author: ANN WALSH BRADLEY, J.

text:
    Gloria C. Pinczkowski and Leroy S. Pinczkowski, Plaintiffs-Appellants-Petitioners, v. Milwaukee County, Defendant-Respondent. Gloria C. Pinczkowski, Plaintiff-Appellant-Petitioner, v. Milwaukee County, Defendant-Respondent.
    Supreme Court

      Nos. 2003AP1732 & 2003AP2127.

      Oral argument October 7, 2005.

    Decided December 1, 2005.

    2005 WI 161
    (Also reported in 706 N.W.2d 642.)

      For the plaintiffs-appellants-petitioners there were briefs by Alan Marcuvitz, Andrea H. Roschke, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Alan Marcuvitz and Andrea H. Roschke.

    For the defendant-respondent there was a brief and oral argument by Timothy R. Karaskiewicz, principal assistant corporation counsel, with whom on the brief was William J. Domina, corporation counsel.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Gloria Pinczkowski, seeks review of a published court of appeals decision affirming two circuit court judgments relating to the condemnation of her property for purposes of an airport expansion project. She asserts that the circuit court erred by excluding evidence of the sale price of two adjacent properties previously sold to Milwaukee County and evidence of a private party's letter of intent to purchase her property. Pinczkowski also contends that she was entitled to a replacement housing payment.

¶ 2. Relying on well-established precedent, we determine that the circuit court properly excluded evidence of the sale price of the adjacent properties because the sales were to a condemning authority in the process of obtaining property for a public project. Likewise, we determine there was no circuit court error in excluding evidence of the letter of intent because it was speculative evidence of fair market value, and we observe that Pinczkowski was otherwise able to put her theory of private party interest before the jury. Finally, adhering to principles of deference to agency interpretations of statutory and administrative code provisions, we uphold the state Department of Commerce determination that Pinczkowski was not entitled to a replacement housing payment. Accordingly, we affirm the decision of the court of appeals.

hH

¶ 3. In 1987, the County began planning to expand General Mitchell International Airport. The County's plan was eventually detailed in an "Airport Master Plan," dated April 1992, and was approved by the Milwaukee County Board of Supervisors in 1993. The Plan reflected an intent to acquire private property, including Pinczkowski's property and two adjacent properties, for uses related to expansion of the airport. In 1996, the County Board passed a resolution directing County officials to commence negotiations with the property owners.

¶ 4. Also by the mid-1990s, Hertz Corporation and another rental car company were informed that they would need to relocate their service facilities. Hertz contacted Pinczkowski and in July 1997 sent her a letter of intent to purchase her property for a specified amount. Hertz did not, however, ultimately purchase the property.

¶ 5. The County purchased the adjacent properties in 1997 and 1998. Then, in August 1999, it initiated negotiations to purchase Pinczkowski's property. It sent her a letter indicating an offer of $93,027 and explaining her eligibility for a replacement housing payment of $24,178.47, provided that she sold her house to the County for the offered amount.

¶ 6. After Pinczkowski rejected the County's $93,027 offer, the County acquired title to her property in November 2000 through eminent domain with an award of damages for $350,000. Pinczkowski challenged the amount of the award by bringing an action in circuit court, and the case was set for trial.

¶ 7. Prior to trial, the County brought a motion in limine to exclude certain evidence, and the circuit court made two key rulings that correspond to the issues now before us. First, the circuit court barred evidence of the price the County paid for its 1997 and 1998 purchases of the properties adjacent to Pinczkowski's property. The circuit court determined that the evidence was not admissible because the County purchased these properties in pursuit of the airport expansion project, with the right to acquire the property by eminent domain. Therefore, the circuit court reasoned that the sales were not arms-length transactions and thus not indicative of fair market value. Second, the circuit court barred evidence of the Hertz letter of intent, determining that it was conditional, non-binding, and speculative.

¶ 8. At trial, during Pinczkowski's testimony, her counsel sought to introduce evidence of the Hertz letter, including the letter itself but with the amount of the offer redacted. Counsel asserted that, despite the court's previous ruling, evidence of the fact of the Hertz letter was admissible to show that there was private interest in Pinczkowski's property for a specific purpose. She also sought to rely on the letter to show that when the County bought the adjacent properties, it ruined Hertz's plan to assemble Pinczkowski's property with adjacent property. The circuit court ruled the evidence inadmissible.

¶ 9. The jury determined the fair market value of Pinczkowski's property was $300,000, or $50,000 less than the County had paid pursuant to its award of damages. It also found that $15,000 should be deducted from Pinczkowski's award because of environmental conditions on the property. Thus, the verdict resulted in a net award of $285,000.

¶ 10. Meanwhile, Pinczkowski had purchased a new residence for $155,000 and sought to claim a replacement housing payment. The County denied her claim. Pinczkowski petitioned the state Department of Commerce for review. The department agreed with the County's decision. It explained that "the County paid Gloria C. Pinczkowski $350,000 for her property appraised at $93,027. It is our opinion that the 'financial means’ standard, COMM 202.01(20), has been met for determining if a comparable dwelling is affordable for an owner-occupant."

¶ 11. Pinczkowski then brought an action on the claim in circuit court that was consolidated with her award-of-damages case. After the jury trial in the award-of-damages case, the circuit court dismissed Pinczkowski's claim for the replacement housing payment on a County motion for summary judgment. The circuit court agreed with the County and department that Pinczkowski was not entitled to the payment.

¶ 12. Pinczkowski appealed both the judgment in the award-of-damages case and the judgment dismissing her claim for the replacement housing payment. She challenged the circuit court's determinations that the sale prices of the adjacent properties were inadmissible at trial, that evidence of the Hertz letter of intent was inadmissible, and that she was not entitled to a replacement housing payment.

¶ 13. The court of appeals affirmed the circuit court. It determined that clear precedent prohibits the introduction of the sale price of otherwise comparable properties when they are sold to a condemning authority engaged in negotiations to obtain property for a public project. The court of appeals agreed with the circuit court that the expired letter of intent submitted by Hertz was conditional and speculative. In addition, it determined that the exclusion of evidence of the letter was not prejudicial to Pinczkowski. The court of appeals also agreed with the department and circuit court that Pinczkowski was ineligible for a replacement housing payment.

¶ 14. Broadly stated, this case presents three issues for our review. Two issues involve evidentiary rulings and the third issue focuses on the interpretation of statutory and administrative code provisions.

¶ 15. We will uphold a circuit court's evidentiary rulings if it examined the relevant facts, applied a proper standard of law, used a demonstrated rational process, and reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Whether the circuit court applied the proper legal standards, however, presents a question of law subject to independent appellate review. See City of Madison v. DWD, 2003 WI 76, ¶ 10, 262 Wis. 2d 652, 664 N.W.2d 584. The interpretation of a statute or administrative code provision also presents a question of law, but may warrant deference when we review that question in the context of an agency decision. See Board of Regents v. State Personnel Comm'n, 2002 WI 79, ¶ 42, 254 Wis. 2d 148, 646 N.W.2d 759.

HH HH HH

¶ 16. We turn first to the issue of whether the circuit court erred in excluding evidence of the price for the 1997 and 1998 sales of the properties adjacent to Pinczkowski's property. In order to resolve this issue, we begin with an examination of a long-standing evi-dentiary rule pertaining to the exclusion of purchase prices paid by condemning authorities as evidence of fair market value. Based on that rule, we determine that evidence of the sale price for the adjacent properties was not admissible to show the fair market value of Pinczkowski's property. We also determine that regardless of whether the rule leaves room for an exception advanced by Pinczkowski, the facts here do not fit within that exception. Because the circuit court's ruling barred Pinczkowski's appraisers from relying on the sales, we address whether such reliance is a permissible use of the evidence in light of the long-standing rule, and we conclude that it is not.

A

¶ 17. This court recognized in Blick v. Ozaukee County, 180 Wis. 45, 46, 192 N.W 380 (1923), that "the price paid in settlement of condemnation proceedings, or the price paid by the condemnor for similar land, even if proceedings had not been begun, where the purchaser has the power to take by eminent domain, is not admissible." This general rule of inadmissibility is firmly rooted in market principles and logic:

What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business.... The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party or otherwise.

