding concerning the potential pollutant effects of the dredging project was harmless error which does not warrant remand to the department for reconsideration. We therefore reverse.\\nThe facts are undisputed. Houslet owns property adjacent to Goose Lake in the Town of Jackson, Adams County. Goose Lake is a natural \\\"pothole\\\" lake of about 84 acres, with an ordinary high water mark of 97.7 feet. Houslet applied for a dredging contract authorizing him to remove 7,500 cubic yards of material consisting of muck, weeds, and other organic bottom materials from a designated portion of the lake. His purpose was to make the project area suitable for swimming so that he could develop his adjacent property into residential lots.\\nThe department's initial denial of Houslet's application was reviewed and upheld by an independent hearing examiner who made independent findings of fact and conclusions of law after an evidentiary hearing. The examiner specifically found that \\\"[t]he proposed dredging project is entirely below the ordinary high water mark of Goose Lake.\\\" This finding is not challenged on appeal.\\nIn addition, the examiner made the following unchallenged findings of fact:\\n7. The proposed dredging site includes areas which have lush growths of emergent and floating plants. These plants provide a desirable habitat for wildlife, especially waterfowl which are attracted to the area by the available feed. Although a modest amount of other wildlife habitat does exist in the Goose Lake area, the destruction of this wetland area by the proposed dredging would remove this highly desirable area from its natural state.\\n8. No fish spawning beds have been found in the proposed project site. The area presently is utilized by fish when resting or feeding. Given the nature of Goose Lake's fish population and its history of winter fish kills, no substantial injury will occur to the public fishing rights if the contract is approved by the Department.\\n9. Dredging for the purpose of residential development on the south shore of Goose Lake as proposed by Mr. Houslet, would necessarily introduce increased human activity to an area which is presently undisturbed and in its natural state. Such activity would reduce the area's attractiveness to wildlife and reduce the amount of wetland habitat which is already scarce in the area.\\n10. Removal of the weedbeds and the deepening of Goose Lake by the proposed dredging would improve navigation through that portion of the lake.\\n11. Weighing the benefits to be gained by the public against the detrimental effects of the proposed project, it is reasonable to deny authority to the applicant to remove materials from the bed of Goose Lake.\\nThe only conclusion of law made by the examiner which is material to this appeal is:\\n2. A portion of the area which the applicant desires to dredge constitutes a wetland as defined in sec. NR 1.95(3), Wisconsin Administrative Code. Since the bed of a navigable lake is owned by the state and held in trust for its citizens, the disposition of the application herein is governed by sec. NR 1.95(4) (b). Said provision requires that the Department take all reasonable steps to minimize harmful effects to wetlands under its management and control. [Emphasis supplied.]\\nThe examiner's independent determination that the contract should be denied was the subject of a ch. 227, Stats., judicial review. The trial court held that the hearing examiner \\\"erred in concluding as a matter of law that part of the area which the applicant desires to dredge is a wetland area,\\\" and thus that the examiner \\\"incorrectly applied\\\" Wis. Admin Code sec. NR 1.95(4) (b) in denying the application. It also held that the examiner erred in failing to make a finding concerning the potential pollutant effect of the proposed dredging. The court said:\\n[T] he Department of Natural Resources did use criteria other than that set forth in Section 30.20. It is the opinion of this Court the Wisconsin Department of Natural Resources must follow 30.20 . . . and this Statute only. The legislature has set forth its criteria to determine removal of material as \\\"whenever consistent with public rights\\\". It further states, \\\"where the waters would not be disturbed in the removal operation . . .\\\" Also, \\\"contracts shall contain such conditions as may be necessary for the protection of the public interest and the interest of the state, . . .\\\" Finally, that the permit \\\"may be issued by the department if it finds that the issuance of such a permit will be consistent with the public interest in the water involved.\\\"\\nIt is the Order of the Court the matter be remanded to the Wisconsin Department of Natural Resources for further hearing. It is thus reconfirmed by the Court the decision that the Wisconsin Department of Natural Resources is mandated by this Statute to specifically follow it directly in line with the Legislative intent.\\nThe circuit court's order remanding to the department for reconsideration constituted a final order appealable as of right under sec. 808.03(1), Stats. Bearns v. ILHR Department, 102 Wis. 2d 70, 306 N.W.2d 22 (1981).\\nThe scope of our review is identical to that of the circuit court under sec. 227.20, Stats. Frito-Lay, Inc. v. Labor & Industry Review Comm., 95 Wis. 2d 395, 400, 290 N.W.2d 551, 555 (1980), aff'd., 101 Wis. 2d 169, 303 N.W.2d 668 (1981). The department's findings of fact will not be set aside if they are supported by substantial record evidence. Sec. 227.20(6); Boynton Cab Co. v. ILHR Department, 96 Wis. 2d 396, 405, 291 N.W.2d 850, 855 (1980). Questions of law are reviewable ab initio. Sec. 227.20(1) (b) ; Boynton Cab, supra. A reviewing court does, however, give due weight to an agency's interpretation. on a question of law where the agency applied its \\\"experience, technical competence, and specialized knowledge\\\" to the decision. Sec. 227.20 (10).\\n[A reviewing court] will give deference to agency determinations, where the agency has particular expertise, rational basis exists in law for the agency's interpretation, and it does not conflict with the statute's legislative history, prior decisions of this court, or constitutional prohibitions.\\nDepartment of Revenue v. Exxon Corp., 90 Wis. 2d 700, 713, 281 N.W.2d 94, 101 (1979), aff'd, 447 U.S. 207 (1980).\\nMoreover, where an agency's interpretation of its own administrative regulation is involved, \\\"It is black-letter law that the interpretation . is entitled to controlling weight unless inconsistent with the language of the regulation or clearly erroneous.\\\" Beal v. First Fed. Sav. & Loan Asso. of Madison, 90 Wis. 2d 171, 183, 279 N.W.2d 693, 698 (1979). Accord, Rickaby v. Health & Social Services Department, 98 Wis. 2d 456, 461, 297 N.W.2d 36,39 (Ct. App. 1980).\\nThe definition of \\\"wetlands\\\" provided in Wis. Admin. Code, sec. NR 1.95 (3) (1978) controls this appeal.\\nWetlands are here defined as those land areas characterized by surface water or saturated soils during at least a part of the growing season such that moist soil vegetation or shallow water plants can thrive. The permanent channels of streams and rivers and the open water areas of lakes and reservoirs are not included in this definition.\\nThe question whether a proj ect area is a wetland under the above definition presents a mixed question of fact and law. Ecologically salient characteristics of the site are factual matters. Whether factual findings fulfill the applicable definition of \\\"wetlands,\\\" however, is a question of law. Nottelson v. ILHR Department, 94 Wis. 2d 106, 115-16, 287 N.W.2d 763, 768 (1980).\\nIt is important to articulate what is not at issue. Hous-let challenges neither the examiner's findings of fact nor the department's authority to regulate wetlands. He does not contend that the regulation in question was beyond the department's authority to promulgate nor that it was promulgated improperly. He agrees that the entire project area was below the ordinary high water mark (OHWM) of the lake. He does not dispute that the OHWM marks the boundary between lake bed titled in the state, which is subject to state regulation in the public interest, and property titled in private owners.\\nHouslet's contention on appeal is that the project area cannot simultaneously constitute both a lake bed and a wetland. Because the entire area in question is below the OHWM, he contends, it must be entirely a lake bed no portion of which is governed by the regulations applicable to wetlands.\\nBecause no facts are in dispute and the controversy concerns only the conclusions which are to be drawn from undisputed facts, we review the matter ab initio as a question of law. We conclude that the department properly applied its wetlands regulation in denying the dredging contract.\\nHouslet cites no support for his contention that lake beds and wetlands are mutually exclusive categories. Neither Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914), nor Thomson v. Public Service Comm., 241 Wis. 243, 5 N.W.2d 769 (1942), provide any support for his position.\\nDiana Shooting Club, a trespass action, held that a boggy bay area of a river which was navigable during only part of the year, and which was covered with tall vegetation growing from the bottom of the water at a height of four or five feet above its surface, was a part of the public waterway open to public use. In determining that the defendant hunter was not guilty of trespassing on the plaintiff's private land adjoining the waterway, the court said:\\nHunting on navigable waters is lawful when it is confined strictly to such waters while they are in a navigable stage, and between the boundaries of ordinary high-water marks. When so confined it is immaterial what the character of the stream or water is. It may be deep or shallow, clear or covered with aquatic vegetation. 156 Wis. at 272, 145 N.W. at 820.