author: LUNDSTEN, PJ. DYKMAN, J.

text:
    In re the Matter of: Madison Community Foundation: League of Women Voters, Appellant, v. Madison Community Foundation, Respondent.
    Court of Appeals

      No. 2004AP2036.

      Submitted on briefs January 13, 2005.

      —Decided October 13, 2005.

    2005 WI App 239
    (Also reported in 707 N.W.2d 285.)

      On behalf of the appellant, the cause was submitted on the briefs of James A. Jaeger and Maureen A. Lokrantz of Hill, Glowacki, Jaeger & Hughes, LLP, Madison.
    On behalf of the respondent, the cause was submitted on the brief of Marie A. Stanton and Andrew W. Erlandson oí Hurley, Burish & Milliken, S.C., Madison.
    Before Lundsten, RJ., Dykman and Deininger, JJ.
   LUNDSTEN, PJ.

¶ 1. The League of Women Voters appeals an order of the circuit court approving a petition by the Madison Community Foundation to amend its charitable trust instrument. The League argues that the circuit court erred when it determined that Wis. Stat. § 701.10(2)(b) (2003-04) is not applicable to the Foundation's request for circuit court approval of a change to an administrative trust provision. In the alternative, the League argues that if § 701.10(2)(b) does not apply, the circuit court erred in approving the proposed trust amendment because the Foundation failed to meet its burden of proof under the applicable trust provision. We disagree and affirm the circuit court.

Background

¶ 2. The Madison Community Foundation is a charitable trust. The Foundation is governed by a fifteen-member Board of Governors. Prior to this proceeding, eight members of the Board were designated by appointing authorities. The League of Women Voters was one such appointing authority. The remaining seven members of the Board were "at-large" members. At-large members are appointed by existing Board members.

¶ 3. Article XI of the trust instrument provides a procedure for amending administrative provisions of the trust. In 2002, the Board used the procedure in Article XI to amend the trust instrument. The Board voted to amend the trust to eliminate the League as an appointing authority and replace that vacancy with an at-large member. The amendment required a two-thirds vote, and it passed by a vote of fourteen to one. Pursuant to Article 'XI of the trust instrument, the Board provided notice to the Attorney General and filed a petition seeking court approval with the Dane County Circuit Court. In that petition, the Foundation proffered the following reason for the amendment:

After study and discussion, the Board of Governors of the Madison Community Foundation determined, in the exercise of its reasonable judgment, that making the seat on its Board of Governors which is currently filled by an appointment by the League of Women Voters of Dane County into an At-Large position would allow the Foundation to more effectively carry out its charitable purposes by providing it with the flexibility to meet the evolving needs of the community as those need[s] change over time and to try to ensure that the Board continues to have a broad community wide perspective. It also would allow the Foundation to be more flexible in addressing the organization's needs for Board expertise in various areas. Having more At Large positions would allow the Board to review the strengths and weakness [es] of the appointed members and to fill in gaps, as needed. The Board noted that the League of Women Voters of Dane County has a relatively small membership and an even smaller number of active members.

¶ 4. The League objected to the amendment, raising the same arguments that it makes on appeal. The circuit court rejected the League's arguments and approved the amendment. In particular, the circuit court rejected the League's contention that Wis. Stat. § 701.10(2) (b) applied to a review of the Foundation's petition. The court determined that it must review the Board's action under the standard articulated in Filzen v. Headley, 252 Wis. 322, 31 N.W.2d 520 (1948), namely, that discretion exercised by trustees must be upheld "[s]o long as trustees act in good faith and from proper motives and within the bounds of a reasonable judgment under the terms and conditions of the trust." Id. at 326. Using that standard, the circuit court concluded that the Foundation had not abused its discretion in amending the trust instrument, and ordered that the petition for amendment be approved. It is from that order that the League appeals.

Discussion

Applicability of Wis. Stat. § 701.10(2)(b)

¶ 5. The Foundation is a "charitable trust" within the meaning of Wis. Stat. § 701.01(2). This fact brings into play the possibility that an amendment to an administrative provision of the trust instrument is controlled by Wis. Stat. § 701.10(2)(b).

¶ 6. Trust instruments have two types of provisions: "dispositive provisions" and "administrative provisions." Dispositive provisions may name beneficiaries, determine the amount or size of the financial benefits the beneficiaries will receive, and state the purpose of the trust. Administrative provisions govern how the trust is managed to accomplish its purpose. See George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 561, at 225-26 (rev. 2d ed. 1980). Wisconsin Stat. § 701.10(2)(b) authorizes courts to modify administrative provisions of charitable trust instruments under certain circumstances. That statute provides:

If any administrative provision of a charitable trust or part of a plan set forth by the settlor to achieve the settlor's charitable purpose is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision or plan will enable the trustee to achieve more effectively the basic charitable purpose, the court may by appropriate order modify the provision or plan.

The League argues that this statute applies to the proposed trust amendment in this case because the statute applies to all amendments to administrative provisions of charitable trust instruments. In the League's view, the statute clearly states that a court may only approve a trust amendment to an administrative provision when that provision, in the words of the statute, "is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision . .. will enable the trustee to achieve more effectively the basic charitable purpose." The League argues that the circuit court erred when it concluded that § 701.10(2) (b) does not apply to the Foundation's request for approval of an administrative change to the trust instrument. We disagree. Section 701.10(2)(b) does not apply to the Foundation's request for court approval of an amendment to the trust.

¶ 7. We agree with the Foundation that the flaw in the League's argument stems from the League's failure to acknowledge the difference between (1) a statute that authorizes a court to order modification and (2) a specific trust provision that provides a mechanism for altering the trust. Nothing in the text of Wis. Stat. § 701.10(2)(b) suggests that it overrides the provisions of a trust. Simply put, if a trust instrument provides a specified procedure for altering administrative provisions of the trust, there is no reason to suppose the legislature intended that § 701.10(2)(b) be used to override such a procedure.

¶ 8. In this case, the trust instrument provides a procedure for altering the administrative provisions of the trust. Article XI provides:

This Trust Agreement may be amended or modified from time to time with the approval of the Circuit Court for Dane County, Wisconsin, and upon notice to the Attorney General for the State of Wisconsin by the affirmative vote of two-thirds of all persons then constituting the Board of Governors of the Foundation at a meeting of the Board or by unanimous written action without a meeting whenever necessary or advisable for the more convenient or efficient administration of the Foundation, or to enable the Board of Governors to carry out the purpose of the Foundation more effectively, but no such amendment or modification shall alter the purpose stated in the Trust Agreement that this Foundation be operated exclusively for charitable purposes.

The functioning of this provision is fundamentally different than that set out in Wis. Stat. § 701.10(2)(b). The plain language of the statute authorizes circuit courts to modify administrative trust provisions by order. Courts may order such a modification where an administrative provision "is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision or plan will enable the trustee to achieve more effectively the basic charitable purpose." Wis. Stat. § 701.10(2)(b).

¶ 9. In contrast, Article XI contemplates judicial approval of board-adopted amendments. It presents the court with a yes or no decision: either approve the amendment or reject it. Article XI authorizes the Board to proactively adopt amendments the Board deems "necessary or advisable for the more convenient or efficient administration" of the trust, subject to circuit court approval. This standard is less demanding than the one found in Wis. Stat. § 701.10(2) (b).

¶ 10. Further, we see no conflict between the statute and the trust provision in this case. Neither the League nor the Foundation asked the circuit court to exercise its power under Wis. Stat. § 701.10(2)(b) to fix a flawed trust. Rather, the Foundation asked the circuit court to "approve" an amendment it had adopted under the procedure specified in the trust itself.

¶ 11. The League relies on Oshkosh Foundation v. First Wisconsin National Bank of Oshkosh, 61 Wis. 2d 432, 438-39, 213 N.W.2d 54 (1973), to support its proposition that Wis. Stat. § 701.10(2)(b) is the sole avenue for modifications of trust instruments. That reliance is misplaced. In Oshkosh Foundation, an amendment to an administrative provision governing the composition of a foundation's board was sought under the doctrine of equitable deviation, a doctrine similar in function and purpose to § 701.10(2)(b). See Oshkosh Foundation, 61 Wis. 2d at 438-41. Unlike here, the Oshkosh Foundation court did not address whether such an amendment was authorized by the trust instrument itself. Obviously then, the Oshkosh Foundation decision did not address whether either the equitable deviation doctrine, or § 701.10(2)(b), overrides a trust provision like the one at issue here. Accordingly, we find no guidance in Oshkosh Foundation.