Blick, 180 Wis. at 46-47 (quoting 2 Lewis, Em. Dom. § 667 (3d ed.)).

If a sale is made to a condemnor that is about to institute proceedings if it cannot acquire the land by purchase at a satisfactory price, the amount paid is not a fair test of market value ....

Kirkpatrick v. State, 53 Wis. 2d 522, 526, 192 N.W.2d 856 (1972) (quoting what is now 4 Nichols on Eminent Domain, § 12B.07[2], at pp. 12B-44 to 12B-45 (3d ed. 2004)).

¶ 18. Thus, dealings between one who must buy and one who must sell are not probative of fair market value because such dealings do not, by definition, reflect fair market value. See Kirkpatrick, 53 Wis. 2d at 526. Fair market value is "the amount for which the property could be sold in the market on a sale by an owner willing, hut not compelled, to sell, and to a purchaser willing and able, but not obliged, to buy." Wis. JI — Civil 8100; accord Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 787, 580 N.W.2d 644 (1998) ("Fair market value is what a willing buyer would pay to a willing seller, neither being under compulsion.").

¶ 19. "The problem with evidence of sales of other land to the condemning authority is that the price may very well not be the fair market value of land, no matter how comparable the land may be in its physical aspects." Kirkpatrick, 53 Wis. 2d at 526. Consequently, as a general matter, "[s]ales to condemning agencies are deemed to be incompetent evidence of market value because of the threat of condemnation in lieu of voluntary purchase." 7A Nichols on Eminent Domain, § 9A.04[2][a], at p. 9A-39 (3d ed. 2004).

¶ 20. In addition, the general rule of inadmissibility is one of sound public policy and judicial economy. A different rule in condemnation proceedings would likely result in satellite litigation relating to the allegedly voluntary or involuntary nature of sales of other property. For each such sale, testimony by former property owners, their agents, the agents of the condemning authority, and other evidence would all be fair game as the basis for fact-intensive disputes in preliminary evidentiary proceedings.

¶ 21. In Kirkpatrick, we reaffirmed the rule in Blick. Kirkpatrick, 53 Wis. 2d at 526. Subsequently, in Herro v. DNR, 67 Wis. 2d 407, 432, 227 N.W.2d 456 (1975), we again upheld this long-standing rule, noting that "[t]he rule in Wisconsin on this issue is settled," and represents "[t]he great weight of authority" across jurisdictions. Herro, 67 Wis. 2d at 432 (quoting Blick, 180 Wis. at 46, for the latter proposition); see also J. H. Cooper, Annotation, Admissibility on Issue of Value of Real Property of Evidence of Sale Price of Other Real Property, 85 A.L.R.2d 110, § 10 (1962 updated to June 2, 2005, by Later Case Service).

¶ 22. Pinczkowski nonetheless asserts that the adjacent property sales here should be admissible as voluntary, arms-length transactions. This argument misses the mark. As both the court of appeals and the circuit court recognized, her attempt to characterize these particular sales as voluntary is semantic and ultimately unconvincing. While the sales may have been voluntary in the sense that the County had not yet commenced formal condemnation procedures under Wis. Stat. § 32.05 (2003-04), the sales were decidedly not voluntary in the sense relevant to the rationale of market-skewing behind the Blick line of cases.

¶ 23. The County's airport expansion plans dated back to 1987. At the time, there were numerous conferences and public workshops, and the County's plan was eventually detailed in its Airport Master Plan in April 1992. The Plan reflected an intent to acquire Pinczkowski's property and the two adjacent properties for uses related to airport expansion, and the Plan was approved by the County Board in 1993. In 1996, a consultant retained by the County continued to recommend acquisition of these properties for purposes of airport expansion. The County Board promptly resolved to adopt that recommendation and directed County officials to commence negotiations with the property owners.

¶ 24. Thus, the County's intent to acquire the adjacent properties for airport expansion purposes would have been well known by at least 1996. Indeed, Pinczkowski's attorney, in closing arguments to the jury, recognized as much:

By the early 1990s . .. [t]he county, in clear recognition of what is needed to grow the airport, developed and then approved a plan which made it clear to everyone that the destiny of the Pinczkowski property and its neighbors was to become part of General Mitchell International Airport.

The County's widely-known intentions would have skewed the market for the targeted properties, including the properties adjacent to Pinczkowski's, precisely the concern underlying the Blick rule.

¶ 25. Given the circumstances here, we have little trouble determining, as did the circuit court and court of appeals, that the sales of the adjacent properties could not have been "voluntary" for purposes of the admissibility of their sale prices. The County, a condemning authority, was in the process of obtaining land for purposes of airport expansion at the time it purchased the properties. Accordingly, under the Blick rule and rationale, evidence of the sale price for those properties was not admissible to show the fair market value of Pinczkowski's property.

¶ 26. Based on the facts already recited, we also reject Pinczkowski's argument that the Blick rule should not apply because the sales of the adjacent properties were not part of an ongoing project. Pincz-kowski asserts there was no ongoing project because the County had not issued a relocation order under § 32.05(1) for the adjacent properties.

¶ 27. Section 32.05(1) reads, in pertinent part:

(1) RELOCATION ORDER, (a) Except as provided under par. (b), a county board of supervisors ... shall make an order providing for the laying out, relocation and improvement of [an] .. . airport. .. which shall be known as the relocation order.

Thus, as a general matter, before the County can actually condemn property under § 32.05, it must issue a relocation order. See Wisconsin Town House Builders, Inc. v. City of Madison, 37 Wis. 2d 44, 52, 154 N.W.2d 232 (1967).

¶ 28. Nothing about § 32.05(1) or the rationale behind the Blick evidentiary rule, however, convinces us that compliance with § 32.05(1) is necessary to trigger the applicability of the Blick rule. The Blick rule may render evidence of sales to a condemning authority inadmissible even though the authority has not yet initiated formal condemnation procedures.

¶ 29. Here, the County's public expression of its intent to acquire the properties adjacent to Pinczkowski's property as part of its airport expansion plans, and its resolution directing officials to commence negotiations to acquire these properties, suffice to warrant inadmissibility under the Blick line of cases. The properties were purchased by a condemning authority in the process of obtaining land for a public project and were therefore purchased under threat of condemnation within the meaning of Blick. Accordingly, the circuit court properly exercised its discretion in determining that evidence of the sale price for the adjacent properties was inadmissible.

B

¶ 30. We turn next to Pinczkowski's argument that this court should enunciate an exception to the rule set forth in the Blick line of cases, or what she terms a "new rule for voluntary transactions." In support of this argument, Pinczkowski relies on a number of authorities which, she asserts, embody this exception or "new rule."

¶ 31. For example, Pinczkowski cites Cain v. City of Topeka, 603 P.2d 1031 (Kan. Ct. App. 1979). In that case, the Kansas Court of Appeals stated that:

the mere fact that the purchaser of land was invested with the power of eminent domain does not in and of itself indicate that the sale was anything other than a fair, arm's length transaction.... If the evidence is such as to indicate that an arm's length transaction occurred, then the rule [prohibiting admission] does not apply.

Cain, 603 P.2d at 1034 (citations omitted).

¶ 32. In addition, Finczkowski refers us to this statement in a leading treatise: "[T]he mere fact that a corporation, which purchased land by voluntary sale, was invested with the power of eminent domain does not in and of itself show that the sale was a compulsory settlement rather than a fair transaction in the market." 5 Nichols on Eminent Domain, § 21.02[6], at pp. 21-75 to 21-76 (footnote omitted); see also 5 Nichols on Eminent Domain, § 21.02[6], at p. 21-77 ("In general, the price [paid] by an entity having eminent domain power but not using that authority to acquire the property may be introduced to establish fair market value so long as the transaction was not influenced by any fear of litigation.").

¶ 33. We need not decide whether the Blick line of cases leaves room for the exception articulated by these authorities and characterized by Finczkowski as a "new rule" that this court should adopt. Even if it did, the facts here would not fall within such an exception.

¶ 34. The central tenet of the cited authorities is that the fact that a purchaser possesses the power to condemn does not by itself prove that the price of the sale should be inadmissible as incompetent evidence of fair market value. Here, however, we are confronted with much more than the fact that the County possessed the power of eminent domain at the time it purchased the adjacent properties.