\\nDiana Shooting Club thus supports the proposition that the public interest in and title to the navigable waters in this state attaches to more than the open and perpetually navigable waters contained in lakes, rivers and streams. It extends to areas covered with aquatic vegetation within the ordinary high water mark of the body of water in question. See also State v. McDonald Lumber Co., 18 Wis. 2d 173, 176, 118 N.W.2d 152, 153 (1962).\\nThomson, 241 Wis. at 248, 5 N.W.2d at 771, upon which Houslet primarily relies, accepted the definition of \\\"surface waters\\\" set forth in Restatement of Torts, sec. 846 at 333, and comment 6, as follows:\\n\\\"The term 'surface waters,' . . . comprehends waters from rains, springs or melting snow which lie or flow on the surface of the earth but which do not form part of a watercourse or lake.\\\"\\n\\\"The term 'surface waters' is used to describe those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth or found their way into a stream or lake . . . .\\\" [Emphasis supplied.]\\nAs we understand the respondent's position, it is that because the department defines wetlands as \\\"characterized by surface water,\\\" and because the above definition of \\\"surface waters\\\" excludes lake water, the project area cannot be a wetland. Because all of it is under the OHWM, he urges, it is thus a part of the lake rather than a wetland. We reject the position urged.\\nThe Restatement definition applies to torts involving interference with the use of water. Thomson used the definition in the context of an action to require a railroad to construct a culvert. Both these situations are distinguishable from that here: an administrative definition of wetlands.\\nAs appellant points out, the term \\\"surface water\\\" is used more broadly than the Restatement definition in a variety of Wisconsin statutes. Section 144.01 (19), Stats., lists it among the \\\"waters of the state.\\\" The same is done in sec. 147.015(13), Stats. Section 144.025(1), divides \\\"all waters of the state\\\" into ground water and surface water.\\nThe Wisconsin Administrative Code also defines the term in a broad fashion. In Wis. Admin. Code, sec. NR 101.03(4), relating to water and air pollution, the following definition is given:\\n\\\"Surface water\\\" means those portions of Lake Michigan and Lake Superior within the boundaries of Wisconsin, all lakes, bays, rivers, streams, springs, ponds, impounding reservoirs, marshes, water courses, drainage systems and other surface water, natural or artificial, public or private within the state or under its jurisdiction, except those waters which are entirely confined and completely retained upon the property of a facility.\\nAnd in Wis. Admin. Code, sec. NR 102.01(7), relating to water quality standards for Wisconsin surface waters:\\n\\\"Surface waters\\\" means all natural and artificial named and unnamed lakes and all naturally flowing streams within the boundaries of the state, but not including cooling lakes, farm ponds and facilities constructed for the treatment of wastewaters (the term waters as used in this chapter means surface waters.)\\nUnder all these definitions surface waters and lakes are not mutually exclusive. These definitions, and not the Thomson definition, control. Thus, the department properly applied its wetlands regulation to the project area which was undisputedly characterized in part by surface waters. Its application of that regulation was not in conflict with the broad provisions of sec. 30.20, Stats. The regulation is a narrow standard applicable to a precise kind of lake bed subject to the department's control in the public interest under the statute. The trial court was in error when it concluded to the contrary.\\nThe question remains whether the department's failure to make specific findings regarding the potential water pollution effects of the proposed dredging project as required under Reuter v. Department of Natural Resources, 43 Wis. 2d 272, 168 N.W.2d 860 (1969), requires a remand to the department. We conclude that it does not, although we reject the department's contention that Reuter is inapplicable to the present case.\\nIt is true, as the department contends, that Reuter involved a dredging application which was granted, where as in this case the application was denied. The department contends that Reuter should be confined to its facts, and urges that findings with respect to the probable water pollution effects would be mere surplusage in cases where an application is denied on other grounds. We disagree.\\nReuter held that in determining whether to grant a dredging contract in the public interest under sec. 30.30 (2) (c), Stats., the department was required to make a specific finding as to the effect of the proposed project upon water pollution. The court's language is broad, and admits of no exception.\\nRequiring the department to make a specific finding of fact as to effect of water pollution upon dredging recognizes the importance assigned to pollution by the legislature but leaves to the department the weighing of this factor along with others involved.\\nRequiring that a specific finding be made assures the parties concerned and affected that the legislatively required consideration of water pollution as a major factor in the decision-reaching process has been complied with. Such specific finding is also a substitute for conjecture and speculation should the department decision be brought to the courts for review.\\nThe legislature has provided for specific findings in hearings of this type. Where the pollution aspect has been given the importance that the legislature has attached to it, we hold that a specific finding covering the pollution aspect of the petition must be made. [Emphasis supplied, footnote omitted.]\\nReuter, 43 Wis. 2d at 277-78, 168 N.W.2d at 862.\\nThere is a purpose to be served in requiring a specific water pollution finding even when an application is denied on other grounds, because the denial on those grounds might be overturned on judicial review. Requiring a pollution finding in all cases would avoid the necessity of a remand to the department for the missing findings, in that event, and the probability of another judicial review thereafter. This would effect a savings in time and expense for litigants, the department, and reviewing courts alike.\\nWe therefore hold that a water pollution finding is required in all cases, regardless whether a dredging contract is granted or is denied for reasons unrelated to water pollution. A remand to the department is not necessary in this case, however, because we have concluded that the contract at issue was properly rejected under the wetlands regulation. The order of the trial court must therefore be reversed.\\nBy the Court. \\u2014 Order reversed.\\nSection 30.20(2), Stats., provides in relevant part as follows:\\nCONTRACTS FOR REMOVAL, (a) The department, whenever consistent with public rights, may enter into contracts on behalf of the state for the removal of any material from the bed of any navigable lake or any of the outlying waters, and for the lease or sale of the material. Every contract shall contain such conditions as may be necessary for the protection of the public interest and the interests of the state .\\nWisconsin Admin. Code, sec. NR 1.95(4) (b), states:\\n(b) For wetlands under its management and control, the department shall:\\n1. Preserve and protect them from harmful effects by every lawful means.\\n2. Recognize their obvious and subtle natural values in preparing management plans and take all reasonable steps to minimize harmful effects.\\nThe respondent's modified proposal was for the removal of 7,500 cubic yards of lake bed material from ,100 feet of lake frontage, in an area extending 30 feet into the lake on the eastern boundary, to 120 feet on the western boundary, with a maximum extension of 130 feet.\\nThe reference is to Wis. Admin. Code, sec. NR 1.95(3), as it stood in the Register of March 1978, No. 267, effective April 1, 1978. The same definition is currently found in sec. NR 1.95 (4)(c).\\nWe also note the similar definition of \\\"wetland\\\" found in sec. 23.32(1), Stats., applicable to wetlands mapping:\\nIn this section \\\"wetland\\\" means an area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.\\nSection 23.32(1), although not controlling here, is referenced in the recent wetlands act, ch. 330, Laws of 1981, effective May 7, 1982.\\nThe still-accepted definition of the ordinary high water mark is contained in Diana Shooting Club v. Husting, 156 Wis. 261, 272, 145 N.W. 816, 820 (1914).\\nThe definition in Restatement, Torts remains substantially the same as the current definition in Restatement (Second) of Torts sec. 846 (1979).\"}"

wis/8676005.json

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+"{\"id\": \"8676005\", \"name\": \"Queen Insurance Company of America, Appellant, v. Kaiser and others, d/b/a Kaiser Building Management Company, Respondents\", \"name_abbreviation\": \"Queen Insurance Co. of America v. Kaiser\", \"decision_date\": \"1965-06-01\", \"docket_number\": \"\", \"first_page\": \"571\", \"last_page\": \"577\", \"citations\": \"27 Wis. 2d 571\", \"volume\": \"27\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T20:37:11.987758+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Queen Insurance Company of America, Appellant, v. Kaiser and others, d/b/a Kaiser Building Management Company, Respondents.\", \"head_matter\": \"Queen Insurance Company of America, Appellant, v. Kaiser and others, d/b/a Kaiser Building Management Company, Respondents.\\nApril 27\\nJune 1, 1965.\\nFor the appellant there was a brief by Kivett & Kasdorf, attorneys, and James G. Forester of counsel, all of Milwaukee, and oral argument by Mr. Forester.\\nFor the respondents there was a brief by Kenneth M. Kenney and Wolfe, O\\u2019Leary, Kenney & Wolfe, all of Milwaukee, and oral argument by Kenneth M. Kenney.\", \"word_count\": \"1185\", \"char_count\": \"7033\", \"text\": \"Beilfuss, J.\\nThe issue is \\u2014 do the terms of the exculpatory clause of the lease exonerate the lessor from liability for damages sustained by the lessee and caused by the negligence of the lessor.