¶ 12. The Foundation seeks to amend the trust under the trust's grant of power to the Board to make such amendments. The Foundation does not seek to invoke the court's power to order a change in the trust's administrative provisions. We agree with the circuit court that Wis. Stat. § 701.10(2)(b) is not applicable.

The Proper Interpretation and Application of Article XI of the Trust Instrument

¶ 13. The League argues that if Wis. Stat. § 701.10(2)(b) does not apply, the Foundation still failed to meet the burden imposed by Article XI of the trust. The League asserts: "Although [the Foundation] may have obtained a two-thirds vote, it must still prove [to the circuit court] that the addition of an at-large member in place of the League as an appointing authority" meets the standard for an amendment set forth in Article XI. The League, however, provides no analysis to back up this assertion. As further explained below, we will not attempt to fill this vacuum, especially because the validity of the League's assertion is far from apparent.

¶ 14. The threshold issue is not whether the amendment must meet the standard set forth in Article XI. Obviously it must. A proper amendment to an administrative provision under the trust terms must, in the words of Article XI, be "necessary or advisable for the more convenient or efficient administration of the Foundation, or [it must] enable the Board of Governors to carry out the purpose of the Foundation more effectively." Rather, the threshold issue is the proper interpretation of the Article XI phrase, "with the approval of the [court]." That is, what sort of "approval" role does the trust contemplate for the court?

¶ 15. Trust instruments are construed using the same principles of construction as wills. Uihlein v. Uihlein, 11 Wis. 2d 219, 225, 105 N.W.2d 351 (1960). In essence, the task is to ascertain the intent of the donor. Id.

¶ 16. Under Article XI, is the court's "approval" role limited to determining whether the Board acted in good faith and with proper motives, as argued by the Foundation? Does that approval role include placing an evidentiary burden of proof on the Board? If so, what triggers that evidentiary burden of proof?

¶ 17. Suppose in this case that no one had challenged the proposed amendment. Would an evidentiary hearing have been required? Or, could the circuit court have relied solely on the rationale expressed in the Foundation's petition in providing approval? Is the need for an evidentiary hearing triggered if any interested party with standing objects? And, if an evidentiary hearing is held, who has the burden? Does an objecting party have some sort of initial burden of showing that the proffered reason is inadequate? The League's assertions raise all of these questions, but the League fails to address any of them.

¶ 18. We acknowledge that the League makes some arguments suggesting that the amendment does not meet the Article XI standard required for a change. For example, the League argues that the change will alter the Board in a manner that reduces the diversity of community interests represented on the Board, thus undercutting the effectiveness of the Foundation in carrying out the trust's purpose. But the League fails to present developed argument regarding how the circuit court should have gone about reviewing a proposed amendment under the Article XI standard.

¶ 19. The League is the appellant in this case and, as such, it must present developed arguments if it desires this court to address them. In the absence of a developed argument, we decline to decide the meaning of "approval" in Article XI of the trust instrument. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Accordingly, we affirm the circuit court.

By the Court. — Order affirmed.

DYKMAN, J.

¶ 20. (dissenting). The majority has concluded that persons who do not like the effect of a statute can agree to disregard it, with the expectation that a court will support their decision. I conclude otherwise. The legislature is entitled to make rules which govern an array of subjects, with the expectation that courts will uphold those rules. Here, the question is the effect of Wis. Stat. § 701.10(2)(b) (2003 — 04), which governs the administrative provisions of Wisconsin charitable trusts. The statute provides:

If any administrative provision of a charitable trust or part of a plan set forth by the settlor to achieve the settlor's charitable purpose is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision or plan will enable the trustee to achieve more effectively the basic charitable purpose, the court may by appropriate order modify the provision or plan.

¶ 21. The statute does not conclude with: "Nothing in this section shall prevent modification of a charitable trust pursuant to its terms." More on that later.

¶ 22. The majority sums up its decision in two sentences:

Nothing in the text of Wis. Stat. § 701.10(2)(b) suggests that it overrides the provisions of a trust. Simply put, if a trust instrument provides a specified procedure for altering administrative provisions of the trust, there is no reason to suppose the legislature intended that § 701.10(2) (b) he used to override such a procedure.

Majority, ¶ 7.

¶ 23. The majority has turned statutory construction on its head. A statute means what it says. Statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Wisconsin Stat. § 701.10(2)(b) permits a court, not the parties, to modify a charitable trust provision or plan. The majority does not explain how it transforms the words "the court" into the words "the Board of Governors." But that is how the majority has amended the statute.

¶ 24. Kalal also tells us:

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.

Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 25. Wisconsin Stat. Ch. 701 is entitled "Trusts." Wisconsin Stat. § 701.12 is a closely related section to Wis. Stat. § 701.10(2)(b), and deals with revocation, modification and termination of trusts with the consent of the settlor. The legislature must have been aware that some trusts contain provisions for revocation, modification or termination within the trust itself, for it provided in § 701.12(3): "Nothing in this section shall prevent revocation, modification or termination of a trust pursuant to its terms or otherwise in accordance with law."

¶ 26. There is nothing like Wis. Stat. § 701.12 in Wis. Stat. § 701.10, which sets out the rules for charitable trusts. The legislature could have permitted charitable trusts to modify their administrative provisions by a provision to that effect in the trust. But it did not. To me, this is hardly accidental, or a drafting glitch.

¶ 27. The legislature is wary of charitable trusts. These trusts are given tax benefits, and often use other people's money to achieve the settlor's designs. The potential for scams exists. So, unlike provisions for other trusts, those for charitable trusts contain a requirement that in a proceeding affecting a charitable trust, notice must be given to the attorney general. Wis. Stat. § 701.10(3) (b). This legislative concern is also exhibited in § 701.10(2) (b), where the power to modify an administrative provision of a charitable trust is given to the court, without a word about the trust's provisions for modification. My conclusion is that the legislature knowingly required charitable trusts to obtain a court order to modify the trust's administrative provisions.

¶ 28. We examined a conflict between a statute and a charitable trust provision in Weinberger v. Bowen, 2000 WI App 264, 240 Wis. 2d 55, 622 N.W.2d 471. There, the situation was reversed. The charitable trust provision prohibited altering, amending or modifying the trust. Wisconsin Stat. § 701.12 authorized the sett-lor and all beneficiaries of a trust to revoke, modify or terminate the trust.

¶ 29. Using the reasoning the majority here uses, one would expect that in 'Weinberger, we would have held that the terms of the charitable trust trumped the statute. But that is not what we did. We said: "We agree with the circuit court's holding that Wis. Stat. § 701.12(1) clearly and unambiguously allows for the revocation, modification or termination of a trust upon the written consent of the settlor and all the trust beneficiaries." Weinberger, 240 Wis. 2d 55, ¶ 11. Were I to write a majority opinion here, I would use much the same language. I would say: "We agree with Judge Bartell's conclusion that Wis. Stat. § 701.10(2)(b) clearly and unambiguously permits the circuit court and only the circuit court to modify the Foundation trust's administrative provisions." But I am not writing a majority opinion. I therefore respectfully dissent.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The Madison Community Foundation was originally established as the Madison Community Trust Fund in 1942. In 1977, the trust provision at issue here was adopted. Neither the League nor the Foundation suggests that these facts matter for purposes of this appeal.

       The Attorney General objected to the amendment and participated before the circuit court, but has opted not to participate in this appeal.

       We use the term "equitable deviation" in this opinion, but point out that Oshkosh Foundation v. First Wisconsin National Bank of Oshkosh, 61 Wis. 2d 432, 213 N.W.2d 54 (1973), indicates that the doctrine goes by two names: "equitable deviation" and "equitable approximation." Id. at 438.