¶ 35. As already explained, we are confronted with a case in which the County, through County Board action and other means, had publicly declared its intent to acquire the properties and in which the County Board had by resolution specifically directed County officials to commence negotiations for the acquisition of those properties. As such, they would not fit the exception or "new rule" as proposed by Pinczkowski.

C

¶ 36. The circuit court's ruling also prevented Pinezkowski's appraisers from relying on the sale price of the adjacent properties in forming their estimates of the value of Pinezkowski's property. We therefore address whether such reliance may be permissible despite the rule of inadmissibility under Blick.

¶ 37. In the condemnation context, "[t]he general rule regarding admission of comparable sales as direct evidence of value is more restrictive than the admissibility rule when the evidence is offered only to show a basis for the opinion of an expert witness." Kamrowski v. State, 37 Wis. 2d 195, 202, 155 N.W.2d 125 (1967). At the same time, however, "[s]ome evidence as to alleged comparable sales when offered even for this more limited purpose [of basis of opinion on value] may confuse or mislead the jury" and should therefore be excluded. Id. at 203; see also Calaway v. Brown County, 202 Wis. 2d 736, 741-42, 745, 553 N.W.2d 809 (Ct. App. 1996).

¶ 38. The general evidentiary rule pertaining to the basis for expert testimony is also relevant here. Under that rule, although an expert may rely on facts or data that are not themselves admissible, those facts or data must be of a type reasonably relied upon by experts in the particular field in forming opinions or inferences. Wis. Stat. § 907.03; Enea v. Linn, 2002 WI App 185, ¶ 16, 256 Wis. 2d 714, 650 N.W.2d 315.

¶ 39. We determine that, given the rationale behind the Blick line of cases, it makes no difference whether Pinczkowski sought to offer evidence of the sale price for the adjacent properties directly or whether she sought to have her appraisers rely on those prices as a basis for their estimates of value. The adjacent property sales were inherently unreliable indicators of market value and, in that sense, not comparable sales. Allowing evidence of the properties' sale prices would have been practically certain to confuse or mislead the jury. See Kamrowski, 37 Wis. 2d at 203; Calaway, 202 Wis. 2d at 741-42. Likewise, because of their inherent unreliability as an indicator of market value, such sales cannot constitute facts or data of a type reasonably relied upon by experts in the field in forming opinions or inferences. See § 907.03; Enea, 256 Wis. 2d 714, ¶ 16.

¶ 40. In sum, under the rule and rationale articulated in the Blick line of cases, evidence of the sale price for the adjacent properties was not admissible to show the fair market value of Pinczkowski's property, and Pinczkowski's appraisers could not rely on the sales of those properties. The circuit court therefore properly exercised its discretion in excluding evidence of the sale price for the adjacent properties.

IV

¶ 41. We next address the circuit court's eviden-tiary rulings barring evidence of Hertz's letter of intent, which reflected Hertz's interest in Pinczkowski's property. Prior to trial, Pinczkowski maintained that the amount of Hertz's offer should have been admitted. Pinczkowski has now accepted the circuit court's ruling that the amount was inadmissible hut continues to contend, as she did during trial, that evidence of the fact of the offer, without the amount of the offer, should have been admitted.

¶ 42. Both the court of appeals and circuit court correctly recognized that "[t]he general rule in condemnation cases is ... that offers to purchase property are not receivable as evidence of its market value." Fox Wisconsin Theatres, Inc. v. City of Waukesha, 253 Wis. 452, 456, 34 N.W.2d 783 (1948); see also 7A Nichols on Eminent Domain, § 9A.04[2][b], atp. 9A-41 ("Generally, unaccepted offers to purchase are not admissible to show fair market value.").

¶ 43. In certain situations, offers may nonetheless be admissible as evidence of fair market value "when made with actual intent and pursuant to actual effort to purchase." Fox, 253 Wis. at 456 (quoting Sammond v. Tax Commission, 230 Wis. 23, 40, 283 N.W. 452 (1939)). "In order to qualify as probative evidence, there must be a preliminary foundation of '[t]he bona fides of the offer, the financial responsibility of the offeror, and [the offeror's] qualifications to know the value of the property.' " Bihlmire v. Hahn, 31 Wis. 2d 537, 544-45, 143 N.W.2d 433 (1966) (quoting Fox, 253 Wis. at 458).

¶ 44. Hertz's letter of intent was speculative evidence of fair market value in light of its preliminary and conditional nature. This is apparent from the face of the letter. First, Pinczkowski failed to sign the letter before its expiration date. Second, the letter indicated that even if signed by Pinczkowski, it was non-binding. Third, the letter set forth contingencies, including inspection for environmental conditions and "all other necessary government approvals." It also contained numerous strike-outs, leaving unclear whether Hertz and Pinczkowski had a meeting of the minds, even as to this non-binding agreement. The circuit court aptly characterized the letter as speculative and "one step removed from an offer."

¶ 45. Pinczkowski nonetheless argues that the fact of Hertz's letter of intent, without reference to the amount of Hertz's offer, was admissible to show that there was a private market for her property for a particular use. She also contends it was relevant to show that when the County bought the adjacent properties, it ruined Hertz's plan to assemble Pinczkowski's property with adjacent property. In the same vein, she asserts that the letter would also have validated her appraisers' assemblage approach to valuation.

¶ 46. We recognize that the existence of a letter of intent from a third party may be relevant generally to show private interest in property for a particular use, whether standing alone or assembled in combination with another property. However, we are not persuaded by Pinczkowski's arguments that the circuit court erred in barring evidence of the letter.

¶ 47. Insofar as Pinczkowski was seeking to admit the evidence to establish a particular fair market value based on the existence of Hertz's letter of intent, the evidence was inadmissible under the rule articulated in Fox. While the threshold between offers that are admissible and those that are not may not always be clear under the principles of Fox, in this case it is plain that Hertz's letter of intent falls on the inadmissible side of the threshold. Moreover, the circuit court has broad discretion in making evidentiary rulings, and our inquiry into whether the court properly exercised that discretion is highly deferential. Martindale v. Ripp, 2001 WI113,246 Wis. 2d 67, 629 N.W.2d 698, ¶¶ 28-29.

¶ 48. To the extent that Pinczkowski was instead seeking to admit evidence of the Hertz letter to establish more generally her theory that there was a private interest in her property for a particular use, whether standing alone or assembled with other properties, she was able to put that theory fully to the jury without evidence of the letter. Even assuming arguendo that there was error, the trial record amply demonstrates that Pinczkowski would not have been prejudiced because she was otherwise able to put her theory of private party interest before the jury.

¶ 49. During opening statements, Pinczkowski's counsel told the jury, without objection by the County, that it would learn that Hertz had an interest in acquiring Pinczkowski's property. Under adverse examination, the airport director testified that Hertz and another rental car company were informed that they would need to relocate their service facilities.

¶ 50. At least one of Pinczkowski's appraisers testified that the zoning of her property would have permitted it to be used as a car rental facility. Similarly, the County appraiser testified that a rental car service facility would have been a potential use for Pinczkowski's property. Under cross-examination, the County's expert also acknowledged that Pinczkowski's property could have been combined with one of the adjacent properties to form a lot similar in size to the site that Hertz ultimately purchased.

¶ 51. Both of Pinczkowski's appraisers testified that they used the property that Hertz purchased as a comparable sale. They also testified that their estimates were based on assemblage theories of value.

¶ 52. During closing arguments, Pinczkowski's attorney reminded the jury that Hertz had been informed it would have to relocate. Counsel emphasized, again without objection by the County, that Hertz would have been a potential buyer for Pinczkowski's property and that Hertz may have been interested in combining properties. Finally, counsel underscored for the jury that "[e]ven [the County's appraiser] admitted that Hertz could have gotten exactly what it needed by simply combining the Pinczkowski property with the neighbor to the north." Thus, the jury became well acquainted with the theory that there was private interest in her property for a particular use, whether standing alone or assembled with other properties.

¶ 53. In sum, there was no error in the circuit court's exclusion of evidence of the Hertz letter. The letter was speculative evidence of fair market value. Even assuming arguendo that there was error, Pincz-kowski was not prejudiced because she was otherwise able to put her theory relating to private party interest in her property before the jury.