\\nIt is conceded that the plaintiff insurer cannot recover under its subrogation agreement unless its insured (tenant Bruner) had a right to recovery. Frederick v. Great Northern R. Co. (1932), 207 Wis. 234, 240 N. W. 387, 241 N. W. 363.\\nThe legality of an exculpatory clause has not been challenged by the plaintiff.\\n\\\"The basis upon which the courts have upheld the validity of exculpatory clauses in lease contracts has been the broad ground of public policy and the freedom of contract guaranteed by the federal and state constitutions. More specifically, it has been held that the landlord and tenant relationship is not a matter of public interest, but relates exclusively to the private affairs of the parties concerned and that the two parties stand upon equal terms, . . .\\\" Anno. 175 A. L. R. 8, 86. See also, in general, Annos. 84 A. L. R. 654; 26 A. L. R. (2d) 1044, secs. 11, 13, 14, 15.\\nThe plaintiff-appellant contends the exculpatory clause should be strictly construed against nonliability and thus construed, the terms of the lease do not exonerate the lessor from liability under the facts of the case. The argument is that the water pipes froze and burst in an area not leased by Bruner and over which Bruner had no control, and that the parties did not intend that the lessor should be relieved from liability caused by the negligent acts of the employees of the lessor.\\nIn Johnson v. Prange-Geussenhainer Co. (1942), 240 Wis. 363, 375, 2 N. W. (2d) 723, it is stated:\\n\\\"... the rule of strict construction cannot be used as an instrument for defeating the clear intention of the parties.\\\"\\nIt is clear that this exculpatory clause was intended to limit the liability of the lessor. Clauses of this kind are not uncommon and are a proper subject of the bargain of the parties.\\nAs stated in Lerner v. Heicklen (1926), 89 Pa. Super. 234, 236:\\n\\\"It is not unreasonable to assume that the consideration that induces a tenant to enter into such a covenant is the fixing of a lower rental for the demised property than would otherwise be demanded by the lessor. Upon this matter the parties may bargain freely and agree upon their own terms. The covenant in question contravenes no policy of the law.\\\"\\nThe clause may be broken down to four parts: (1) \\\"Lessor shall not be liable for any damage occasioned by failure to keep said premises in repair;\\\" (2) \\\"and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam or other pipes, or sewerage, or the bursting, leaking or running of any cistern, tank, washstand, water-closet, or waste-pipe in, above, upon or about said building or premises;\\\" (3) \\\"nor for damage occasioned by water, snow or ice being upon or coming through the roof, sky-light, trap door or otherwise;\\\" (4) \\\"or for any damage arising from the acts or neglect of co-tenants or other occupants of the same building.\\\"\\nThe clause read as a whole expresses a broad intention to limit the liability of the lessor. The second part contains the most-significant limitation under the facts of this case. This portion of the clause provides that the lessor shall not be liable for damage caused by or from plumbing, water, or other pipes \\\"in, above, upon or about said building or premises.\\\" The language \\\"in, above, upon or about said building or premises\\\" is very broad and inclusive. We conclude that the parties did not intend to limit exculpation from liability to damage originating within the physical limits of building 1-A. The fact that Bruner obtained insurance to protect itself against this kind of loss is evidence of the intention of the parties.\\nMoroder v. Fox (1914), 155 Wis. 503, 143 N. W. 1040, cited by the plaintiff, must be distinguished on its facts. In that case lessee rented the first floor. The lease provided the lessee had the affirmative to take all necessary steps to prevent damage and to pay any damages occasioned by its failure. The clause under consideration here is one to release the lessor from liability. In Moroder the court held that the lessee had no right of access to the second floor and could not be held liable for failures originating from that source. The clause before us relieves the lessor of liability; in Moroder it created affirmative duties on the part of the lessee.\\nThe plaintiff submits that the clause does not specifically relieve the lessor from liability occasioned by the negligence of the lessor or its employees.\\nThe trial court stated in its memorandum opinion filed herein:\\n\\\"It is said in 32 Am. Jur., 616, Landlord and Tenant, sec. 739:\\n\\\" Tt is generally held that a provision exempting the landlord from liability on account of the condition of the premises does not apply where the damage sustained is the result of active negligence on the part of the landlord, although such provision may apply where the negligence charged is purely passive in its nature and is founded on the omission to correct leaks. It has been held that a covenant in a lease exempting the landlord from all liability for any and all damage caused by water, gas, etc., includes liability for acts of negligence.'\\n\\\"Active and passive negligence have been defined in 65 C. J. S., 322, Negligence, sec. 1 (e), as follows:\\n\\\" '. . . \\\"active negligence,\\\" . . . , denotes some positive act or some failure in a duty of operation which is the equivalent of a positive act, and \\\"passive negligence\\\" the failure to do something that should have been done.'\\n\\\"Under the rule adhered to in this state, passive negligence, as distinct from active or affirmative negligence, is insufficient to nullify an otherwise valid exculpatory clause in a lease. . . .\\\"\\nThe parties agree that the negligence of Landwehr, Kaiser's employee, was passive and not active negligence.\\nWe agree with the trial court that the negligence of Landwehr was only an inadvertent act of omission and, as such, passive negligence. We further agree that passive negligence, as distinguished from active negligence, will not invalidate the exculpatory clause of the lease under consideration, and that Kaiser was not liable to Bruner for damages caused by the broken pipe.\\nBecause we have determined that the exculpatory clause relieves Kaiser from liability, we deem it unnecessary to consider Kaiser's motion to review the negligence finding.\\nBy the Court. \\u2014 Judgment affirmed.\\nJohnson v. Prange-Geussenhainer Co., supra.\"}"

wis/8676161.json

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+"{\"id\": \"8676161\", \"name\": \"Radloff and another, Respondents, v. National Food Stores, Inc., Appellant\", \"name_abbreviation\": \"Radloff v. National Food Stores, Inc.\", \"decision_date\": \"1963-06-04\", \"docket_number\": \"\", \"first_page\": \"224\", \"last_page\": \"237b\", \"citations\": \"20 Wis. 2d 224\", \"volume\": \"20\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T22:28:54.073801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Radloff and another, Respondents, v. National Food Stores, Inc., Appellant.\", \"head_matter\": \"Radloff and another, Respondents, v. National Food Stores, Inc., Appellant.\\nApril 30\\nJune 4, 1963.\\nFor the appellant there was a brief by James C. Schalow and Daniel L. Costello, both of Milwaukee, and oral argument by Mr. Schalow.\\nFor the respondents there was a brief and oral argument by Jack J. Gimbel of Milwaukee.\\nMotion for rehearing denied, without costs, on October 1, 1963.\", \"word_count\": \"4229\", \"char_count\": \"24191\", \"text\": \"Wilkie, J.\\nThere are three separate issues to be resolved on this appeal. They are:\\n1. What duty does a storekeeper owe to a customer to protect that customer from injuries caused to him by the intentional acts of an escaping shoplifter ?\\n2. Did the trial court err in not granting a nonsuit?\\n3. Did the trial court err in not granting a directed verdict ?\\nFirst: What duty does a storekeeper owe to a customer to protect that customer from injuries caused to him by the intentional acts of an escaping shoplifterf Before considering the nature of a storekeeper's duty to protect customers from injuries caused by the intentional acts of an escaping shoplifter, it is first necessary to emphasize the legal rule governing the authority of storekeepers in dealing with shoplifters detected in the act of shoplifting on their premises.\\nIn Stittgen v. Rundle (1898), 99 Wis. 78, 80, 74 N. W. 536, this court established the principle that, \\\"An arrest without warrant has never been lawful except in those cases where the public security requires it; and. this has only been recognized in felony, and in breaches of the peace committed in the presence of the officer.\\\" This rule was reaffirmed in Gunderson v. Struebing (1905), 125 Wis. 173, 104 N. W. 149.\\nThus, when Young spotted the shoplifter putting the cigarettes under his coat, it would have been unlawful, at that time, for him to make an arrest. This is especially true when we consider the fact that the alleged shoplifter could well have paid for the items at the time that he went to the check-out counter.\\nThe defendant's employees were not negligent per se in stopping the shoplifter to recover the goods he had stolen, for certainly these employees had the right to recover their employer's goods. But they had no right to arrest the shoplifter, as the alleged crime was a misdemeanor and the employees of the National Food store did not have a warrant to arrest the shoplifter. Furthermore, it is quite obvious that under existing and well-established legal rules the supermarket employees had to be extremely careful in apprehending a customer suspected of shoplifting because if subsequent events showed that the person suspected had not in fact been shoplifting, then a suit for false imprisonment would be inevitable. For these reasons, Erickson and Young asked the shoplifter to return to the store voluntarily, and the testimony established that the shoplifter consented to return without compulsion.\\nThe respondent contends that the instant case is governed by Weihert v. Piccione (1956), 273 Wis. 448, 78 N. W. (2d) 757, which is cited by the trial court.\\nThe appellants assert that the case is controlled by Knight v. Powers Dry Goods Co. (1948), 225 Minn. 280, 30 N. W. (2d) 536.