       We note that both the League and the Foundation assume that the court in Oshkosh Foundation is accurate when it states that Wis. Stat. § 701.10(2)(b) "embod[ies] the common-law concept" of "equitable deviation." Oshkosh Foundation, 61 Wis. 2d at 438-39. We question the accuracy of this statement because the statutory standard appears to be different than the equitable deviation standard articulated by the Oshkosh Foundation court.
      The statutory standard in Wis. Stat. § 701.10(2)(b) confers on courts the authority to order a modification to an administrative provision of a charitable trust when the provision "is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision .. . will enable the trustee to achieve more effectively the basic charitable purpose." In contrast, the equitable deviation doctrine seemingly confers more limited power. According to Oshkosh Foundation, the equitable deviation doctrine only permits a court to order a change to an administrative provision "where there is a conflict between a dispositive provision and an administrative direction." Oshkosh Foundation, 61 Wis. 2d at 441. "Where there is no conflict, the ... deviation doctrine is not available to vary the details of administration which the trust prescribes." Id. Thus, § 701.10 (2) (b) permits a court to act when an administrative provision becomes "inconvenient or undesirable" and the change will enable the "more effective[]" achievement of the charitable purpose. In contrast, under the equitable deviation doctrine, a court may not act unless there is a conflict between an existing administrative provision and the trust's purpose.
      The facts in Oshkosh Foundation make clear that the then newly enacted statute, Wis. Stat. § 701.10(2)(b), did not apply to the case at hand because its enactment postdated the trial court's action. See Oshkosh Foundation, 61 Wis. 2d at 438-39. The supreme court commented in passing that § 701.10(2)(b) embodied the equitable deviation doctrine, but the court did not purport to apply the statute and was instead plainly applying the equitable deviation doctrine itself to the facts at hand. See Oshkosh Foundation, 61 Wis. 2d at 438-41. Therefore, any suggestion by the supreme court that § 701.10(2)(b) contains the same standard as the common law doctrine of equitable deviation is dictum. See State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) ("Dicta is a statement or language expressed in a court's opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it."). Of course, this footnote is itself dictum, but we include it in the hope that it will assist future litigants.

       The Foundation argues that the circuit court correctly applied the common law standard found in Filzen v. Headley,
        252 Wis. 322, 31 N.W.2d 520 (1948), used for review of trustee actions. Under this standard, "[s]o long as trustees act in good faith and from proper motives and within the bounds of a reasonable judgment under the terms and conditions of the trust, the court has no right to interfere" with discretionary decisions. Id. at 326. The Foundation focuses on the "good faith" and "proper motives" portion of this test. The Foundation says little about the application of that part of the test requiring "reasonable judgment under the terms and conditions of the trust." Also, the Foundation does not explain why we should conclude that the trust contemplates the common law standard when it includes the phrase "with the approval of the [court]."

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Judge Bartell was originally assigned this case, but re-cused herself midway in the case. Prior to her recusal, she had concluded: "[T]he standards set forth in § 701.10(2)(b), Stats., apply to this court as it considers whether to grant approval to the amendment to the Trust Agreement as requested by the [Foundation]."


source: Caselaw Access Project

author: DEININGER, J. VERGERONT, J.

license: Public Domain

text:
    Steven J. Albrechtsen, Petitioner-Appellant, v. Wisconsin Department of Workforce Development and Board of Regents of the University of Wisconsin System, Respondents-Respondents.
    Court of Appeals

      No. 2004AP2130.

      Submitted on briefs February 10, 2005.

      —October 13, 2005.

    2005 WI App 241
    (Also reported in 708 N.W.2d 1.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of David E. Lasker of Lasker & Edwards, L.L.C., Madison.
    On behalf of the respondents-respondents, the cause was submitted on the briefs of David C. Rice and Richard Briles Moriarty, assistant attorneys general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Vergeront and Deininger, JJ.

       Petition to review denied 12-14-05.

   DEININGER, J.

¶ 1. Steven Albrechtsen, a University of Wisconsin employee, appeals a circuit court order that affirmed a decision of the Wisconsin Personnel Commission. The Commission concluded that, when Albrechtsen commenced an action in federal court alleging a violation of Wis. Stat. § 230.83(1) (2003-04) (prohibiting retaliation for "whistleblow-ing"), it lost jurisdiction over his earlier complaint to the Commission alleging the same violation. Albrecht-sen claims the Commission erred in so concluding, or, alternatively, that the University either waived its jurisdictional argument or should be estopped from raising it. He also asserts a due process violation and contends the Commission should have allowed him to proceed on an amended complaint. We reject Albrechtsen's contentions and affirm the Commission's ruling.

BACKGROUND

¶ 2. Wisconsin Stat. ch. 230 provides protections for state employees who engage in "whistleblowing," which is the disclosure of "information gained by the employee which the employee reasonably believes demonstrates . . .[a] violation of any state or federal law, rule or regulation . . .[or] [mjismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety." Wis. Stat. §§ 230.80(5), 230.81(1). Specifically, a state employing unit may not "initiate or administer, or threaten to initiate or administer, any retaliatory action against an employee" who "lawfully disclosed information ... or filed a complaint" alleging a violation of the whistleblower statutes. Wis. Stat. §§ 230.83(1), 230.80(8)(a). "Retaliatory action" means the taking of "disciplinary action" against the employee, § 230.80(8), and "disciplinary action," in turn, means

any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following:
(a) Dismissal, demotion, transfer, removal of any duty assigned to the employee's position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay.
(b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action.
(c) Reassignment.
(d) Failure to increase base pay, except with respect to the determination of a discretionary performance award.

Section 230.80(2).

¶ 3. Albrechtsen filed a complaint with the Personnel Commission in May 1998 alleging that University officials had retaliated against him for activities protected by the whistleblower law. As we describe below, the Commission never reached the merits of Albrechtsen's complaint but dismissed it on jurisdictional grounds. The factual findings in its decision and order deal largely with the procedural history of the administrative proceeding, and Albrechtsen does not dispute the Commission's findings. The following paragraphs summarize the Commission's findings of fact.

¶ 4. Albrechtsen amended his complaint in August 1998 to add allegations of acts of discrimination prohibited by the Wisconsin Fair Employment Act. A Commission investigator found probable cause on some but not all of Albrechtsen's allegations. Albrechtsen, however, informed the Commission in April 2000 that he intended "to pursue his claims in a court of competent jurisdiction rather than" before the Commission. He asked that the Commission proceedings be stayed. On October 5, 2000, Albrechtsen filed a federal lawsuit asserting violations of his rights under federal civil rights statutes, as well as his state whistleblower law claims. According to the Commission, the "underlying facts concerning complainant's whistleblower claim filed in federal court were the same as the underlying facts concerning complainant's whistleblower complaint" filed with the Commission.

¶ 5. The University advised the Commission by letter dated November 20, 2000, that it did not object to the Commission "holding this matter in abeyance pending the disposition of complainant's" federal lawsuit. Ten days later, the Commission advised the parties that, there being no objection, Albrechtsen's request to hold the administrative proceeding "in abeyance" pending the disposition of the litigation in federal court was granted.

¶ 6. The University moved the federal court in April 2001 to dismiss Albrechtsen's state-law whistle-blower claims on the grounds that the administrative proceeding before the Commission was the exclusive means of pursuing violations of Wis. Stat. §§ 230.80 through 230.89. Albrechtsen responded to the motion by acknowledging "that his claims ... for unlawful discrimination and retaliation for his whistleblowing are not within the jurisdiction of this court." Albrechtsen further noted that his whistleblower claims were "currently pending" before the Commission, but were being held in abeyance, and he asked the federal court to dismiss those claims without prejudice. The court, on the basis of the University's arguments and Albrechtsen's "concessions," dismissed the whistleblower claims without prejudice.

¶ 7. In August 2002, Albrechtsen advised the Commission and the University that he wished to resume the adjudication of his whistleblower claims before the Commission. The University responded in September 2002 with a motion to dismiss for lack of jurisdiction. The Commission concluded that, although it initially had subject matter jurisdiction over Albrechtsen's complaint pursuant to Wis. Stat. § 230.85(1), its "subject matter jurisdiction has been nullified by the operation of [Wis. Stat. §] 230.88(2)(c)" after Albrechtsen filed his federal lawsuit alleging violations of § 230.83(1). Accordingly, the Commission dismissed the case and Albrechtsen sought judicial review in the Dane County Circuit Court. The circuit court affirmed the Commission's decision and Albrechtsen appeals.

ANALYSIS

¶ 8. Our review is of the Commission's decision, not the circuit court's order affirming it. See Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993). The threshold question in this appeal, as in many involving the review of agency determinations, is what level of deference, if any, are we to accord the Commission's interpretation and application of Wis. Stat. § 230.88(2)(c)? The parties agree that our review is de novo because the decision under review addresses the Commission's subject matter jurisdiction, a topic on which we owe the Commission's decision no deference. We concur and proceed to consider de novo whether the Commission lost jurisdiction over Albrechtsen's complaint when he filed a federal lawsuit alleging a violation of the Wisconsin whistleblower statutes. See Wisconsin Bell, Inc. v. Public Serv. Comm'n, 2004 WI App 223, ¶ 15, 277 Wis. 2d 729, 691 N.W.2d 697 ("Where an agency's decision involves the nature and scope of its own authority and jurisdiction, a question of law, we review its decision de novo.").