V

¶ 54. Finally, we must address the determination by the County, the department, the circuit court, and the court of appeals that Pinczkowski was not entitled to a replacement housing payment. Pinczkowski asserts that she was entitled to the replacement housing payment under Wis. Stat. § 32.19(4)(a).

¶ 55. Section 32.19 provides:

(4) Replacement housing, (a) Owner-occupants. In addition to amounts otherwise authorized by this sub-chapter, the condemnor shall make a payment, not to exceed $25,000, to any displaced person who is displaced from a dwelling actually owned and occupied ... by the displaced person for not less than 180 days prior to the initiation of negotiations for the acquisition of the property. ... Such payment includes only the following:
1. The amount, if any, which when added to the acquisition payment, equals the reasonable cost of a comparable replacement dwelling available on the private market, as determined by the condemnor.

¶ 56. The County's August 1999 letter to Pincz-kowski informed her that it was the County's "initiation of negotiations" for the purchase of her property and that the County was offering $93,027 as just compensation for her property. It also informed her that the cost of a comparable replacement dwelling was determined to be $77,926.47 and that the replacement housing payment was calculated to be $24,178.47.

¶ 57. Ordinarily, under Wis. Admin. Code. § Comm 202.68, a replacement housing payment to a person displaced from a dwelling is "the selling price of a comparable dwelling on a lot typical for the area, less the price of the acquired dwelling and the site." However, because Pinczkowski's property consisted of a lot that was larger than average in size and that had a higher and better use, the County calculated a "carve-out" for her property pursuant to § Comm 202.68(7)(a)2. and (7)(c).

¶ 58. The County thus separated out from the total offered amount of $93,027 an amount attributable to the residence plus the portion of Pinczkowski's land that represented a lot typical for the area. See § Comm 202.68(7)(a)2. and (7)(c). It calculated this amount to be $53,748. By then subtracting the $53,748 figure from the $77,926.47 cost of a comparable replacement dwelling, the County arrived at the $24,178.47 replacement housing payment.

¶ 59. Pinczkowski rejected the County's $93,027 offer and submitted an application for the replacement housing payment. Shortly after the date of Pinczkowski's application, the County made the $350,000 award of damages. It then denied her application for the replacement housing payment.

¶ 60. Pinczkowski petitioned the department for review of the County's denial of her claim. After the department issued a decision agreeing with the County's denial of the claim, Pinczkowski brought an action on the claim in circuit court. The circuit court dismissed the claim on summary judgment, and the court of appeals affirmed.

¶ 61. Recognizing that the circuit court decided her claim on summary judgment, Pinczkowski cites the standard of review for summary judgment in her brief, but she is otherwise silent on the matter of whose decision we should be reviewing and under what standard we should be reviewing it. The County, although not advancing a particular standard of review, has repeatedly emphasized in its brief and at oral argument that the department affirmed its decision that Pincz-kowski was not entitled to a replacement housing payment.

¶ 62. For reasons explained further below, we determine that, under the circumstances of this case, we will review the decision of the department. Such review implicates one of three levels of deference: great weight, due weight, or no weight. Board of Regents, 254 Wis. 2d 158, ¶ 42.

¶ 63. Great weight deference applies when (1) the agency is charged by the legislature with the duty of administering a statute; (2) the interpretation of the agency is one of long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996).

¶ 64. Due weight deference review, in turn, is not so much based upon an agency's knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question. Id. at 286.

¶ 65. We give no deference to an agency decision if the issue before the agency is clearly one of first impression, if a legal question is presented and there is no evidence of any special agency expertise or experience, or if the agency's position on an issue has been so inconsistent that it provides no real guidance. Coutts v. Wisconsin Ret. Bd., 209 Wis. 2d 655, 664, 562 N.W.2d 917 (1997).

¶ 66. The legislature, in Wis. Stat. § 32.26, has addressed the role and authority of the department in matters relating to eminent domain. It has specifically charged the department with a number of responsibilities relating to § 32.19, the relocation payment statute that is the source of Pinczkowski's claim. These responsibilities include that the department shall promulgate rules to implement and administer § 32.19; may make investigations to determine whether a condemnor is complying with § 32.19 and may seek a court order requiring compliance; shall prepare pamphlets for con-demnees, in cooperation with the attorney general; and shall provide technical assistance on relocation plan development. See § 32.26.

¶ 67. Under Wis. Admin. Code § Comm 202.18, promulgated pursuant to the department's legislatively granted authority, see Wis. Admin. Code § Comm 202.001, a claimant may file a "relocation appeal" with the department, which may proceed on such an appeal in a number of ways. Similarly, § 32.26(5) provides that a person claiming a replacement housing payment may petition the department for review. The claimant may also seek initial review of the condemning authority's denial of a claim directly in circuit court under § 32.26(5) and Wis. Stat. § 32.20.

¶ 68. Here, Pinczkowski chose to seek initial review with the department. Specifically, after the County denied Pinczkowski's claim, Pinczkowski filed a "Petition and Appeal for Denial of Relocation Claim for Replacement Housing Payment" with the department "pursuant to § 32.26(5) and Wis. Admin. Code § Comm 202.18." The County submitted a letter brief in response to the petition, Pinczkowski submitted her own brief in response to the County's, and the County subsequently submitted a reply brief. After the briefing, the department issued a written determination under § Comm 202.18(3).

¶ 69. Given the legislature's charge to the department, the statutory and administrative scheme for seeking review, the technical nature of the carve-out provisions, and the particular circumstances of this case, we determine that we will review the department's determination, and that we will give that determination deference. We need not decide whether to give great weight deference or due weight deference to the department's determination because we conclude that its determination was reasonable and that Pinczkowski's interpretation of the relevant statutory and administrative code provisions is no more reasonable. Applying even due weight deference, a reviewing court will not overturn a reasonable agency interpretation unless the court determines that there is a more reasonable interpretation. UFE Inc., 201 Wis. 2d at 287.

¶ 70. In the department's written decision, it cited Wis. Admin. Code § Comm 202.01(20) and concluded that Pinczkowski was not entitled to a replacement housing payment because "[t]he sum of the acquisition price and the replacement housing payment for the acquired dwelling exceeds the acquisition price of the replacement dwelling."- Section Comm 202.01(20), in turn, reflects the applicable standard in § 32.19(4)(a)l., which provides that the replacement housing payment consists of "[t]he amount, if any, which when added to the acquisition payment, equals the reasonable cost of a comparable replacement dwelling...." (Emphasis added.) Obviously, the acquisition price (or payment) for Pinczkowski's property, whether taken to be the $350,000 in her award of damages or the $285,000 as found by the jury, far outstrips both the undisputed $77,926.47 cost of a comparable replacement dwelling and the $155,000 cost of the replacement home she actually purchased.

¶ 71. It is not readily apparent from the face of the carve-out provisions in the administrative code whether or how the initially proffered $24,178.47 replacement housing payment should have been recalculated in light of the $350,000 award of damages that Pinczkowski received or the $285,000 the jury awarded. Additionally, we note that the record does not reflect what portion of the $285,000 the jury attributed to "the acquired dwelling" or to "that portion of the acquired land which represents a lot typical for the area." Section Comm 202.68(7)(a)2.; see also § Comm 202.68(7)(c).

¶ 72. What is apparent, however, is that any calculation based on the carve-out provisions must be guided by the statutory standard defining the type of replacement housing payment Pinczkowski seeks. It is "[t]he amount, if any, which when added to the acquisition payment, equals the reasonable cost of a comparable replacement dwelling...." Section 32.19(4)(a)l. (emphasis added). This is the standard the department applied, and when we examine that standard in light of the facts presented here, we cannot say that the department's application of the standard was unreasonable.

¶ 73. Pinczkowski asserts that there is no basis for changing the initial carve-out value or for recalculating the original amount of the replacement housing payment associated with the County's $93,027 offer in its August 1999 letter. We disagree.