\\nIn the Weihert Case, supra, the defendant Piccione was the proprietor of a small restaurant in the city of Janesville. The plaintiff Eleanor Weihert, her husband, and one Donald Tischer, went to the defendant's restaurant late one evening. While at the restaurant a fight broke out between Mr. Tischer and one John Powers. After Powers had succeeded in knocking Tischer out, he purportedly twisted Mrs. Weihert's arm and thereby injured her. Piccione was in the back of the restaurant cooking, and had no knowledge that there was a fight or that one was about to break out. The whole incident took place in a very short period of time, and the evidence established that although Piccione knew Powers, he did not have knowledge that Powers was the type of man to act as he did. The court concluded that a nonsuit was properly granted and relied upon the following statement (p. 455) which was also used by the trial court here as the basis for its decision in the case at bar, namely:\\n\\\"While it is the general rule that a restaurateur is not an insurer of a guest or patron against personal injuries inflicted by other persons on the premises, who are in no manner connected with the business, Anno. 106 A. L. R. 1003 et seq., nevertheless the proprietor of a place of business who holds it out to the public for entry for his business purposes (including a restaurant) is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons, or by giving a warning adequate to enable them to avoid harm.\\\" (Emphasis added.)\\nIn the Knight Case, supra, a book thief (Ingall) was spotted browsing in a bookstore in Minneapolis. The proprietor of that store recognized the thief and called other bookstores to warn them that he was in the area. He later turned up at the defendant's store and was quickly spotted by two women floor detectives while he was in the process of stealing books. He then went outside the store and was confronted by one of the detectives who asked him, \\\" 'Pardon me, sir, but don't you think you had better pay for those books ?' \\\" He answered, \\\" T guess I will' in a very gentle, soft voice.\\\" (p. 282.) He then proceeded back to the manager's office with the two ladies escorting him. As they approached the elevator he suddenly turned around and tried to escape. The sixty-seven-year-old plaintiff, Mrs. Knight, tried to stop him and was knocked down and injured.\\nThe trial court instructed the jury as follows (p. 284):\\n\\\" 'The defendant in this case was bound to use reasonable care to protect plaintiff as its customer from injury at the hands of vicious or lawless persons who it might bring in to its store/ \\\"\\nThe jury returned a verdict for the plaintiff, but on appeal this order was reversed and judgment was ordered for the defendant on his motion for a judgment notwithstanding the verdict.\\nThe court observed (p. 284):\\n\\\"Until Ingall started to run, there is no evidence that defendant knew or should have known that he was vicious.\\n\\\"If defendant was negligent, that negligence must have taken place before Ingall started to run.\\\"\\nAnd (p. 286) :\\n\\\"It is evident from the above [testimony] that defendant's employes did not know they -viere dealing with a vicious or violent person, and there is nothing in the record to indicate that they should have so known. . . . Knowledge of the fact that Ingall was a shoplifter, a type of sneak thief, was not knowledge that he was vicious, violent or dangerous as well.\\\"\\nIn ruling that the lower court should have directed a verdict for the defendant, the Minnesota supreme court concluded (p. 286):\\n\\\"In Christianson v. C. St. P. M. & O. Ry. Co., 67 Minn. 94, 97, 69 N. W. 640, 641, Mr. Justice Mitchell states the rule: '. . . If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; . . . Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen.'\\n\\\"In Seward v. Minneapolis St. Ry. Co., 222 Minn. 454, 25 N. W. 2d 221, adherence to this rule was stated. In view of all the circumstances disclosed by the evidence, it cannot be said that defendant's employes had any reasonable ground to anticipate that the act of taking Ingall over to the elevator would or might result in any injury to anybody. Consequently their act would not be negligent.\\\"\\nDiscussing the responsibility of shopkeepers where persons are injured by the unexpected conduct of third persons in a store, Anno. 20 A. L. R. (2d) 40, sec. 15, citing the Knight Case, supra, states:\\n\\\"Unexpected conduct of other customers. It has been stated as a general rule that when an injury occurring on the proprietor's premises is the result of the negligence of a customer or customers, no liability attaches to the proprietor unless the circumstances are such that liability can be predicated on the theory of the existence of a dangerous condition known to or foreseeable by him which he failed to take reasonable precautions to alleviate.\\\" (Emphasis added.)\\nThe crucial factors to be considered in determining whether a party is guilty of negligence has been stated recently by this court in Wisconsin Power & Light Co. v. Columbia County (1962), 18 Wis. (2d) 39, 117 N. W. (2d) 597, as follows (p. 43):\\n\\\"Harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances. Mondl v. F. W. Woolworth Co., supra; Osborne v. Montgomery (1931), 203 Wis. 223, 234 N. W. 372; Barnes v. Murray (1943), 243 Wis. 297, 10 N. W. (2d) 123. To constitute negligence, not only must the act involve a risk which the actor realizes or should realize but the risk must be unreasonable. The test of unreasonableness is well stated in Restatement, 2 Torts, p. 785, sec. 291, as follows:\\n\\\"'(1) Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.' \\\"\\nIn both Weihert and Knight, the appellate court ruled that as a matter of law there was no negligence on the part of the entrepreneur. In both cases, the court was convinced that there was no knowledge of the acts of misconduct on the part of the third person so as to give rise to a duty on the part of the restaurant owner in Weihert or the storekeeper in Knight to act to protect the customers.\\nWe do not consider that the legal test of duty and negligence on the part of the storekeeper is different in Weihert from the rule in Knight. In either case, to establish negligence on the part of the proprietor it is necessary to show that the proprietor or his employees knew or by the exercise of reasonable care, could have discovered that such acts were being done or were about to be done by the third person so as to threaten the bodily security of other patrons on the premises.\\nThe entire cause here revolves around a determination on the evidence before the court, whether there was a jury question (1) as to whether the duty existed and (2) whether or not, if the duty existed, the storekeeper performed his duty in the exercise of reasonable care. This leads to a consideration of the other two issues, namely, whether the court erred either in failing to grant a nonsuit at the end of the plaintiffs' case, or in failing to grant a directed verdict to the defendant after all of the evidence was in.\\nSecond: Did the trial court err in not granting a non-suit? In determining whether or not the trial court should have granted a nonsuit it is necessary to review the evidence most favorable to the plaintiffs. Weihert v. Piccione, supra. The trial court, in denying the defendant's motion for non-suit, stated:\\n\\\"I believe that if a store employee undertakes to chase a two-hundred-fifty pound man through a store which has fifty customers in the store, engaging in such a chase can reasonably foresee that injury may befall one of the customers which is precisely what occurred in this case. . I have been in a number of these stores myself and I have never seen any store employees chase a two-hundred-fifty pound man through a crowded store and any employee who undertakes such an endeavor certainly can foresee that harm may befall one or another of the customers. Therefore the motion for nonsuit is denied and we'll await the plaintiffs' physician.\\\"\\nAt the time the plaintiffs rested, the only witnesses present at the scene of the accident and called to testify for the plaintiffs were the plaintiffs themselves. Their testimony was essentially that Mrs. Radloff was injured when she was knocked down by someone running from the store and that someone shouted, prior to that, \\\"Stop, you thief,\\\" and started to chase the man out the store. But at this point, there had been no testimony showing knowledge on the part of the storekeeper or his employees that the shoplifter would take such action as he did and thus harm the customers. Thus, there was no prima facie case, and the trial court should have granted a nonsuit when the plaintiffs rested. But, the effect of such a nonsuit is not to have a determination of the merits and the plaintiffs would then have been free to reassert their claim and retry it. See Klapinski v. Polewski (1963), 19 Wis. (2d) 124, 119 N. W. (2d) 424, at page 128. The defendant here has raised the question of error not only with respect to the trial court's failure to grant the motion for nonsuit, but also the failure of the trial court to grant its motion for directed verdict. Such a motion is directed at a determination of the merits and if granted results in dismissal of the complaint with prejudice.\\nThird: Did the trial court err in not granting a directed verdict? Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 39 N. W. (2d) 690, lays down the general rule regarding directed verdicts. The court cited with approval a rule from Smith v. Pabst (1940), 233 Wis. 489, 491, 288 N. W. 780, where it was stated:\\n\\\" 'A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.' \\\" Citing Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N. W. 405.\\nWe have also held in Schumacher v. Klabunde (1963), 19 Wis. (2d) 83, 87, 119 N. W. (2d) 457:\\n\\\" 'In determining whether or not the trial court was in error in directing the verdict this court must take that view of the evidence which is most favorable to the party against whom the verdict is directed.' Mueller v. O'Leary (1935), 216 Wis. 585, 587, 257 N. W. 161.