¶ 9. Wisconsin Stat. § 230.88(2)(c) provides that, "[n]o later than 10 days before the specified time of hearing" on a whistleblower complaint under Wis. Stat. § 230.85,

an employee shall notify the [Commission (now the "division of equal rights,” see footnote 1)] orally or in writing if he or she has commenced or will commence an action in a court of record alleging matters prohibited under s. 230.83(1). If the employee does not substantially comply with this requirement, the division of equal rights may assess against the employee any costs attributable to the failure to notify. Failure to notify the division of equal rights does not affect a court's jurisdiction to proceed with the action. Upon commencement of such an action in a court of record, the [Commission] has no jurisdiction to process a complaint filed under s. 230.85 except to dismiss the complaint and, if appropriate, to assess costs under this paragraph.

Section 230.88(2)(c) (emphasis added).

¶ 10. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 45, 271 Wis. 2d 633, 681 N.W.2d 110. The Commission and the University contend that the plain meaning of the statutory language emphasized above can lead to no other conclusion but that the Commission lost its subject matter jurisdiction over Albrechtsen's whistleblower complaint once he filed an action in the federal district court that included allegations of state whistleblower violations. We agree.

¶ 11. Albrechtsen does not dispute that he "commenced an action" in the U.S. District Court for the Western District of Wisconsin on October 5, 2000, in which he alleged the following in his complaint: "The wrongful actions of all the defendants have subjected the plaintiff to unlawful discrimination and retaliation for whistleblowing, contrary to 230.80 to 230.89, Wis. Stats." The Commission found, and Albrechtsen does not dispute, that the events and actions allegedly constituting retaliation as described in his administrative complaint were also the basis of his state whistleblower claims in the federal suit.

¶ 12. Thus, if the U.S. District Court for the Western District of Wisconsin is a "court of record," the provisions of Wis. Stat. § 230.88(2)(c) are implicated. Albrechtsen does not dispute that the federal district court is a "court of record." Rather, he argues that the commencement of an action in a "court of record" does not cause the Commission to lose jurisdiction unless that court is also a "court of competent jurisdiction." Albrechtsen contends that his proffered interpretation "is necessary in order to interpret and apply the statute in a manner consistent with the obvious intent of the Legislature and purpose of the anti-retaliation statutes." We reject Albrechtsen's interpretation because it does not comport with the plain language of the statute. The legislature must be deemed to have intended what the clear import of the words it chooses convey, see Kalal, 271 Wis. 2d 633, 44, and the legislature knows how to refer to "a court of competent jurisdiction" when that is what it intends. See, e.g., Wis. Stat. § 100.20(5) (authorizing persons who suffer "pecuniary loss" because of trade regulation violations to "sue for damages ... in any court of competent jurisdiction").

¶ 13. Albrechtsen also argues that, when the Commission agreed to hold the administrative proceedings "in abeyance" after he commenced the federal court action, the Commission implicitly ruled that its subject matter jurisdiction over his complaint would continue. Albrechtsen further asserts that this then became "the law of the case" that "superceded. the provisions of § 230.8[8](2)(c)" and the Commission could not thereafter rule otherwise. Albrechtsen supports this argument with a single citation to Haase v. R & P Indus. Chimney Repair Co., Inc., 140 Wis. 2d 187, 191-92, 409 N.W.2d 423 (Ct. App. 1987), where we said this: " 'When an issue of fact or law is actually litigated, and determined by a valid and final judgment, the determination is conclusive'" (citing Landess v. Schmidt, 115 Wis. 2d 186, 197, 340 N.W.2d 213 (Ct. App. 1983)).

¶ 14. We reject Albrechtsen's law of the case argument for several reasons. First, in the cited passage from Haase that he offers in support, we were discussing the concept of issue preclusion, not "law of the case," as our cited source plainly reveals. See Landess, 115 Wis. 2d at 197 (discussing "collateral estoppel" (now issue preclusion)). Next, we note that the Commission's decision to stay the administrative proceeding was discretionary and premised solely on the lack of objection from the University, not on a legal conclusion by the Commission that it continued to have subject matter jurisdiction after Albrechtsen commenced his federal lawsuit. The jurisdictional issue was neither raised nor decided at that time. See State v. Stuart, 2003 WI 73, ¶¶ 23-26, 262 Wis. 2d 620, 664 N.W.2d 82 (noting that, generally, the "law of the case" doctrine applies only to legal rulings, not discretionary decisions).

¶ 15. Finally, and perhaps most important, even if the Commission had expressly concluded in November 2000 that it had continuing jurisdiction over Albrechtsen's complaint despite his commencement of a court action alleging the same State law violations, when the Commission recognized in July 2003 that Albrechtsen's court action had caused it to lose jurisdiction, it had no choice but to dismiss the administrative proceeding. The statute could not be plainer as to the effect of Albrechtsen's filing his federal action on October 5, 2000: "Upon commencement of such an action in a court of record, the [Commission] has no jurisdiction to process a complaint filed under s. 230.85 except to dismiss the complaint...." Wis. Stat. § 230.88(2)(c). Thus, the Commission lost jurisdiction as of October 5, 2000, and it thereafter lacked the power to take any actions in the matter "except to dismiss the complaint." This means that the Commission's order in November 2000, holding the administrative proceeding "in abeyance," was of no effect because the Commission, having lost jurisdiction, lacked the authority in November 2000 to do anything other than dismiss Albrechtsen's complaint. Cf. State ex rel. R.G. v. W.M.B., 159 Wis. 2d 662, 666, 465 N.W.2d 221 (Ct. App. 1990) ("A judgment is void if the court rendering it lacked subject matter jurisdiction.").

¶ 16. Albrechtsen next makes an intricate, but ultimately flawed, argument as follows: According to Albrechtsen, Wis. Stat. § 230.88(2) (c) should be read to permit the Commission to do what it did in November 2000, because, after Albrechtsen commenced his federal lawsuit and all during its pendency, the Commission did not "process" his complaint. Instead, further "processing" of his administrative complaint was "in abeyance" during the pendency of the federal litigation and would not have resumed until the federal litigation ended. Thus, in Albrechtsen's view, the asserted purpose of Wis. Stat. § 230.88(2) (c) was served because the court litigation and the administrative processing of his whistleblowing allegations never proceeded simultaneously, and, therefore, "the Commission properly could exercise jurisdiction after it was no longer vested in a court of record." This is, essentially, the position adopted by the Dissent.

¶ 17. We reject Albrechtsen's (and the Dissent's) suggestion that subject matter jurisdiction can be switched "on and off' at will, or that Wis. Stat. § 230.88(2)(c) permits jurisdiction to be initially possessed by the Commission, lost to the federal court and then regained by the Commission when the federal litigation ended. As we have discussed, under § 230.88(2)(c), when Albrechtsen filed his federal action, the Commission lost jurisdiction and thereafter lacked the power to do anything other than dismiss the administrative proceeding. The statute does not say or even suggest that the Commission can stay its proceeding on a whistleblower complaint in deference to a parallel court action, and then resume the processing of the complaint once the court action has ended. Rather, the statute expressly and permanently ends all administrative processing of the complaint, regardless of the outcome in the alternative court forum. In short, the Commission lost all power to adjudicate Albrechtsen's complaint on October 5, 2000, and nothing in § 230.88(2)(c) permits the Commission's jurisdiction to be resurrected at a later time.

¶ 18. Albrechtsen next argues that the Commission's action in dismissing his complaint without reaching the merits resulted in a violation of his constitutional right to due process. Specifically, Albrechtsen claims that he was deprived of his "right to be heard" regarding the merits of his allegations that the University violated rights conferred on him by the whistle-blower statutes. After his initial statement of the argument in conclusory terms, however, Albrechtsen provides no authority for the proposition that an administrative body's dismissal of a claimed violation of state law for lack of jurisdiction constitutes an impermissible denial of the right to be heard. Instead, he proceeds with a discussion of why he (and the University) believe that the Commission erred in concluding that his state whistleblower claims could be pursued in federal court, a question we need not decide, as we discuss below.

¶ 19. As for the undeveloped constitutional claim, we agree with the University that Albrechtsen was not denied his due process rights to "notice and [the] opportunity for hearing" regarding the Commission's disposition of his claim. See Waste Mgmt. of Wis., Inc. v. DNR, 128 Wis. 2d 59, 78, 381 N.W.2d 318 (1986). Albrechtsen was notified by the University's motion of its request for dismissal on jurisdictional grounds, he was given the opportunity to respond with written arguments as to why the motion should be denied, and he did so respond. The Commission then issued a written decision explaining its rationale for dismissing the proceeding. Albrechtsen has since availed himself of the opportunity for judicial review of the Commission's action and for appellate review of the circuit court's affirmance. See id. at 80-81. In short, the requirements of due process were amply met on this record. We are not aware of a constitutional right to have the merits of one's claim adjudicated before a tribunal when the tribunal, by statute, lacks the power to proceed.