¶ 74. First, the letter makes the $24,178.47 replacement housing payment contingent upon the acceptance of the $93,027 offer. It states, in relevant part:

A. Replacement Housing Payment

This payment has been determined to be $24,178.47, based on a comparable housing study of houses presently for sale on the real estate market, provided you sell your house to Milwaukee County for the above stated appraisal amount, which included a carve-out amount of $53,748.00, and you purchase a replacement dwelling which costs at least $77,926.47.

(Emphasis added.) Pinczkowski's assertion that the County is forever bound by the initial offer of a replacement housing payment is undermined by the clear language of the letter.

¶ 75. Second, both statutory and administrative code provisions contemplate that the initial offer of a replacement housing payment is not static in amount. Rather, these provisions contemplate a more dynamic approach, allowing for re-computation of the payment after the acquisition damages have been more fully assessed.

¶ 76. Under § 32.20, all claims for damages itemized in § 32.19 are ordinarily to be filed "after the damages upon which they are based have fully materialized but no later than 2 years after the condemnor takes physical possession ...." (Emphasis added.) Additionally, § Comm 202.68(6) provides as follows:

(6) Advance payment in a condemnation case. An agency shall promptly pay a replacement housing payment. An advance payment shall be made when an agency determines the acquisition payment will be delayed because of condemnation proceedings. An agency's maximum offer shall be used as the acquisition price for calculating the payment. The payment shall be contingent on a person signing an affidavit of intent that:
(a) The agency shall re-compute a replacement payment using the acquisition amount set by the court ....

(Emphasis added.)

¶ 77. Given all the circumstances here, and given that Pinczkowski has not adequately explained how the facts of record support her interpretation of the carve-out formulas to yield a fixed replacement housing payment that could not change after the County's initial offer and calculation, we determine that Pinczkowski's application of the relevant statutory and administrative code provisions is no more reasonable than that of the department. We therefore uphold the department's determination that Pinczkowski was not entitled to a replacement housing payment.

VI

¶ 78. In sum, we determine that the circuit court properly excluded evidence of the sale price of the adjacent properties because the sales were to a condemning authority in the process of obtaining property for a public project. In addition, we determine there was no circuit court error in excluding evidence of the letter of intent because it was speculative evidence of fair market value, and we observe that Pinczkowski was otherwise able to put her theory of private party interest before the jury. Finally, we uphold the department's determination that Pinczkowski was not entitled to a replacement housing payment. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        See Pinczkowski v. Milwaukee County, 2004 WI App 171, 276 Wis. 2d 520, 687 N.W.2d 791 (affirming judgments of the circuit court for Milwaukee County, Michael D. Guolee, Judge). Case number 2003AP1732 involves a challenge to the compensation ultimately paid for the acquisition of Pinczkowski's property. That case resulted in a judgment against Pinczkowski because the jury found the just compensation due Pinczkowski was less than the County paid. Case number 2003AP2127 involves Pinczkowski's claim for a replacement housing pay-

       Wisconsin Admin. Code § Comm 202.01(20)(a) (March 1997) provides:
      (a) Owner-occupant. The acquisition price of the comparable replacement dwelling does not exceed the sum of the payment for the acquired dwelling and the comparable replacement housing payment available under this chapter.
      All references to Wis. Admin. Code ch. Comm 202 are to the March 1997 register, the most recent version of this code chapter.

       At oral argument, counsel for Pinczkowski acknowledged as much: "If I could write the script of how this should be played out... [i]deally I would want this presented in a hearing associated with a motion in limine in which all of the information could be brought forward by either party on the degree of voluntariness or the opposite...." (Emphasis in original remarks.)

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

       Pinczkowski cites other authorities for similar rules. See Transwestern Pipeline Co. v. O'Brien, 418 F.2d 15, 19 (5th Cir. 1969); Slattery Co. v. United States, 231 F.2d 37, 41 (5th Cir. 1956); Amory v. Commonwealth, 72 N.E.2d 549, 559 (Mass. 1947).

       Wisconsin Stat. § 907.03 provides:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not he admissible in evidence.

       The airport director also testified specifically as to Hertz's interest in Pinczkowski's property, but the County immediately objected, and the circuit court instructed the jury to disregard this testimony. Similarly, when Pinczkowski testified that Hertz had contacted her, the court told the jury to disregard the testimony after the County objected.

       Pinczkowski also argues that evidence of Hertz's letter of intent would have validated her experts' approach to choice of comparables. According to Pinczkowski, the letter helps show why her appraisers relied on Hertz's eventual purchase of another property and would have lent more credence to her appraisers' estimates of value. The court of appeals declined to address this argument because Pinczkowski did not raise it in the circuit court. We agree with the court of appeals that this argument should be deemed waived. See Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980).

       The payment may include amounts for other items, which we have not enumerated here. See generally Wis. Stat. § 32.19(4)(a). As we understand the parties' arguments, such other items are not at issue in this case.

       Wisconsin Admin. Code § Comm 202.68(7), provides:

        (7) Carve-out and modification of replacement payment com- . putation. (a) Complete acquisition. . ..
      2. Larger than typical size lot. The maximum replacement payment shall be the price of a comparable dwelling on a lot typical for the area, less the price of the acquired dwelling plus the price of that portion of the acquired land which represents a lot typical for the area, when the acquired dwelling is located on a lot size larger than typical for the area.
      (c) Dwelling on land with higher and better use. The maximum replacement payment shall be the selling price of a comparable dwelling on a lot typical in the area, less the price of the acquired dwelling, and the price of that portion which represents a lot typical for residential use in the area, when the market value is based on a higher and better use than residential.

       Wisconsin Admin. Code § Comm 202.18 reads as follows:
      Relocation appeal. A displaced person, or one claiming to be displaced, may file a complaint for review by the department under this subsection.

        (2) Appeal to displacing agency. An agency shall establish an internal appeal procedure to resolve a relocation complaint....
      (3) Appeal to department. A displaced person may file an appeal to the department. The department shall:
      (a) Receive and consider all relocation complaints filed under this chapter;
      ft)) Provide a written notice to the displacing agency within five working days of receipt of a complaint, including a copy of the complaint;
      (c) Request that an agency or a displaced person provide materials or documentation pertinent to a complaint and shall specify a time to provide the materials;
      (d) Promptly notify the parties of a dispute when the department determines that a complaint is unreasonable, including the reasons;
      (e) Schedule an informal meeting with the parties when necessary to resolve a dispute. The meeting shall be scheduled as soon as practicable and he held in the county where displacement occurred or another mutually agreed location;
      (f) Provide a written determination when necessary to resolve a dispute;
      (g) Notify the parties within 90 days after an informal meeting when an acceptable solution cannot be negotiated.

       Wisconsin Stat. § 32.26(5) reads:
      Any displaced person may, prior to commencing court action against the condemnor under s. 32.20, petition the department of commerce for review of his or her complaint, setting forth in the petition the reasons for his or her dissatisfaction. The department may conduct an informal review of the situation and attempt to negotiate an acceptable solution. If an acceptable solution cannot be negotiated within 90 days, the department shall notify all parties, and the petitioner may then proceed under s. 32.20. The informal review procedure provided by this subsection is not a condition precedent to the filing of a claim and commencement of legal action pursuant to s. 32.20.. ..

       Wisconsin Stat. § 32.20 reads:
      Claims for damages itemized in ss. 32.19 and 32.195 shall he filed with the condemnor carrying on the project through which condemnee's or claimant's claims arise. All such claims must be filed after the damages upon which they are based have fully materialized but not later than 2 years after the condemnor takes physical possession of the entire property acquired or such other event as determined by the department of commerce by rule. If such claim is not allowed within 90 days after the filing thereof, the claimant has a right of action against the condemnor carrying on the project through which the claim arises. Such action shall be commenced in a court of record in the county wherein the damages occurred....

       Again, as previously noted, the payment may include amounts for other items not at issue here.

       Pinczkowski also asserts that the County was equitably estopped from denying her replacement housing claim. We agree with the court of appeals, however, that Pinczkowski has not met the elements of equitable estoppel. For the reasons stated above, she could not have reasonably relied on the County's August 1999 letter as guaranteeing a fixed housing payment.


source: Caselaw Access Project

author: PER CURIAM. LOUIS B. BUTLER, JR., J.

license: Public Domain

text:
    In the Matter of the Mental Commitment of Aaron J.J.: Sauk County, Petitioner-Respondent, v. Aaron J. J., Respondent-Appellant-Petitioner.
    Supreme Court

      No. 2003AP3349.