\\\"\\nWe must hold as a matter of law that on the evidence in this case a directed verdict should have been granted to the defendant, since the evidence, even considered in the light most favorable to the plaintiffs, did not give rise to a jury determination of whether or not the storekeeper or his employees had discovered or by the exercise of reasonable care could have discovered that the shoplifter was doing acts or was about to do acts which would threaten bodily harm to other customers.\\nThe plaintiffs and the trial court contend that the jury could find the defendant negligent simply because of the manner in which the employees elected to escort the alleged shoplifter to the rear of the store, one employee in front and the other behind. They were walking down the aisle in a column. The trial court felt that this in and of itself would justify the jury's finding that the defendant was negligent. Along with this, the trial court also opined that the defendant's employees should have had more aid in escorting the man to the rear of the store since neither Erickson nor Young were quite as burly as the alleged shoplifter. But is it not difficult to hold that the defendant was negligent because of the manner in which its employees marched an alleged shoplifter to the rear of the store when they had no reason to believe that he was about to act as he did? Furthermore, it would seem quite proper to have someone in front of the shoplifter in case he tried to escape to the front. As for the number of people, two seems quite sufficient in the absence of knowledge that the shoplifter is vicious. The trial court also felt that Erickson was negligent in bending down to pick up the cigarettes when they fell from the shoplifter's jacket. Erickson picked up the cigarettes (the evidence) which would be needed in case of an eventual arrest of the shoplifter.\\nNone of this evidence establishes that the proprietor knew or by the exercise of reasonable care could have discovered that the shoplifter was going to attempt to break loose and to rush out of the store, bumping into customers that might be in the way.\\nPlaintiffs' contention that in effect the storekeeper and his employees in the exercise of reasonable care could have discovered that these acts threatening bodily security of the other customers were about to be done by the shoplifter, is based on three facts in the record: (1) That he was a Negro, rugged looking, around five feet, 11 inches, and weighed 190-200 pounds; (2) that the shoplifter, when initially returning to the store, tried to keep a counter between Young and Erickson; and (3) that initially, when the shoplifter was apprehended, he stated to Young and Erickson, after he was requested to return to the store, \\\"You people are going to gang up on me.\\\"\\nIn our opinion, none of this evidence, taken either individually or cumulatively, was sufficient to raise a jury question. We, therefore, conclude that as a matter of law the defendant did not know and by the exercise of reasonable care could not have discovered that the violent acts done by the shoplifter were being done or were about to be done so as to give rise to a duty on the part of the defendant to protect its customers from the shoplifter's acts.\\nBy the Court. \\u2014 Judgment reversed, and cause remanded to circuit court for the purpose of dismissing the complaint.\\nRestatement, 2 Torts, p. 953, sec. 348, provides as follows: \\\"348. Public Utility or Possessor of Business Premises; Acts of Third Persons. A public utility or other possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have (a) discovered that such acts were being done or were about to be done, and (b) protected the members of the public by (i) controlling the conduct of the third persons, or (ii) giving a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive from a public utility.\\\" (Emphasis added.)\\n\\\"A motion for a nonsuit is equivalent to a demurrer to the evidence. In passing upon such motion, it is incumbent upon the court to view the evidence in a light most favorable to the plaintiff, and the court must give the plaintiff the benefit of the most favorable inferences that can reasonably be deduced therefrom.\\\" (p. 450.)\"}"

wis/8677097.json

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+"{\"id\": \"8677097\", \"name\": \"Rottman and wife, Appellants, v. Endejan and wife, Respondents\", \"name_abbreviation\": \"Rottman v. Endejan\", \"decision_date\": \"1959-02-03\", \"docket_number\": \"\", \"first_page\": \"221\", \"last_page\": \"230\", \"citations\": \"6 Wis. 2d 221\", \"volume\": \"6\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T18:41:29.058628+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rottman and wife, Appellants, v. Endejan and wife, Respondents.\", \"head_matter\": \"Rottman and wife, Appellants, v. Endejan and wife, Respondents.\\nJanuary 5\\nFebruary 3, 1959.\\nFor the appellants there was a brief by Worthing & Calhoun of Fond du Lac, and oral argument by J. W. Calhoun.\\nFor the respondents there was a brief and oral argument by John J. Schneider of Fond du Lac.\", \"word_count\": \"1565\", \"char_count\": \"8912\", \"text\": \"Currie, J.\\nThe three issues on this appeal are as follows:\\n(1) Is time of the essence of the contract of sale ?\\n(2) Has there been a material breach of the contract by the vendors which justified the purchasers in refusing performance ?\\n(3) Is a tender of possession to the purchasers subsequent to the bakery tenant vacating the premises an essential condition precedent to the vendors maintaining an action for specific performance ?\\nThe law is well settled that time will not be regarded as of the essence unless it is made so by the terms of the contract or the conduct of the parties. Long Investment Co. v. O'Don- nett (1958), 3 Wis. (2d) 291, 297, 88 N. W. (2d) 674, and Zuelke v. Gergo (1951), 258 Wis. 267, 271, 45 N. W. (2d) 690.\\nThe date for the delivery of possession was specified in the contract to be \\\"on or about May 1, 1957.\\\" There is nothing stated in the contract as to what is to happen if the vendors are unable to deliver possession on or about such specified date. Therefore, time was not made of the essence by any provision of the contract itself. This court in Buntrock v. Hoffman (1922), 178 Wis. 5, 13, 189 N. W. 572, held that \\\"time will not be regarded as of the essence of the contract merely because a definite time for performance is stated therein, without any further provision as to the effect of nonperformance at the time stated.\\\"\\nInasmuch as the provisions of the contract did not make time of the essence, did the conduct of the parties do so? There is a complete absence of any testimony relating to the conduct of the parties which would make the closing date of May 1, 1957, of the essence. The defendant purchasers did make an attempt to prove that it was essential for them to occupy the premises by July 1, 1957. The defendant Endejan at the time of entering into the contract was occupying and operating a smaller bakery, and he desired to purchase a larger bakery so as to expand his business by making additional baked goods which he was unable to do in his existing quarters. We quote from the appendix the following testimony by Endejan in which he sought to prove that it was essential that he be in possession of plaintiffs' premises by July 1, 1957:\\n\\\"I have a wholesale bakery business and wanted to give my customers a full line. They asked for sweet rolls, doughnuts, etc. I told them my plans that I had a bakery bought and I would have a full line from the 1st of July on. I had to get a place ready to keep my promise. I committed myself to various customers.\\\"\\nThere is no testimony that Endejan ever communicated to either of the vendors the fact that he had made such commitment to his customers involving the July 1st date. Such unilateral conduct subsequent to the making of the contract cannot qualify as conduct of the parties, which establishes time as the essence of the contract. A further reason why it cannot have such effect is because it relates to a date two months subsequent to the date of performance specified in the contract.\\nA course of action lay open to the purchasers whereby they could have reasonably protected themselves against the contingency of being unable to secure possession by July 1st. This was to have given the vendors notice early in May fixing July 1st as the last date for closing and effecting change of possession, and stating that they would consider the contract rescinded if the sellers failed to perform by such date. None of the letters written by counsel for the purchasers is susceptible of being construed as such a notice. Because the purchasers failed to give any notice fixing a reasonable time for performance subsequent to May 1, 1957, the contract never terminated. Peyer v. Jacobs (1957), 275 Wis. 364, 367, 82 N. W. (2d) 202, and Phillips v. Carver (1898), 99 Wis. 561, 575, 75 N. W. 432. If such a notice had been given, the sellers might have been spurred into such action as paying the tenant a sum to vacate, or using the notice as a ground for the circuit court taking more-prompt action to decide the unlawful-detainer appeal and issue the writ of restitution.\\nWe turn now to the issue of whether the vendors so materially breached the contract as to excuse the purchasers from performing their part of the contract. For the reason just stated, mere failure to turn over possession in the absence of a notice by the purchasers fixing a reasonable time for the same subsequent to May 1, 1957, did not constitute such a breach.\\nThe purchasers urge that they are excused from performing because of the failure of the vendors to secure approval of the industrial commission for use of the premises as a bakery. The contract clause with respect to the time for securing such approval is slightly ambiguous. However, we construe the words \\\"prior approval\\\" to mean prior to the date set for change of possession and payment by the purchasers of the balance of the purchase price. Because the time for such closing is not of the essence, the failure of the vendors to secure such approval did not terminate the contract in the absence of any notice given by the purchasers fixing a dead line for such performance.