¶ 20. We turn next to Albrechtsen's argument that an administrative proceeding under Wis. Stat. § 230.85 is the exclusive remedy for alleged violations of Wis. Stat. § 230.83(1), and the Commission therefore erred when it concluded otherwise. The University also espouses this position. As we have described, the University moved to dismiss the whistleblower claims from the federal suit on the ground that the state administrative remedy was exclusive, a position to which Albre-chtsen acceded. The Commission concluded that the parties and the federal court were wrong in believing that Albrechtsen could not pursue a judicial remedy for his whistleblower claims. We conclude it is unnecessary for us to decide the issue.

¶ 21. Albrechtsen does not explain how or why the Commission's conclusion on the exclusive jurisdiction issue renders erroneous its conclusion that it lost jurisdiction under Wis. Stat. § 230.88(2)(c) when Al-brechtsen commenced his federal action. Although the University agrees with Albrechtsen that the Commission erred in concluding that an administrative proceeding under § 230.85 is not the exclusive remedy for an alleged violation of § 230.83(1), it maintains that the error was "harmless" and does not detract from the correctness of the Commission's decision on its jurisdiction. We agree in part with the University's analysis: the Commission's conclusion on the exclusive remedy issue is unrelated and unnecessary to its resolution of the jurisdictional question posed by § 230.88(2)(c). Moreover, the issue is not properly before us in this judicial review of the Commission's decision to terminate the § 230.85 administrative proceeding. Whether the administrative proceeding was the exclusive remedy for Albrechtsen's alleged violation of § 230.83(1) was a matter for the court in which Albrechtsen filed his parallel action to decide. We have no power to affect the resolution of that question in the federal court action.

¶ 22. Albrechtsen next argues that the University, by informing the Commission that it had "no objection" to holding the Commission proceeding in abeyance while he pursued his claims in federal court, waived the jurisdictional argument it made in support of its motion to dismiss the Commission proceeding. We agree with the Commission, however, that parties cannot confer subject matter jurisdiction on a tribunal "by their waiver or consent." See Wisconsin's Envtl. Decade, Inc. v. Public Serv. Comm'n, 84 Wis. 2d 504, 515, 267 N.W.2d 609 (1978). An administrative agency "has only those powers which are expressly conferred or which are fairly implied from the statutes under which it operates." Peterson v. Natural Res. Bd., 94 Wis. 2d 587, 592, 288 N.W.2d 845 (1980). The legislature expressly withdrew the power of the Commission to adjudicate Albrechtsen's whistleblower claims once he filed an action alleging those claims in a court of record. See Wis. Stat. § 230.88(2)(c). Nothing the University did or did not do during the administrative proceeding before the Commission could result in the Commission's acquiring a power expressly denied it by statute.

¶ 23. The foregoing rationale effectively disposes of Albrechtsen's estoppel arguments as well. See Environmental Decade, 84 Wis. 2d at 515-16 ("Nor can subject matter jurisdiction be conferred by estoppel."). Albrechtsen contends that the Commission should be equitably estopped from concluding, and the University equitably and judicially estopped from arguing, that the Commission lost jurisdiction over his complaint. Albrechtsen claims that he reasonably relied to his detriment on the University's failure to object and the Commission's granting of his request to hold the Commission proceedings in abeyance during the pen-dency of his federal court action. We note, however, that Albrechtsen filed his federal action on October 5, 2000, before the University told the Commission it did not object to holding the administrative proceeding in abeyance (November 20, 2000) and before the Commission granted the request (November 30, 2000). Thus, even if a lack of subject matter jurisdiction could be cured by a claim of estoppel, we agree with the Commission's determination that the record establishes Albrechtsen could not have reasonably relied on either its or the University's actions when he commenced his federal action.

¶ 24. As for the judicial estoppel claim, it, too, fails for multiple reasons. Albrechtsen claims the University should not be permitted to argue in this action that the administrative proceeding must be dismissed for lack of jurisdiction after arguing in the federal court that the administrative proceeding was the exclusive remedy for his whistleblower claims. Again, however, even if judicial estoppel could cure the Commission's loss of jurisdiction upon Albrechtsen's commencement of his federal action (which, as we have explained, it cannot), the University's positions are not "irreconcilably inconsistent" with one another. See State v. Petty, 201 Wis. 2d 337, 353, 548 N.W.2d 817 (1996). Although we do not address the University's arguments on this point, it continues to maintain that allegations of a violation of Wis. Stat. § 230.83(1) may be brought only in an administrative proceeding under § 230.85, while the underlying facts may permit a claim to also be pled in a judicial forum under Wis. Stat. § 895.65. Because Albrechtsen pled only the former statute in his federal suit, the University contends that both the federal suit and the administrative proceeding were properly dismissed. Regardless of whether the University's position has merit, its arguments in support of its motions to dismiss both actions are not irreconcilably inconsistent.

¶ 25. Finally, we note that Albrechtsen also claims the Commission erred in refusing to allow him to file an amended complaint that he tendered in July 2003, just before the Commission ruled on the University's motion to dismiss the administrative proceeding. He essentially concedes, however, that if we conclude the Commission lost jurisdiction over Albrechtsen's whistleblower claims, we cannot direct it to accept the amended complaint. Because we conclude that jurisdiction was lost, we do not address whether the Commission should have considered Albrechtsen's amended complaint.

CONCLUSION

¶ 26. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

VERGERONT, J.

¶ 27. (dissenting). I do not agree with the majority that the meaning of Wis. Stat. § 230.88(2)(c) is plain when applied to the facts of this case. I agree that there is no ambiguity if one focuses on the time when Albrechtsen filed the federal court action: the language plainly required the Commission to dismiss Albrechtsen's complaint. However, due to the parties', and perhaps the Commission's, misunderstanding of this requirement, that is not what occurred. Thus, at the time the Commission first actually addressed the meaning of § 230.88(2)(c), there was no Wis. Stat. § 230.83(1) claim pending in the federal court action, it had not been adjudicated in that action, and it was clearly not going to be adjudicated in that action. In my view, the proper way to frame the statutory construction issue presented on the facts of this case is to ask: if the Commission had dismissed Albrechtsen's claim when it should have, would the statute have permitted the Commission to vacate that dismissal order after the dismissal in the federal action? I conclude that the language of § 230.88(2)(c) does not plainly answer this question. Generally, administrative agencies have the authority to vacate orders they have entered, and there is no express prohibition in § 230.88(2)(c) on vacating a dismissal order entered under this subsection.

¶ 28. In construing the meaning of statutory language we consider the purpose of the statute insofar as it is ascertainable from the text and structure of the statute itself as expressed in the text. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110. The evident purpose of the requirement that the Commission dismiss the complaint "upon commencement of such action in a court of record" is to avoid the Commission adjudicating a claim that is going to be adjudicated in court. The requirement that, at least ten days before the Commission hearing, the employee notify the Commission that the employee either has or will file a court action and the assessment of costs for failure to do so both further this purpose: they minimize the chances that the Commission will incur expenses in adjudicating a claim that is going to be adjudicated in a court action.

¶ 29. When, as here, a claim "alleging matters prohibited under s. 230.83(1)" is dismissed in the court action before adjudication in that forum because the parties believe that it must be adjudicated by the Commission, no duplication occurs if the Commission vacates its earlier dismissal order and adjudicates the claim. Indeed, if the Commission does not do so, the employee never has his or her claim adjudicated at all. That is inconsistent with the express policy behind Wis. Stat. §§ 230.80-230.88: "to encourage disclosure of information [as defined in those sections] and to ensure that any employee employed by a governmental unit is protected from retaliatory action for disclosing information under [those sections]." Wis. Stat. § 230.01(2). The legislature has expressly directed that we construe Wis. Stat. ch. 230 "liberally in aid of the purposes declared in s. 230.01." Wis. Stat. § 230.02.1 therefore conclude that, had the Commission dismissed Albrechtsen's claim when he filed the federal action, the Commission would have had the authority to vacate that order after dismissal of the § 230.83(1) claim in the federal action.

¶ 30. Because in my view the Commission would have had the authority to vacate the dismissal order that it should have entered and to adjudicate Albrechtsen's claim, I see no reason that it does not have the authority to adjudicate Albrechtsen's claim after having ordered the claim held in abeyance rather than dismissing it. For the reasons I have explained in the preceding paragraphs, I conclude Wis. Stat. § 230.88(2)(c) does not prevent the Commission from doing so. Thus, I conclude the Commission erred in deciding that it was required by § 230.88(2)(c) to dismiss Albrechtsen's claim now.