      Oral argument September 27, 2005.

      Decided December 1, 2005.

    2005 WI 162
    (Also reported in 706 N.W.2d 659.)

      For the respondent-appellant-petitioner there were briefs by Antonette H. Laitsch and Laitsch, Zion & Laitsch, S.C., Madison, and oral argument by Antonette H. Laitsch.

    For the petitioner-respondent there was a brief and oral argument by Chad A. Hendee, corporation counsel.
    An amicus curiae brief was filed by Mary Dianne Greenley, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc.
   PER CURIAM.

¶ 1. Aaron J. J. petitioned this court for review of an unpublished court of appeals decision affirming a circuit court order that denied his motion to vacate an order committing him for treatment under Wis. Stat. ch. 51. Aaron presented one issue in his petition: Was his constitutional right to due process violated when the circuit court accepted a stipulation that grounds existed for an involuntary mental commitment under ch. 51 without conducting a colloquy to ensure a knowing, intelligent, and voluntary agreement to the commitment?

¶ 2. After examining the record, along with the briefs of the parties and of amicus Wisconsin Coalition for Advocacy, Inc., and after hearing oral argument, we have determined that some questions which may be essential to the proper resolution of this case were either not addressed or not sufficiently presented by the briefing and argument. These questions include: What statutory provision or other law is the source of the stipulated procedure that the parties followed in the circuit court? If the subject of an involuntary ch. 51 commitment proceeding must knowingly, intelligently, and voluntarily waive the right to a final hearing, and if the circuit court record does not demonstrate such waiver, what is the proper procedure to be followed by circuit and appellate courts to determine whether the waiver was knowing, intelligent, and voluntary? If it is determined that the waiver was not knowing, intelligent, and voluntary, what are the consequences of such a determination?

¶ 3. In addition, we note that this case implicates a potential issue of mootness. At oral argument, the parties made clear what the record did not: Aaron is no longer subject to a commitment order. Although mootness is not necessarily a bar to a decision by this court in light of the mootness exceptions, the apparent lack of a live controversy adds to our concerns here.

¶ 4. Accordingly, we determine that review in this case was improvidently granted, and we dismiss the petition for review.

By the Court. — The review of the decision of the court of appeals is dismissed as improvidently granted.

LOUIS B. BUTLER, JR., J.

¶ 5. {dissenting). I agree with the per curiam opinion that some of the questions which may be essential to the proper resolution of this case were either not addressed or not sufficiently presented by the parties' briefs and oral arguments. I also agree that this case implicates a potential issue of mootness. Nevertheless, because of the important liberty interests that are concerned here for people suffering from a mental illness, and because I am uncertain of the source of any statutory authority for a so-called "voluntary commitment" procedure, I would order supplemental briefs in this matter. Accordingly, I respectfully dissent.

       The mootness exceptions include that:
      the issues are of great public importance; the constitutionality of a statute is involved; the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; the issue is likely to arise again and should be resolved by the court to avoid uncertainty; or, a question is capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties.

        G.S. v. State, 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984)); see also Shirley J. C. v. Walworth County, 172 Wis. 2d 371, 375, 493 N.W.2d 382 (Ct. App. 1992).

         See Wis. Stat. §§51.10 (voluntary admission of adults), 51.13 (admission of minors), 51.15 (emergency detention), and 51.20 (involuntary commitment for treatment). All references are to the 2003-04 Wisconsin Statutes.


author: JON P WILCOX, J.

text:
    Connie Anne Shaw, Plaintiff-Appellant, v. Greg Leatherberry, Roger L. Finch and Amy Elve, Defendants-Respondents.
    Supreme Court

      No. 2003AP2316.

      Oral argument October 7, 2005.

      Decided December 6, 2005.

    2005 WI 163
    (Also reported in 706 N.W.2d 299.)

      For the plaintiff-appellant there were briefs (in the court of appeals) by A. Steven Porter and Porter, Jablonski & Associates, S.C., Madison, and oral argument by A. Steven Porter

    For the defendants-respondents there were briefs by John M. Moore, Sheila M. Sullivan and Bell, Gier-hart & Moore, S.C., Madison, and oral argument by Sheila M. Sullivan.

    An amicus curiae brief was filed by Mark J. Steichen and Boardman, Suhr, Curry & Field, LLP, Madison, on behalf of the Civil Trial Counsel of Wisconsin.
    An amicus curiae brief was filed (in the court of appeals) by Jeff Scott Olson and the Jeff Scott Olson Law Firm, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers and the Wisconsin Employment Lawyers Association, and there was oral argument by Jeff Scott Olson.

    An amicus curiae brief was filed (in the court of appeals) by G. Michael Halfenger and Foley & Lardner LLP, Milwaukee, and Laurence J. Dupuis, Milwaukee, on behalf of the American Civil Liberties Union of Wisconsin Foundation, Inc., and there was oral argument by G. Michael Halfenger.

   JON P WILCOX, J.

¶ 1. This case comes to us on certification from the court of appeals. The appellant, Connie Anne Shaw (Shaw), appealed an order of the Circuit Court for Dane County, Gerald C. Nichol, Judge, denying Shaw's motion for a new trial, and from the court's decision at trial imposing the middle burden of proof — clear and convincing evidence — on the liability questions put to the jury in the special verdict.

¶ 2. The court of appeals certified the following question: What standard of proof applies to cases alleging excessive use of force by the police brought pursuant to 42 U.S.C. § 1983 (1994 & Supp. Ill 1998) in Wisconsin courts?

¶ 3. We conclude that the Supremacy Clause of the United States Constitution requires Wisconsin courts to apply the lowest burden of proof— preponderance of the evidence — in civil rights actions under 42 U.S.C. § 1983, alleging excessive use of force by police personnel. As such, we reverse the order of the circuit court, and remand for a new trial on the issue of liability.

hH

¶ 4. In the early morning hours of January 17, 1998, Shaw was the victim of a hit-and-run accident on the Capitol Square in Madison. As Shaw exited her vehicle to survey the damage, the other vehicle drove away. Shaw pursued the car around the Square to the 600 block of West Washington Avenue, whereupon a female driver and two other female passengers exited their vehicle. Shaw also left her car, and before she could say anything, the other driver punched her in the face. A fight ensued, and eventually Shaw's attackers got back into their vehicle and sped away.

¶ 5. Shaw chased the other vehicle back around the Square and down East Washington Avenue at speeds of up to 80 miles per hour. Shaw stated that she had hoped to spot a police officer along the way for help. Eventually, they ended up in a commercial business parking lot. Although she thought she could go to jail for her actions, she chased the occupants of the vehicle around the lot and rammed the other vehicle with her car. The police later arrived at the scene, and Shaw was arrested by Officer Carrie Hemming. Shaw was then taken to the Dane County Jail to be booked on charges of criminal damage to property and reckless endangerment of safety.

¶ 6. Deputy Sheriff Greg Leatherberry (Leather-berry) was the booking deputy on duty that night. Leatherberry testified that Shaw was cooperative and quiet at times, while at other times she was angry, loud, and noncompliant. As part of the booking process, Leatherberry asked Shaw some standard medical questions. Shaw told Leatherberry that she had post-traumatic stress disorder. Furthermore, Leatherberry testified that when he asked Shaw if she was contemplating suicide, she did not immediately answer him. When he asked a second time, Shaw exclaimed: 'You're God damn right I am!" Leatherberry then asked the normal follow-up question of if she had ever thought about how she would try to commit suicide. Shaw started to say something about how a person could "stuff," but she never completed the answer. This triggered Leatherberry's recollection of an incident in the prison where a person had committed suicide by stuffing a sock in his mouth. Based on everything Shaw told him, Leatherberry made the decision to strip Shaw of her clothing.

¶ 7. Leatherberry handcuffed Shaw and escorted her to a segregation cell in the female housing area. Deputy Roger Finch (Finch) was waiting at the holding cell when Leatherberry and Shaw arrived. Because Shaw was female, Deputy Amy Elve (Elve) was summoned to assist. When asked to remove her clothing voluntarily, Shaw refused, and Leatherberry told her that the deputies would be forced to remove her clothing. Shaw denies ever being given the opportunity to voluntarily remove her clothing in the sole presence of Elve.