\\nA deputy building inspector of the industrial commission testified, \\\"At the present time the premises would meet with my approval when certain minor changes are made.\\\" He enumerated such required changes, none of which should take long to complete or entail the expenditure of much money. The trial court did not pass on this issue. Therefore, if on remand of the action, the industrial commission's approval has not yet been obtained, the trial court should by interlocutory order fix a short reasonable time in which the vendors will be permitted to make such required changes and secure the industrial commission's approval of the premises before judgment of specific performance is entered. The case of Haumersen v. Sladky (1936), 220 Wis. 91, 264 N. W. 653, constitutes a precedent for such procedure.\\nThe purchasers also contend that there has been a material breach of the contract by the vendors in failing to remove the oven which the bakery tenant left behind. Such oven is built into the premises and attached to a boiler. While the tenant probably had the right to remove the same as a trade fixture, it ordinarily would constitute part of the realty as between a vendor and purchaser. Therefore, when the tenant vacated without removing the oven it became part of the real estate and lost its character as a trade fixture. There is no provision in the contract requiring the vendors to remove such oven if the tenant abandoned it. Subsequent to the making of the contract the purchasers through the letter of their counsel of April 23, 1958, made it known to the vendors that they desired such oven to be removed when the bakery tenant vacated the premises. The vendor Rottman testified he was willing to remove such oven, but there is no testimony that the vendors ever agreed to do so. The trial court made no finding of fact as to the contract having been modified so as to require removal of such oven by the vendors, and we do not deem that the evidence would sustain a finding that the contract was so modified.\\nThe last point raised by the purchasers, as to why the vendors are not entitled to specific performance, is that there never has been a valid tender of possession by the vendors. We agree with the purchasers' contention that the two attempted tenders of possession, when the vendors' tenant was still occupying the bakery portion of the premises, were ineffectual. There can be no doubt under the wording of the contract, interpreted in the light of the conduct of the parties, that the possession which the vendors were required to tender was one free of the occupancy by such tenant. However, the purchasers' refusal to accept the tender of the abstract and their later demand for the return of the $500 down payment constituted a repudiation of the contract and an anticipatory breach thereof. We deem such repudiation and anticipatory breach by the purchasers made it unnecessary for the vendors to tender possession as a condition precedent to instituting the action for specific performance. Mitchell v. Lewensohn (1947), 251 Wis. 424, 432, 29 N. W. (2d) 748, 752; 81 C. J. S., Specific Performance, p. 619, sec. 100. By the act of serving and filing their complaint seeking specific performance the vendors placed themselves under all the obliga tions of the contract. Asbury v. Cochran (1942), 243 Ala. 281, 283, 9 So. (2d) 887, 888.\\nBy the Court. \\u2014 Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.\"}"

wis/8678244.json

@@ -0,0 +1 @@
+"{\"id\": \"8678244\", \"name\": \"Boyle, Appellant, v. Industrial Commission and others, Respondents\", \"name_abbreviation\": \"Boyle v. Industrial Commission\", \"decision_date\": \"1959-12-01\", \"docket_number\": \"\", \"first_page\": \"601\", \"last_page\": \"605\", \"citations\": \"8 Wis. 2d 601\", \"volume\": \"8\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T23:07:15.317500+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Boyle, Appellant, v. Industrial Commission and others, Respondents.\", \"head_matter\": \"Boyle, Appellant, v. Industrial Commission and others, Respondents.\\nNovember 5\\nDecember 1, 1959.\\nThe cause was submitted for the appellant on the brief of L. A. Tarrell of Milwaukee, and for the respondent Industrial Commission on the brief of John W. Reynolds, attorney general, and Mortimer Levitan and Beatrice Lampert, assistant attorneys general.\", \"word_count\": \"770\", \"char_count\": \"4531\", \"text\": \"Fairchild, J.\\nOn this appeal, we are to determine whether the right of compensation now claimed by appellant is barred by sec. 102.12, Stats. 1949. That section provided in part:\\n\\\"Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred, except that the right to compensation shall not be barred if the employer knew or should have known, within the two-year period, that the employee had sustained or probably would sustain disability.\\\"\\nAs noted in the statement of facts, the examiner and the commission found that Boyle did not file an application until more than two years after the time he knew or ought to have known, the nature of the disability, and its relation to the employment.\\nThe attorney general argues here, as in the circuit court, that since Boyle's claim for compensation is based upon accident rather than upon occupational disease, his claim was barred by failure to file an application within two years after December 12, 1950, the date of the accident, and that inquiry as to when he knew or ought to have known, the nature of the disability and its relation to the employment was unnecessary. The authority cited in support of the proposition that the \\\"knew or ought to have known\\\" test is applicable solely to disability caused by occupational disease, is Zobkowicz v. Industrial Comm. (1953), 264 Wis. 317, 58 N. W. (2d) 677. In that decision, however, the court did not expressly so hold, but stressed the fact that the applicant \\\"knew he had been injured.\\\" The court relied upon Creamery Package Mfg. Co. v. Industrial Comm. (1938), 226 Wis. 429, 277 N. W. 117. In that decision, at page 433, the court stated, \\\"that the applicant knew the nature of his injury immediately upon its happening there cannot be the slightest doubt.\\\" Thus, the previous decisions of this court appear to have recognized that there is a class of injuries resulting from accident as to which the time for filing application runs from the date the applicant knew or ought to have known the nature of the disability, and its relation to the employment.\\nThe case now before us may well fall into this class. It appears that on December 12, 1950, Boyle was driving an automobile in the service of his employer; that he stopped behind a stopped streetcar, and was struck from behind. The car which he was driving was propelled forward into the streetcar. It appears that Boyle's present claim is based upon symptoms which he claims are the manifestations of a whiplash injury sustained at the time of the collision in 1950, but that he was unaware of the existence of any injury (except symptoms of shock and headache) until a considerable time after the event. We conclude that the examiner properly considered the question whether Boyle knew or ought to have known the nature of his disability, and its relation to his employment more than two years prior to the filing of the application.\\nAppellant's brief tells us that the only question involved in this appeal is whether there is sufficient evidence to support the finding of the examiner and commission that in 1953, more than two years before the application, the appellant knew or should have known that the trouble he was having was attributable to the 1950 injury. Appellant has failed, however, to file an appendix, or printed statement of the case, in compliance with Rule 6 of this court, sec. 251.26, Stats. In similar circumstances, in Peterson Cutting Die Co. v. Bach Sales Co. (1955), 269 Wis. 113, 68 N. W. (2d) 804, this court assumed, because of an appellant's failure to file an appendix, or printed statement of the case, that the record supported the findings of fact of the trial court. For the same reasons, we make the same assumption here with respect to the findings of the examiner and commission.\\nBy the Court. \\u2014 -Judgment affirmed.\"}"

wis/8678320.json

@@ -0,0 +1 @@