¶ 31. I recognize that a conclusion that the Commission has the authority to adjudicate Albrechtsen's claim is not the same as a requirement that it do so. That is, in the context of a motion to vacate a dismissal order entered under Wis. Stat. § 230.88(2)(c), there may be reasons why the Commission could properly deny a motion to vacate a dismissal order even though it had the authority to vacate that order. However, in this case, the only reason the Commission dismissed Albrechtsen's claim rather than proceeding to adjudicate it was its decision that it was required to do so by § 230.88(2)(c). The Board of Regents did not argue before the Commission that there would have been unfairness to it if the Commission had adjudicated Albrechtsen's claim at that time; and I see nothing in the record that would provide a reasonable basis for the Commission to decide not to adjudicate Albrechtsen's claim, given that, in my view, it has the authority to do so. Therefore, I would reverse the circuit court's order affirming the Commission's dismissal order and direct the circuit court to remand to the Commission for an adjudication of Albrechtsen's claim. Accordingly, I respectfiilly dissent.

       When Albrechtsen filed his complaint, and when the Commission dismissed it, Wis. Stat. § 230.85 (2001-02) provided that complaints of violations of the whistleblower statutes were to be filed with the Personnel Commission. After the Commission issued the decision under review, the Commission's responsibilities under § 230.85 were transferred to the Equal Rights Division in the Department of Workforce Development. See 2003 Wis. Act 33, §§ 2428-2440. The Commission's decision is thus deemed to have been issued by the department, who is a respondent in this appeal. See id., § 9139(l)(d)2. We refer in this opinion, as the circuit court and the parties have done, to the decision under review as that of the Commission and to the department's arguments as those of the Commission.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The supreme court has defined a "court of record" as follows:
      A court of record has been defined as a court where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority; a court that is bound to keep a record of its proceedings, and that may fine or imprison; a court whose proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question; a judicial, organized tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law; and a court having a seal.

        Malinowski v. Moss, 196 Wis. 292, 296, 220 N.W 197 (1928).

       Although the University first asks us to resolve this "important.. . interim issue," it acknowledges later in its brief that we "need not determine whether the federal court had jurisdiction over . .. the whistleblower . . . claims that Albrecht-sen pled." We agree with the University's second position — that we need not determine who was right on this issue.

       We note that, in discussing the "exclusive remedy" issue, both parties point to Wis. Stat. § 895.65, which the Commission also cited in its ruling. That statute provides in part as follows:
      An employee may bring an action in circuit court against his or her employer or employer's agent, including this state, if the employer or employer's agent retaliates, by engaging in a disciplinary action, against the employee because the employee exercised his or her rights under the first amendment to the U.S. constitution or article I, section 3, of the Wisconsin constitution by lawfully disclosing information or because the employer or employer's agent believes the employee so exercised his or her rights.
      Section 895.65(2). Although § 895.65 makes no cross-reference to Wis. Stat. § 230.80-230.89, the definitions of "employee" and "information" it employs are virtually identical to those set forth in § 230.80. See §§ 230.80(3) and (5), 895.65(1)00 and (d). The Commission concluded that the existence of § 895.65 supports its conclusion that the reference to "an action in a court of record" in § 230.88(2) (c) means that the legislature intended to permit judicial avenues of relief, as well as the administrative one, for persons seeking to enforce the whistle-blower statutes.
      The University's position is that § 895.65 provides the only avenue for raising whistleblower claims in court, and that Albrechtsen could have salvaged his federal claim by amending his complaint to allege a violation of § 895.65(2) instead of a violation of 230.83(1). Albrechtsen asserts, however, that he could not have alleged a § 895.65 violation because the adverse actions taken against him (withholding merit pay increases and not scheduling his classes) were not "disciplinary actions" as required under § 895.65, thereby requiring him to allege "retaliatory action" only under Wis. Stat. § 230.83(1). (Albrechtsen's argument ignores the fact that "retaliatory action" is expressly defined to mean "a disciplinary action," see § 230.80(8), and that both § 895.65(l)(a) and § 230.80(2) define "disciplinary action" to mean "any action taken with respect to an employee which has the effect, in whole or in part, of a penalty.") In any event, as we have explained, a resolution of the interrelationship of §§ 230.80-230.89 and § 895.65 is not necessary to our disposition of this appeal, and we decline to discuss it further.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       I agree with the majority that it is not necessary to decide whether the Board of Regents is correct that the Commission is the exclusive forum for resolving Albrechtsen's claim that his rights under Wis. Stat. § 230.83(1) were violated. However, it appears to me that the Board's disagreement with the Commission on this point is more a matter of semantics than anything else. As I understand the Commission's statements on this point, it views Wis. Stat. § 895.65 as the vehicle for filing a claim in court on "matters prohibited under s. 230.83(1)." Wis. Stat. § 230.88(2)(c). Thus I understand the Commission to mean that the administrative remedy in Wis. Stat. § 230.85 (and judicial review of the Commission's decision under Wis. Stat. § 230.87) is not exclusive in the sense that a court action under § 895.65 provides a remedy for the violation of essentially the same rights as protected by § 230.83(1). I do not understand in what meaningful way this differs from the Board of Regents' position.


author: CANE, C.J.

text:
    Security State Bank, Plaintiff-Respondent, v. Dale J. Sechen and Donna L. Sechen, Defendants-Appellants, Ashland Motor Co. and State Bank of Drummond, Defendants, Northsouth, LLC, Appellant, Peter Lulich, Respondent, Lois J. Koval and Ron and LuAnne Prochnow, Defendants-Respondents.
    Court of Appeals

      2005AP482.

      Submitted on briefs October 3, 2005.

      —Decided October 18, 2005.

    2005 WI App 253
    (Also reported in 707 N.W.2d 576.)

      On behalf of the defendants-appellants, Dale J. Sechan and Donna L. Sechan, and the appellant, North-south, LLC, the cause was submitted on the briefs of Michael J. Happe of Ryberg & Happe, S.C. of Eau Claire.
    On behalf of the respondent, Peter Lulich, the cause was submitted on the brief of Jeffrey F. Snyder of Cable.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 2-27-06.

   CANE, C.J.

¶ 1. Dale and Donna Sechen appeal an order confirming the sheriffs sale of their foreclosed property. The Sechens argue the circuit court erred when it denied them their right to redeem the property after the sheriffs sale but before the confirmation of the sale. We agree that the Sechens had a right to redeem the property prior to the confirmation. Therefore, we reverse the court's order.

Background

¶ 2. Security State Bank held a mortgage on 355 acres of farmland owned by the Sechens. The bank foreclosed on the property and obtained a judgment of foreclosure on October 22, 2003. The judgment ordered the property split and sold in three parcels, A, B, and C. Consequently, a sheriffs sale was ordered and noticed. At the November 9, 2004 sale, Northsouth, LLC purchased parcel A and Peter Lulich purchased parcels B and C.

¶ 3. Two days prior to the hearing to confirm the sale, Dale notified the bank that the Sechens were redeeming the property. On December 14, the day before the confirmation hearing, the Sechens sold the property to Northsouth and wired the payment owed to the bank. The bank held the payment in a money order until the hearing.

¶ 4. At the hearing on December 15, the circuit court denied the Sechens right of redemption. The court interpreted the relevant statutes and case law as requiring redemption prior to the sheriffs sale. The court stated:

I'm satisfied that the sale - the statute talks about the sheriffs sale, not the confirmation of sale, and the statute says before....
I'm satisfied the language is clear. It's before sale. The sale is the sheriffs sale. That's done. The high bidders win.

The court entered an order confirming the sheriffs report of sale and for delivery of the deeds to North-south for parcel A and to Lulich for parcels B and C.

Standard of Review

¶ 5. Interpretation of a statute is a question of law that we review without deference. State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 642 N.W.2d 230. "Foreclosure proceedings are equitable in nature." First Fin. Sav. Ass'n v. Spranger, 156 Wis. 2d 440, 444, 456 N.W.2d 897 (Ct. App. 1990). The decision to confirm a foreclosure sale rests with the discretion of the trial court. Gumz v. Chickering, 19 Wis. 2d 625, 633-34, 121 N.W.2d 279 (1963). However, the court's decision will not be upheld if the record indicates "the trial court applied the wrong legal standard." Oostburg State Bank v. United S&L Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986).

Discussion

¶ 6. The sole issue is whether the Sechens had a right to redeem the foreclosed property after the sheriffs sale but before the confirmation of the sale. The Sechens argue that the court incorrectly interpreted the relevant statutes when it denied them their right of redemption prior to confirmation of the sheriffs sale.