¶ 8. Shaw testified that Leatherberry threw her across a cement block bunk, where she struck a cement block wall and fell face-first on the bunk. She also testified that Leatherberry put his knee in the back of her neck and jerked her handcuffed hands up so that her arms were perpendicular to her body. The deputies proceeded to remove her clothes, and Shaw stated that Finch, who was holding the door of the cell open, stood in the doorway grinning at her. After her clothing had been removed, Shaw was given a jail smock to wear. Shaw testified that Leatherberry's actions caused her great pain and emotional distress, and Finch and Elve did not attempt to intervene to prevent Leatherberry from using excessive force, though they had the opportunity to do so.

¶ 9. The deputies, on the other hand, testified that Shaw's head never hit the wall, Leatherberry never put his knee on her, and no one pulled her handcuffed arms up. Leatherberry testified that he used the necessary force to remove her clothing given Shaw's physical resistance.

¶ 10. Shaw filed an action in Dane County Circuit Court on November 4, 1998, which alleged four claims for relief: (1) that the deputies subjected her to an illegal strip search under Wis. Stat. § 968.255 (1997-98); (2) that the deputies tortiously assaulted and battered her; (3) that the deputies deprived her of her rights to be free from an illegal strip search and subjection to excessive force as guaranteed by the Fourteenth Amendment of the United States Constitution and made actionable pursuant to 42 U.S.C. § 1983; and (4) that Dane County and the Sheriff of Dane County negligently trained the deputies. In regard to her § 1983 claim, Shaw claimed deprivations of her constitutional rights by Leatherberry's alleged use of excessive force and by Elve and Finch's failure to intervene on her behalf while Leatherberry mistreated her.

¶ 11. On October 23, 2000, the defendants moved for summary judgment. In an order dated February 13, 2001, the court granted summary judgment and dismissed each of Shaw's claims except for her claim that she was subjected to excessive force under 42 U.S.C. § 1983.

¶ 12. On May 9, 2002, the deputies moved for summary dismissal of the complaint as they had not been personally identified or served. At the hearing on the motion to dismiss, Shaw's counsel failed to appear, and the circuit court granted the motion. Shaw moved to reopen and to amend her complaint to include the names of the individual deputies — Leatherberry, Finch, and Elve. On May 22, 2002, the court vacated the dismissal and granted Shaw leave to amend her complaint.

¶ 13. The jury trial was held from May 19 to May 22, 2003. The circuit court utilized an amended version of Wisconsin Jury Instruction-Civil 2155 entitled "Excessive Force in Maintaining Jail Security Federal Civil Rights: § 1983 Action" as agreed upon by the parties, except with respect to the appropriate burden of proof on the issue of liability. Over Shaw's objection, the court used the middle burden of proof contained in Wisconsin Jury Instruction-Civil 205 for the liability questions in the special verdict. On the question of damages, the jury was instructed on the lower burden of proof. Shaw argued that the jury should have been instructed on the lower burden of proof for each question in the special verdict. The court was sympathetic to Shaw's position, but it felt obligated to follow the law in Wisconsin as articulated in cases such as Johnson v. Ray, 99 Wis. 2d 777, 299 N.W.2d 849 (1981) and Wirsing v. Krzeminski, 61 Wis. 2d 513, 213 N.W.2d 37 (1973), which stated that in civil claims alleged against police officers for excessive force, the proper standard is the middle burden of proof.

¶ 14. At one point, the jury reported to the judge that it was "at a block" on the question relating to Leatherberry's liability. However, after nearly five hours of deliberation in total, the jury later returned a verdict of 11-1 in favor of Leatherberry and Elve on the issue of liability, and 10-2 in favor of Finch on the issue of liability. In regard to damages, the jury voted 11-1 that Shaw should receive no money for past medical expenses; pain, suffering and disability; or future medical expenses. However, the jury was unanimous in its decision to award Shaw $5000 in damages for mental pain and emotional distress.

¶ 15. Shaw filed a motion for a new trial claiming, in part, that the circuit court erred by instructing the jury that she had to establish liability under the middle burden of proof. In an order filed on July 17, 2003, the circuit court denied Shaw's motion for a new trial. The court stated that under Wisconsin law, the middle burden of proof is used in excessive force cases involving police officers. It also noted that the burden of proof is appropriately higher for police officers in assault cases because they are privileged to use force under some circumstances.

HH HH l-H

¶ 16. Preliminarily, we note that jurisdiction of § 1983 actions does not rest exclusively in federal courts. See Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980) ("Any doubt that state courts may also entertain such actions was dispelled by Martinez v. California, 444 U.S. 277, 283-84, n.7 (1980)."). Prior to this conclusive statement of the United States Supreme Court, this court had held that Wisconsin state courts have jurisdiction to decide actions based upon § 1983. Terry v. Kolski, 78 Wis. 2d 475, 479, 254 N.W.2d 704 (1977). Indeed, "there are no longer any state court systems that refuse to hear § 1983 cases[,]" and "[sítate courts have emerged in recent years as the forum of choice for an increasing number of plaintiffs suing state and local defendants under ... § 1983." Steven H. Steinglass, Section 1983 Litigation in State Courts § 1:1, at 1-1,1-4 (2002).

¶ 17. The issue of what burden of proof is appropriate in a § 1983 action alleging excessive force in state court is a matter of first impression before this court. "Determination of the appropriate burden of proof in this case presents a question of statutory interpretation, a question of law which this court determines independently of other courts, benefiting from their analyses." Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 658, 529 N.W.2d 905 (1995). "Statutory interpretation is a question of law that we review de novo." State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis. 2d 484, 697 N.W.2d 769 (citing Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 9, 267 Wis. 2d 59, 671 N.W.2d 633).

IV

¶ 18. Shaw contends that the circuit court erroneously instructed the jury that she had to establish liability under the middle burden of proof — clear and convincing evidence — as detailed in Wisconsin Jury Instruction — Civil 205. Shaw further asserts that the lower burden of proof — preponderance of the evidence —contained in Wisconsin Jury Instruction — Civil 200 was the proper burden of proof in a § 1983 state court action alleging excessive force by the police. The deputies, on the other hand, argue that the circuit court utilized the proper burden of proof as established under this court's prior case law. We agree with Shaw that the preponderance of the evidence standard should have been used, and we remand on the issue of liability. We do not remand on the issue of damages, as the jury properly considered damages under the lower burden of proof.

¶ 19. The circuit court relied on Wisconsin Jury Instruction — Civil 2155 in concluding that the middle burden of proof was required in this case on the issue of liability. Specifically, the Comment to this jury instruction suggests that in cases alleging excessive force under § 1983, the middle burden of proof is appropriate on the special verdict questions of whether excessive force was used and whether such force caused injury to the plaintiff. See Wis JI — Civil 2155 (citing Johnson, 99 Wis. 2d 777; Wirsing, 61 Wis. 2d 513).

¶ 20. The decisions relied upon by the circuit court involved civil tort actions alleging assault and battery by the police. Johnson, 99 Wis. 2d at 781; Wirsing, 61 Wis. 2d at 519. Although the appropriate burden of proof was not the central issue in these decisions, this court observed that in tort actions alleging excessive force of a police officer, the plaintiff must satisfy the jury "by a clear and satisfactory preponderance of the evidence." Johnson, 99 Wis. 2d at 783 (citing Wirsing, 61 Wis. 2d at 520).

¶ 21. The heightened burden of proof would have been appropriate if this case arose under state tort law. However, Shaw's claim that the deputies tortiously assaulted and battered her was dismissed on summary judgment. The sole cause of action tried was Shaw's claim under § 1983 that the deputies' actions deprived her of her federal constitutional rights. As such, the proper focus of the analysis is determining the burden of proof under § 1983 and not the burden of proof under state tort law.

¶ 22. To be sure, there is no explicit burden of proof contained within the text of § 1983. In such a case "[w]here Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, [the Supreme Court] must prescribe one." Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983).