+"{\"id\": \"8678320\", \"name\": \"Colton, Respondent, vs. Foulkes and others, Appellants\", \"name_abbreviation\": \"Colton v. Foulkes\", \"decision_date\": \"1951-05-08\", \"docket_number\": \"\", \"first_page\": \"142\", \"last_page\": \"148\", \"citations\": \"259 Wis. 142\", \"volume\": \"259\", \"reporter\": \"Wisconsin Reports\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Colton, Respondent, vs. Foulkes and others, Appellants.\", \"head_matter\": \"Colton, Respondent, vs. Foulkes and others, Appellants.\\nApril 3\\nMay 8, 1951.\\nThe cause was submitted for the appellants on the briefs of Lueck, Skupniewitz & Lueck of Beaver Dam, and for the respondent on the briefs of Swan & Strub of Beaver Dam, attorneys, and Martin M. Morrissey of Madison of counsel.\", \"word_count\": \"1630\", \"char_count\": \"9484\", \"text\": \"Fritz, C. J.\\nIn the complaint in each action plaintiff alleged:\\nThat the defendant employer had contracted with plaintiff to make certain repairs of the roof and porch railing on his residence and to furnish all necessary materials and labor for said repairs and do all work in a good and workmanshiplike manner, with due care and skill, and that thereby it became necessary for the employer to replace and repair the porch railing; that in replacing the railing defendants in disregard of the employer's duty to securely fasten the same and use suitable and safe materials, used material and posts which were rotten and unsound, and removed only a portion of said defective parts, and notwithstanding said rotten and defective condition remaining, nailed and spliced the same to sounder materials in making extensions on said parts and that the spliced materials thus made were weakened and unreliable and liable to break and give way and pull apart upon the application of slight pressure or weight, as the defendants knew or in the exercise of due care should have known; and that defendants painted and thereby covered the defective splices and concealed the same and left the railing in a dangerous and unsafe condition; that the railing was designed to protect and keep from falling over the edges all who had occasion to frequent said porch, and that when plaintiff, shortly thereafter had occasion to use said porch and railing, \\u2014 as he was about to sweep an accumulation of leaves and other debris from the eaves troughs attached to the edge of the roof, \\u2014 and leaned against the railing, it gave way due to the above-stated defects in its construction and caused plaintiff to fall to the ground without any fault or negligence on his part.\\nThat defendants knew or should have known that users of said porch would come in contact with said railing and lean against it, or otherwise use it, and that defendants knew or should have known that said defects and weakened condition of said posts were covered with paint and were thereby concealed from such users, including plaintiff; that defendant contractor knew or should have known that the railing on said porch so constructed was dangerous for the use for which it was supplied, and failed to exercise reasonable care to inform the plaintiff of the dangerous condition of said posts and the careless and negligent construction thereof, and that the defendants thereby disregarded their duty when said railing was replaced to put and leave said roof and railing in a reasonably secure and safe condition by so carelessly and negligently fast\\u00e9ning said railing and using such unsuitable and unsafe materials; and that solely by reason of said negligence of defendants, as aforesaid, and as a direct and proximate result thereof plaintiff was injured.\\nThe defendants in demurring to the complaint claim that, it does not state a cause of action in tort; but that plaintiff's cause of action is for breach of contract. In view of the facts as to defendants' negligence which are pleaded, as stated above, it is clearly obvious that plaintiff's intended cause of action is an action in tort. As stated in Weber v. Naas, 212 Wis. 537, 540, 250 N. W. 436,\\u2014\\n\\\"In pleading negligence and in setting forth the facts which are alleged to constitute negligence, the general rule is that only ultimate facts are to be pleaded and it is not good pleading to plead matters of evidence. . If the pleading fairly informs the opposite party of what he is called upon to meet by alleging the specific acts which resulted in injury to the plaintiff, and there is included a general statement that the defendant negligently performed the acts complained of, the pleading is sufficient.1'\\nAlthough as to some of the facts alleged plaintiff had no direct knowledge but stated he has information which he believes to be true, his allegations are sufficient. When such facts are positively alleged on information and belief, and the pleader alleges that he believes them to be true, there are applicable thereto the provisions in sec. 263.25, Stats., and the conclusions stated in Rogers v. Milwaukee, 13 Wis. *610; Morley v. Guild, 13 Wis. *576; Fairbanks v. Isham, 16 Wis. *118, *120; Thauer v. Gaebler, 202 Wis. 296, 232 N. W. 561.\\nIn relation to the duty of the defendant C. Starkweather & Son, Inc., in performing its contract with plaintiff, there is applicable in this action the rule stated in 38 Am. Jur., Negligence, p. 661, sec. 20,\\u2014\\n\\\"Predicating duty upon contract. Ordinarily, a breach of contract is not a tort, but a contract may create the state of things which furnishes the occasion of a tort. The relation which is essential to the existence of the duty to exercise care may arise through an express or implied contract. Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract. In such a case, the contract is mere inducement creating the state of things which furnishes the occasion of the tort. In other words, the contract creates the relation out of which grows the duty to use care. Thus, a person who contracts to make repairs can be held liable for his negligence in doing the work. Although, as a general rule, mere failure to perform a contract cannot serve as the basis of a tort liability for negligence, and there are authorities which state that liability for negligence in the violation of a duty imposed by contract involves misfeasance rather than nonfeasance, the tendency has been to recognize that liability for negligence may be predicated upon a lack of due care in failing to act as well as upon a negligent performance. The sound rule appears to be that where there is a general duty, even though it arises from the relation created by, or from the terms of, a contract, and that duty is violated, either by negligent performance or negligent nonperformance, the breach of the duty may constitute actionable negligence.\\\" See also Restatement, 2 Torts, p. 1030, sec. 385, and comment b, p. 1031; Flint & Walling Mjg. Co. v. Beckett, 167 Ind. 491, 79 N. E. 503, 12 L. R. A. (N. S.) 924; Jackson v. Central Torpedo Co. 117 Okla. 245, 246 Pac. 426, 46 A. L. R. 338; Mobile L. Ins. Co. v. Randall, 74 Ala. 170.\\nThe defendants Foulkes, Hoeppner, and Lange, who were employees of the defendant contractor, contend that as there was no contractual relationship between them and plaintiff, no cause of action accrued in his favor against them even if they had been guilty of nonfeasance or misfeasance. In the complaint against each employee he is alleged to have been negligent in removing only a portion of the rotten and defective porch posts and railing, and then, \\u2014 notwithstanding the rotten and defective condition of the remaining parts thereof, \\u2014 in splicing and nailing such parts so that the spliced parts were weakened and liable to break and pull apart upon application of the slightest pressure or weight; and in painting and thereby concealing the defective splices and leaving the railing in a dangerous and unsafe state. Consequently, if any of the defendants were negligent in that respect they were guilty of either misfeasance or nonfeasance, and therefore the defendants would be liable under the rule stated in Hoeverman v. Feldman, 220 Wis. 557, 560, 563, 265 N. W. 580. We then stated:\\n\\\"The defendant contends that he breached or violated no duty which he as an individual owed to the plaintiff, and that therefore he is not liable to her. It is true that before there can be negligence there must be a breach of duty owing by the person against whom the claim of negligence is made. Dorcey v. Milwaukee E. R. & L. Co. 186 Wis. 590, 203 N. W. 327. But it is the rule of the common law that every person shall use ordinary care not to injure another. Greunke v. North American Airways Co. 201 Wis. 565, 230 N. W. 618.\\n\\\" 'One must take ordinary care toward others, of course, but one must also take care not to do any act or omit any precaution when from the circumstances it would reasonably appear to an ordinarily intelligent and prudent person that such act or omission might probably cause an injury to somebody.' Hamus v. Weber, 199 Wis. 320, 325, 226 N. W. 392. . . .\\n\\\". . . Negligence exists when one has violated a duty which he owes to another whether the character of the act be positive or negative. In our opinion, the rule laid down in the Greenberg Case, supra, to the effect that an agent or servant is not responsible to third persons for his nonfeasance, but is responsible to third persons for his misfeasance, is not \\u2022sound. In the above-mentioned note (20 A. L. R. 97) the general rule is stated thus:\\n\\\" 'An agent who violates a duty which he owes to a third person is answerable to such person for the consequences, whether it be an act of malfeasance, misfeasance, or nonfea-sance/ \\\" See also Restatement, 2 Agency, p. 769, sec. 350, and comment c, p. 771; 35 Am. Jur., Master and Servant, pp. 1019-1027, secs. 584-590.\\nBy the Court.- \\u2014 Orders affirmed in each case.\"}"

wis/8679055.json

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+"{\"id\": \"8679055\", \"name\": \"Winston and another, Plaintiffs and Respondents, vs. Weiner, Defendant and Appellant: Baldwin and another, Defendants and Respondents\", \"name_abbreviation\": \"Winston v. Weiner\", \"decision_date\": \"1958-01-07\", \"docket_number\": \"\", \"first_page\": \"584\", \"last_page\": \"596\", \"citations\": \"2 Wis. 2d 584\", \"volume\": \"2\", \"reporter\": \"Wisconsin Reports Second\", \"court\": \"Wisconsin Supreme Court\", \"jurisdiction\": \"Wisconsin\", \"last_updated\": \"2021-08-10T23:15:29.549853+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Winston and another, Plaintiffs and Respondents, vs. Weiner, Defendant and Appellant: Baldwin and another, Defendants and Respondents.\", \"head_matter\": \"Winston and another, Plaintiffs and Respondents, vs. Weiner, Defendant and Appellant: Baldwin and another, Defendants and Respondents.\\nDecember 4, 1957\\nJanuary 7, 1958.\\nFor the appellant there were briefs by Heft & Coates of Racine, and oral argument by Carroll R. Heft.\\nFor the respondents Winston there was a brief by R. Stanley Kelly of Burlington, attorney, and Cavanagh, Mittel-staed, Sheldon, Heide & Hartley of Kenosha of counsel, and oral argument by William A. Sheldon.\\nFor the respondents Marion Baldwin and Travelers Indemnity Company there was a brief by Godfrey & Godfrey of Elkhorn, and oral argument by Thomas G. Godfrey.\", \"word_count\": \"1914\", \"char_count\": \"11156\", \"text\": \"Fairchild, J.