¶ 7. Foreclosure proceedings are governed by Wis. Stat. ch. 846. In pertinent part, Wis. Stat. § 846.13 states that after a foreclosure judgment is entered a "mortgagor . .. may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff... the amount of such judgment." Wisconsin Stat. § 846.17 directs the sheriff after the foreclosure sale to "make and execute to the purchaser ... a deed of the premises sold . . . ." The statute goes on to note that only "upon confirmation of [the] sale" does the deed vest "all the right, title and interest of the mortgagor" in the purchaser and bars all further claims, including the "right of equity of redemption . ..." Id.

¶ 8. We agree with the Sechens that the two statutes, read together, establish a mortgagor's right to redeem foreclosed property any time prior to sale, and "sale" occurs upon confirmation. The statutes are clear that only upon confirmation does title vest in the purchaser and extinguish the mortgagor's right of redemption.

¶ 9. Wisconsin case law supports this conclusion. See Gerhardt v. Ellis, 134 Wis. 191, 195, 114 N.W. 495 (1908). In Gerhardt, our supreme court held that "[t]here can be no doubt but that the right to redeem persists, at least until confirmation of sale . . .." The court reasoned that the mortgagor's right of redemption survives until confirmation of the sale because only upon confirmation does the title vest in the purchaser. Id. at 196. Although Gerhardt interpreted the predecessor statutes to Wxs. Stat. §§ 846.13 and 846.17, both sets of statutes are substantively identical. In 1990, we again recognized that "sale" under § 846.13 means confirmation of the sale. See Hobl v. Lord, 157 Wis. 2d 13, 17, 458 N.W.2d 536 (Ct. App. 1990), rev'd on other grounds, 162 Wis. 2d 226, 470 N.W.2d 265 (1991).

¶ 10. Lulich's response is based in large part on M&I Marshall & Ilsley Bank v. Kazim Inv., Inc., 2004 WI App 113, 269 Wis. 2d 479, 678 N.W.2d 322, which is inapplicable. In M&I, we held that a circuit court had "no authority to accept a plan of redemption that failed to provide for immediate, full payment." Id., ¶ 5. Our decision in M&I does not contradict the earlier decision in Gerhardt. We do not see, and Lulich fails to explain, how M&I addresses the issue at present. As we have demonstrated, Wisconsin law establishes that the mortgagor has the right of redemption until confirmation of the sheriffs sale, and Lulich has provided no case law to rebut that contention.

¶ 11. Thus, the court erred when it ruled that the Sechens had no right to redeem the foreclosed property after the sheriffs sale but before the confirmation of the sale. We hold that the Sechens had a right to redeem the property.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Lulich also argues that the language of the statutes support the conclusion that the right of redemption does not exist after the sheriffs sale. We disagree for the reasons already articulated.


author: ANDERSON, J.

text:
    IBEW Local Union No. 2150, Plaintiff-Appellant, v. Rodney Stone, Defendant-Respondent.
    Court of Appeals

      No. 2005AP66.

      Submitted on briefs August 24, 2005.

      —Decided October 19, 2005.

    2005 WI App 251
    (Also reported in 708 N.W.2d 30.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Yingtao Ho of Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Charles H. Barr and Lisa R. Jonas of Croen & Barr LLP, Milwaukee.
    Before Snyder, EJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. IBEW Local Union No. 2150 appeals from an order for summary judgment dismissing its breach of contract action in which it seeks to enforce a $10,000 fine against Rodney Stone and an order denying its motion for reconsideration. The issue is whether the circuit court erred in holding that a letter informing Stone of the IBEW constitutional provisions he violated and notifying him of the date, time and location of his union trial did not satisfy the requirement that the union provide its members with "written specific charges." We hold that the written charges must contain a detailed statement of the facts describing the incident that formed the basis for the disciplinary action. Because the letter Local 2150 sent to Stone failed to satisfy this requirement, its disciplinary action is void and its fine is unenforceable. We affirm.

¶ 2. The facts relevant to the issue on appeal are as follows. Stone joined IBEW Local 51 in Illinois in 1986. He later received a copy of the October 1991 IBEW constitution. In early 2002, Stone was laid off. Despite several months of searching, he was unable to obtain work through Local 51. In July 2002, Stone accepted nonunion employment with Custom Underground in Wisconsin. At the time he accepted employment, Stone was aware that Custom Underground was in the process of negotiating a union contract, but had not yet signed one. Custom Underground was located in Local 2150's territory. Later that summer, negotiations between Custom Underground and Local 2150 broke down.

¶ 3. On October 15, 2002, Local 2150 Recording Secretary Nancy Wagner sent a letter to Stone informing him that he was charged with violating "Article XXV, Section 1, subsections (a), (e), (f), and (q) of the [International Brotherhood of Electrical Workers Constitution (2001)]." In her letter, Wagner informed Stone of the date, time and location of his trial and stated, "Enclosed is a copy of the original charge filed against you." Stone did not attend the trial. The Local 2150 executive board, serving as the trial board, found Stone guilty of all charges and fined him $10,000 with a six-year suspension of IBEW membership. In a May 13, 2003 letter, Wagner advised Stone of the results of the trial and informed him that he had the option of appealing the conviction.

¶ 4. On August 22, 2003, Local 2150 filed this breach of contract action against Stone, seeking to recover the $10,000 fine it had issued against him. The parties both filed motions for summary judgment. Stone claimed, in part, that Local 2150 had violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §411 (2000). Section 411(a)(5) of the LMRDA provides:

(5) Safeguards against improper disciplinary action
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges ....

The circuit court agreed with Stone, stating:

The problem we have here is the enclosed copy of the original charges were, in fact, not enclosed, and they were not served on Mr. Stone.
I view this akin to a ... Summons and Complaint. I'm satisfied he received the Summons; however, he did not receive the Complaint in terms of what the issues or specific charges were or what he was to contest. I'm satisfied he's entitled under federal law to that in writing. Without that there is no ability for him to prepare, to raise a defense ....
I'm satisfied the process from its inception was void....
So at least on that basis their determination and the imposition of the $10,000 fine, I'm satisfied, is not enforceable through these procedures.

The circuit court issued an order for summary judgment in favor of Stone. Thereafter, Local 2150 filed a motion for reconsideration, which the circuit court denied. Local 2150 now appeals.

¶ 5. "We review a circuit court's decision granting summary judgment independently, but we apply the same methodology as the circuit court." Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶ 14, 281 Wis. 2d 448, 699 N.W.2d 54. Pursuant to Wis. Stat. § 802.08(2) (2003-04), summary judgment "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." An issue is "genuine" if the evidence is such that reasonable jurors could return a verdict for the nonmoving party. Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991). As part of this summary judgment analysis, we must interpret and apply the LMRDA. Statutory interpretation and application also pose questions of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997).

¶ 6. The LMRDA requires that a union member subject to discipline be "served with written specific charges." 29 U.S.C. § 411(a)(5). This provision requires that the charges, at a minimum, must be "so drafted as to inform a member with reasonable particularity of the details of the charges." Berg v. Watson, 417 F. Supp. 806, 810 (S.D.N.Y. 1976) (citation omitted); see also Johnson v. National Ass'n of Letter Carriers Branch 1100, 182 F.3d 1071, 1074 (9th Cir. 1999) (citation omitted). The written charges must contain a detailed statement of the facts relating to the incident that formed the basis for the disciplinary action, including the circumstances surrounding the alleged offense and, as nearly as they can be ascertained, the time and place of its occurrence. Johnson, 182 F.3d at 1074 (citing International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233 (1971); Berg, 417 F. Supp. at 810. The level of detail required is that needed to "notify the accused of the incidents that form the basis of the charge so that he or she may prepare a defense." Johnson, 182 F.3d at 1075.

¶ 7. Applying these principles to the case before us, we conclude that the letter Local 2150 sent Stone did not comply with 29 U.S.C. § 411(a)(5). The letter advised Stone of the time, date and location of his union trial and of the IBEW constitutional provisions he allegedly violated. However, the letter lacked any factual details that would have given Stone any notice of the specific actions he had to defend. In the absence of any statement of the facts, Stone could not be expected to present an adequate defense, save for a more general denial of any misconduct. Furthermore, the letter did not quote the constitutional provisions he allegedly violated and Stone did not have a copy of the version of the constitution under which he was charged.

¶ 8. Local 2150 contends that there remains a genuine issue of fact regarding whether Stone received the attachment to the letter, which purportedly sets forth in detail the charges against him. Stone has met his burden of showing he did not receive the separate written charges.