\\n1. Appellant asserts that the trial court erred in failing to submit the question of negligence of defendant Baldwin as to lookout. The court did submit a question as to her negligence with respect to failing to pass Weiner to the right giving him at least one half of the main-traveled portion of the roadway, and a question with respect to management and control. Both questions were answered \\\"No\\\" by the jury. The record shows that when the form of the special verdict was discussed by court and counsel, appellant's counsel urged submission of the issue of speed but assumed that there would be no question as to lookout. On motions after verdict, the only two grounds for new trial which could be material on this point were failure to include the issue of speed and failure to include \\\"the questions proposed upon the trial by this defendant, to which exceptions were preserved.\\\" The decision of the court on motions after verdict indicates that the only questions raised as to defendant Baldwin's negligence were whether she was negligent as to management and control as a matter of law and whether the court erred in failing to submit the issue of speed. Appellant does not urge these points on appeal.\\nAppellant cannot, as a matter of right, claim on appeal that the court erred in failing to submit the issue of lookout. Zoellner v. Kaiser (1941), 237 Wis. 299, 296 N. W. 611. In Wells v. Dawyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380, it was said, \\\"We deem the correct rule to be that no error of the court should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial.\\\"\\nAppellant recognizes this rule, but asserts that he should not be bound by it in this instance because the law as announced by this court prior to the trial would have made the submission of the issue of lookout improper and that rule was changed by a decision of this court rendered after the trial and decision on motions after verdict although prior to the entry of judgment herein. In Vogel v. Vetting (1953), 265 Wis. 19, 60 N. W. (2d) 399, the court considered a collision in which each driver suffered amnesia. The court applied the presumption of due care and at page 24 stated, \\\"Therefore, we must presume that each driver looked and saw the other car which was in clear view. There is nothing in the record upon which there could be a finding that either driver was negligent as to lookout.\\\" The court further held that the facts would support an inference that each driver was negligent with respect to management and control. Shortly after the Vogel decision this court decided the case of Weber v. Mayer (1954), 266 Wis. 241, 63 N. W. (2d) 318. There the driver, who was killed, stopped for an arterial and then proceeded and was hit by a truck which must have been in plain sight when he entered the intersection. It was held that a jury finding of negligence as to lookout was sustained by reasonable inference. Thus the Weber decision suggested at least that a driver entitled to the presumption of due care by reason of death or amnesia might be found guilty of negligence as to lookout if he behaved as if he did not see. Wells v. Dairyland Mut. Ins. Co., supra, was decided January 7, 1957. It expressly overruled Vogel v. Vetting and stated a rule as follows, page 512: \\\"In cases involving a driver, who is unable to testify as to the lookout he maintained immediately prior to a collision because of death or amnesia, he ordinarily cannot be found guilty of causal negligence as to both lookout and management and control. If there is no evidence from which it can reasonably be inferred that he saw the object collided with, then his negligence consists of lookout and not management and control. . . . On the other hand, if there is evidence indicating that such operator did see the object collided with prior to the accident, his negligence lies in the field of management and control, and not lookout.\\\" This rule is based on the proposition that in these cases, \\\"the mere happening of the accident supports a finding of either causal negligence as to lookout or management and control, but not both.\\\"\\nGranting that appellant's counsel might have made a request that a question be submitted as to Miss Baldwin's lookout and the court complied had the Wells decision been available, we have examined the record and the verdict to determine whether the interests of justice require a new trial. We think not.\\nThe crucial issue was whether Mr. Weiner, Miss Baldwin, or both failed in their duty to pass to the right. Evidently Weiner's car left his proper lane and crossed in front of the Baldwin car. Only if Miss Baldwin were driving on the wrong side could his conduct be explained as a result of her negligence. The jury decided that Weiner was on the wrong side and Baldwin not. Its finding is not challenged. With that issue resolved, virtually the only remaining issue was whether Weiner's deviation was apparent long enough before the collision so that Miss Baldwin could have done something to avoid it. If there was no opportunity to do anything effective, her failure to change speed or course could not be evidence of causal negligence as to lookout.\\nThere was little evidence that there was any substantial distance separating the cars when Mr. Weiner's deviation first became apparent. It consisted of Mrs. Ellsworth's testimony that he came to the wrong side slowly and gradually and Miss Bonnett's statement that she saw him weaving. The jury was instructed on one's right to assume proper conduct by other travelers until the contrary becomes apparent, the duty to make all reasonable effort to avoid collision after the contrary becomes apparent, and the emergency doctrine. We have no doubt but that, under the circumstances and the instructions given, the jury's finding of no negligence as to management and control was based on a determination that there was not enough time for Miss Baldwin to have done anything effective.\\n2. Appellant urges that the trial court erred in holding as a matter of law that Mr. Weiner was negligent as to lookout. There were apparent inconsistencies in Mr. Weiner's testimony. Some of his answers were either intentionally evasive or, as suggested by his counsel, may have been caused by lack of thorough understanding of English. He may have remembered what happened, given correct testimony when he said he did not see the Baldwin car, and given false or inaccurate testimony when he said he did not remember. On the other hand, he may not have remembered because of injuries sustained, or may have fallen asleep before the collision. Even if he truthfully did not remember, the possibility that he was in fact attentive seems remote. We are inclined to believe, however, that questions of interpretation, credibility, and weight of his testimony needed to be resolved and should have been left to the jury. If the court erred in this respect, the error was not prejudicial. Unless Miss Baldwin were found negligent in some respect, there would be no occasion for comparison, nor right to contribution, and it is immaterial whether Mr. Weiner was negligent in one, two, or three respects.\\n3. Finally appellant asserts that the damages awarded to Mrs. Winston were grossly excessive and reflected bias, passion, and perversity.\\nShe was allowed $4,000 for loss of earnings from the collision to the trial. This was slightly more than two years. Her salary of $6,000, briefly enjoyed before the collision, would not be conclusive, but could be accepted as a measure of her earning capacity. If so, she could have earned $12,000 between the collision and the trial. She apparently earned (after February, 1956) some $3,600, leaving a difference of $8,400. Appellant claims that she should have accepted the position offered her in May, 1955, in order to minimize damages. Had she done so, she would have earned an additional $2,925, leaving a difference of $5,475, which is more than the jury did award. Mrs. Winston testified she did not accept the job in May, 1955, because the injuries to her face made her reluctant to appear in public. This was several months before plastic surgery was performed. Whether the reluctance was so natural, substantial, and compelling as to amount to disability was a jury question, but, as above demonstrated, the record supports the award even if her injuries did not prevent her acceptance of that position.\\nMrs. Winston was awarded $23,000 for personal injuries. This award is to compensate her for the shocking experience of the collision itself, the concussion, and the pain and suffering, during the healing period, caused by the injuries detailed in the statement of facts. It must cover the loss of two teeth, the slight deformity in the collarbone, and the involvement of the nerve which causes twitching of the eyelid and mouth. The major portion of this award is to compensate her for cuts in her face, also described in the statement of facts. These not only caused pain and suffering immediately after the accident and at the time of plastic surgery, but will do so again at the time of further surgery. Doubtless the scars caused even greater humiliation in the early months than at the time of trial when they had faded to a permanent color. The jury saw her at the trial. From the portrait photograph taken before she was injured, the photographs taken a few days afterward, and those taken more than a year later, we conclude that the jury could find that a drastic change has occurred in her face, sufficient to cause her real unhappiness throughout her life. This is true even though the scars have healed and can be improved by further surgery. Mrs. Winston testified to her self-consciousness about her face and the doctors corroborated her testimony.\\nThere was evidence from which the jury could conclude that her injuries impair her capacity to earn in the future. The difference between the $6,000 she had begun to earn before the injuries and the $5,000 she was earning at the time of trial is not an exact measure of the impairment, but it does tend to support a substantial allowance.\\nIn deciding motions after verdict, the trial court said, \\\"The court believes that the damages awarded by the jury are not only not shocking but are in the realm of fairness.\\\" We agree.\\nBy the Court.- \\u2014 Judgments affirmed.\"}"