¶ 9. At his deposition, Stone acknowledged receiving the letter. He did not, however, testify that he also received the allegedly attached copy of the charges against him. Furthermore, we find no evidence of such an attachment in the record. Local 2150 did not present the attachment in any of its submissions to the circuit court, including its motion for summary judgment and accompanying affidavits. Indeed, in its motions for summary judgment and reconsideration, Local 2150 did not argue that Stone had received the attachment; rather, Local 2150 focused its attention on whether the letter alone adequately notified Stone of the charges against him.

¶ 10. Local 2150 also points out that Stone answered in the affirmative to the following interrogatory: "Did Stone receive a letter from Local 2150 dated October 15, 2002, which notified him of the date, place and time of his trial, as well as the factual basis of the charges against him?" From this, Local 2150 asks us to infer that Stone received the attached copy of the original charges. Local 2150, however, never offered any evidence whatsoever that anyone enclosed a copy of the original charges with the notice letter. Without any evidence of the attachment in the record, we cannot conclude that Stone's affirmative response to this vaguely worded interrogatory means that he received a copy of the original charges and those charges set forth a sufficient factual basis such that he cannot now complain of a violation of his LMRDA due process rights.

¶ 11. Local 2150 next maintains that Stone's actions following receipt of the notice letter demonstrate that he had "actual notice" of the charges against him. However, it cannot be assumed that the accused member is guilty and has knowledge of his or her derelictions, thereby eliminating his or her need to be informed of the factual basis for the charges. Gleason v. Chain Serv. Rest., 300 F. Supp. 1241, 1253 (S.D.N.Y. 1969), aff'd, 422 F.2d 342 (2d Cir. 1970); Eisman v. Baltimore Reg'l Joint Bd. of the Amalgamated Clothing Workers, 352 F. Supp. 429, 435 (D. Md. 1972), aff'd, 496 F.2d 1313 (4th Cir. 1974). Thus, an ex post facto showing that an accused union member had knowledge of the events surrounding the alleged offenses cannot cure the lack of adequate written notice of disciplinary charges. Gleason, 300 F. Supp. at 1253; Reilly v. Sheet Metal Workers' Int'l Ass'n, AFL-CIO, 488 F. Supp. 1121, 1127 (S.D.N.Y. 1980) ("The independent knowledge of the accused concerning the circumstances of his [or her] own alleged wrongdoing, however, will not excuse the defendant's failure to comply with the requirements of the Act."). Therefore, it does not matter that Stone may have known generally about the circumstances leading up to the charges.

¶ 12. In light of the foregoing, we conclude that the charges herein fail to meet the statutory standard and are thus fatally inadequate. The absence of any factual details whatsoever in the notice letter renders the written charges inherently prejudicial. See Johnson, 182 F.3d at 1076-1077. Accordingly, the action of the union in levying a fine upon Stone is null and void. See Berg, 417 F. Supp. at 811.

¶ 13. In a last-ditch effort to save its case from dismissal, Local 2150 argues that the law requires a union member to exhaust internal union appeal procedures before the union member can rely on a 29 U.S.C. § 411(a)(5) violation as a defense in an action to collect a union fine. See UAW, AFL-CIO, Local 283 v. Scofield, 50 Wis. 2d 117, 138, 183 N.W.2d 103 (1971); 29 U.S.C. § 411(a)(4) (members may be required to exhaust internal union remedies). In Local 2150's view, Stone did not exhaust the internal union remedies available to him because he did not appeal his original conviction. However, a union member need not exhaust internal union remedies if his or her claim "falls within some exception to the exhaustion doctrine." Scofield, 50 Wis. 2d at 138. One such recognized exception is where the union's disciplinary action is demonstrably void for lack of adequate notice. Kopke v. Ranney, 16 Wis. 2d 369, 373, 114 N.W.2d 485 (1962). As we have explained, the disciplinary action in this case was demonstrably void for lack of adequate notice.

¶ 14. Local 2150 contends that despite this recognized exception to the exhaustion doctrine, exhaustion of internal union remedies is excused only when conceded or easily determined facts show a "serious violation" of the union member's rights. See Libutti v. Di Brizzi, 337 F.2d 216, 219 (2d Cir. 1964), aff'd on reh'g, 343 F.2d 460 (2d Cir. 1965). According to Local 2150, a union's failure to provide "written specific charges" is not a "serious violation" when, as here, the union member received notice of the sections of the constitution that he violated and was able to infer from the notice the factual basis of the charges against him. See Harris v. Plasterers and Cement Masons Local No. 406, 619 F.2d 1164, 1168 (7th Cir. 1980) (holding that while there were questions concerning the specificity of the charges, it was arguable that the members were sufficiently aware of them and therefore the charges were not so defective as to excuse resort to internal union remedies).

¶ 15. However, as our previous discussion illustrates, in this case the easily determinable facts concerning the written charges Stone received indicate that the union's disciplinary action was in violation of the statutory requirements. Regardless of any alleged independent knowledge Stone may have had regarding the circumstances giving rise to the charges, the complete absence of any factual details whatsoever in the notice letter would have made it difficult, if not impossible, for Stone to prepare an adequate defense. See Johnson, 182 F.3d at 1076-1077. The legislative intent in enacting these requirements was to ensure due process and "basic fairness" in union disciplinary proceedings. Reilly, 488 F. Supp. at 1125. We therefore reject Local 2150's argument that its failure to provide Stone with "written specific charges" was not a serious violation of his rights. Stone was not required to exhaust internal union remedies.

By the Court. — Orders affirmed.

       Stone withdrew from the union for a brief period in 1994 and 1995 while he was looking for work, but then rejoined when he accepted employment with a union employer.

       The relevant provisions of the INTERNATIONAL BROTHERHOOD op ElectRical Woekers Constitution (2001), article XXV are as follows:
      Sec. 1. Any member may be penalized for committing any one or more of the following offenses:
      (a) Violation of any provision of this Constitution and the rules herein, or the bylaws, working agreements, or rules of a L.U.
      (e) Engaging in any act or acts which are contrary to the member's responsibility toward the I.B.E.W., or any of its L.U.'s, as an institution, or which interfere with the performance by the I.B.E.W or a L.U. with its legal or contractual obligations.
      (f) Working for, or on behalf of, any employer, employer-supported organization, or other union, or the representatives of any of the foregoing, whose position is adverse or detrimental to the I.B.E.W
      (q) Working for any individual or company declared in difficulty with a L.U. or the I.B.E.W, in accordance with this Constitution.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       In its motion for summary judgment, Local 2150 states:
      There is no dispute that Local 2150 sent Stone a letter dated October 15, 2002, which outlined the specific provisions that he was charged with violating, as well as the date, time, and place of the trial. Stone received the letter on October 18.
      The letter adequately informed Stone of the charges against him.
      In its motion for reconsideration, Local 2150 reasoned that Stone could not complain of a LMRDA violation because the letter put him on notice of the IBEW constitutional provisions he allegedly violated and he was able to infer from the letter the factual basis of the charges against him.

       This case is readily distinguished from Harris v. Plasterers and Cement Masons Local No. 406, 619 F.2d 1164, 1168 (7th Cir. 1980), where the court determined that "the charges were [not] so defective as to excuse resort to internal remedies." In Harris, unlike here, there was evidence that the members' own attorney understood, prior to the disciplinary hearing, the factual basis of the charges against his clients. See id. Therefore, the members' attorney could prepare a defense. In Harris, unlike here, the notice to the union members quoted in full the constitutional provisions the members were accused of violating. See id. Thus, in Harris, unlike here where the conceded and the easily determinable facts show a violation of Stone's rights under 29 U.S.C. § 411(a)(5), there were "questions concerning the specificity of the charges." See Harris, 619 F.2d at 1168.
      Further, contrary to Local 2150's assertions, we do not read Harris as establishing a bright-line rule that if an accused member can figure out the factual basis of the charges against him or her, the union's failure to provide "written specific charges" does not constitute a "serious violation" of 29 U.S.C. § 411(a)(5), and the union member's failure to exhaust internal union remedies is not excused. Rather, it was simply under the circumstances of that case that the court found that the questionably insufficient charges did not excuse the union members' failure to exhaust internal union remedies. We remind Local 2150 that it is well established that the exhaustion provision of 29 U.S.C. § 411(a)(4) is not mandatory and the statutes leave the ultimate decision whether to require exhaustion in a particular case to the sound discretion of the courts. See Kowaleviocz v. Local 333 of the Int'l Longshoremen's Ass'n, 942 F.2d 285, 288 (4th Cir. 1991).