¶ 23. The deputies argue that there is no controlling federal authority establishing the burden of proof to be used for § 1983 claims alleging excessive use of force. However, there is clear authority that federal courts consistently require plaintiffs to prove their § 1983 claims under the lower burden of proof — a preponderance of the evidence. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 594 (1998).

¶ 24. As a general matter, the Supreme Court has recognized that "[i]n a typical civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence." Huddleston, 459 U.S. at 387. The burden of proof "serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Tex., 441 U.S. 418, 423 (1979). Specifically, the "preponderance-of-the-evidence standard allows both parties to 'share the risk of error in roughly equal fashion.'" Huddleston, 459 U.S. at 390 (quoting Addington, 441 U.S. at 423).

¶ 25. The Supreme Court applies a clear and convincing level of proof "where particularly important individual interests or rights are at stake." Id. at 389 (citing Santosky v. Kramer, 455 U.S. 745 (1982) (proceeding to terminate parental rights); Addington, 441 U.S. at 418 (involuntary commitment proceeding); Woodby v. INS, 385 U.S. 276, 285-86 (1966) (deportation)). "By contrast, imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence." Id. at 389-90 (citing United States v. Regan, 232 U.S. 37, 48-49 (1914)). The Huddleston Court concluded that "[t]he interests of defendants in a securities case do not differ qualitatively from the interests of defendants sued for violations of other federal statutes such as the antitrust statute or civil rights laws, for which proof by a preponderance of the evidence suffices." Id. at 390 (emphasis added).

¶ 26. Turning to a § 1983 case, in Crawford-El, a "litigious and outspoken" prison inmate serving a life sentence brought suit under § 1983 against a corrections officer alleging that the officer deliberately misdirected boxes containing legal materials and other personal belongings of his when he was transferred among various prisons. Crawford-El, 523 U.S. at 578. The prisoner claimed, in part, that the officer "deliberately misdirected the boxes to punish him for exercising his First Amendment rights and to deter similar conduct in the future." Id. The district court dismissed Crawford-El's claims, in part, because "the First Amendment retaliation claim did not allege direct evidence of unconstitutional motive." Id. at 581 (internal quotes omitted). The Court of Appeals, District of Columbia Circuit, sitting en banc, reviewed the dismissal of the First Amendment retaliation claim. Id. The primary opinion concluded that "unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant." Id. at 583.

¶ 27. The United States Supreme Court recognized that the heightened burden of proof in improper motivation cases was the court of appeals' attempt to address the problem of "insubstantial claims" and the concerns the court had "with the social costs of subjecting public officials to discovery and trial, as well as liability for damages." Id. at 584-85. Nevertheless, the Crawford-El Court concluded that "[n]either the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself." Id. at 594. From this determination, the Court rejected the court of appeals' requirement of a higher burden of proof on § 1983 litigants. Id. "The unprecedented change made by the Court of Appeals in this case [] lacks any common-law pedigree and alters the cause of action itself in a way that undermines the very purpose of § 1983 — to provide a remedy for the violation of federal rights." Id. at 594-95.

¶ 28. In our view, the Court's decision in Crawford-El would not have been any different in an excessive force context. That is, the clear and convincing evidence burden of proof undermines the remedial purpose of § 1983 just as much in an excessive force case as it does in a case such as Crawford-El, which concerned the failure to deliver a prison inmate's legal papers.

¶ 29. In excessive force cases arising under § 1983, the Seventh Circuit has tacitly approved the preponderance of the evidence standard. In McNair v. Coffey, for example, the Seventh Circuit recognized that "a § 1983 case is not a criminal prosecution, and the preponderance standard applies to civil claims of all sorts." McNair v. Coffey, 234 F.3d 352, 355 (7th Cir. 2000), vacated on other grounds by 533 U.S. 925 (2001), overruled on remand McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002). See also Stone v. City of Chicago, 738 F.2d 896, 900-01 (7th Cir. 1984) (analyzing jury instruction that utilized the preponderance of the evidence standard in an excessive force case arising under § 1983). Indeed, even looking beyond the Seventh Circuit, we have found many federal appellate decisions that utilize an ordinary civil burden of proof in § 1983 excessive force cases.

¶ 30. All told, our review of federal law leads us to the conclusion that if Shaw had brought this cause of action in federal court, the appropriate burden of proof would have been the lower civil burden.

¶ 31. The issue then becomes which burden of proof to apply in a § 1983 cause of action alleging excessive force in state court. The United States Supreme Court has recognized that "[j]ust as federal courts are constitutionally obligated to apply state law to state claims, [citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)] so too the Supremacy Clause imposes on state courts a constitutional duty 'to proceed in such manner that all the substantial rights of the parties under controlling federal law [are] protected.'" Felder v. Casey, 487 U.S. 131, 151 (1988) (quoting Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1942)). Inasmuch as the burden of proof is substantive, we hold that under the Supremacy Clause, the lower federal burden of proof applies in § 1983 excessive force cases in state court.

¶ 32. In Garrett, the plaintiff, an injured seaman, filed an action for damages in state court under a federal admiralty law. Garrett, 317 U.S. at 240. The trial court utilized the higher burden of proof under state law. Id. at 242. The Pennsylvania Supreme Court affirmed, determining that although federal law controlled the cause of action, the burden of proof is a procedural and not substantive rule. Id. Therefore, the court concluded that the burden of proof was controlled by state law. Id. The United States Supreme Court reversed. Id. at 249.

¶ 33. The Court first made it clear that federal substantive law applied. "We do not have in this case an effort of the state court to enforce rights claimed to be rooted in state law. The petitioner's suit rested on asserted rights granted by federal law and the state courts so treated it." Id. at 243. Thus, because the cause of action arose under federal law "[t]he source of the governing law applied is in the national, not the state, governments." Id. at 245. The Court went on to state:

If by its practice the state court were permitted substantially to alter the rights of either litigant, as those rights were established in federal law, the remedy afforded by the State would not enforce, but would actually deny, federal rights which Congress, by providing alternative remedies, intended to make not less but more secure. The constant objective of legislation and jurisprudence is to assure litigants full protection for all substantive rights intended to be afforded them by the jurisdiction in which the right itself originates.... [I]n trying this case the state court was bound to proceed in such manner that all the substantial rights of the parties under controlling federal law would be protected.

Id. at 245.

¶ 34. The Court concluded by determining that, as a general proposition, the burden of proof is a substantive aspect of the cause of action. "The right of the petitioner to be free from the burden of proof imposed by the Pennsylvania local rule inhered in his cause of action.. . . [I]t was a part of the very substance of his claim and cannot be considered a mere incident of a form of procedure." Id. at 249. See also Raleigh v. III. Dept. of Revenue, 530 U.S. 15, 20-21 (2000) ("Given its importance to the outcome of cases, we have long held the burden of proof to be a 'substantive' aspect of a claim.") (citing Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 271 (1994); Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 446 (1959); and Garrett, 317 U.S. at 249). Thus, because the burden of proof is substantive and the cause of action arose under federal law, the Court held that the lower federal burden of proof applied. Id.

¶ 35. This case differs from Garrett in two respects. First, the cause of action arises under a federal civil rights statute and not a federal admiralty statute. Second, the state court improperly shifted the burden of proof from the defendant to the plaintiff, as opposed to applying the wrong burden. However, we see no reason why the principles elicited in Garrett should not apply with equal vigor to a § 1983 excessive force cause of action in state court where a heightened burden of proof was imposed on the plaintiff. See Felder, 487 U.S. at 138 ("[W]here state courts entertain a federally created cause of action, the 'federal right cannot he defeated by the forms of local practice.'") (quoting Brown v. Western Ry. of Ala., 338 U.S. 294, 296 (1949)).

¶ 36. Thus, the burden of proof is a substantive aspect of this § 1983 claim. See Raleigh, 530 U.S. at 20-21. As such, when the circuit court exercised its concurrent jurisdiction over the federally created cause of action, it was required under the Supremacy Clause to instruct the jury on the lower burden of proof, a clear attribute of a § 1983 cause of action.

¶ 37. However, even if the burden of proof were not a substantive aspect of the cause of action, federal law would still preempt Wisconsin law in this instance because a higher burden of proof is inconsistent with § 1983's purposes of compensation and deterrence. In other words, the higher burden of proof utilized in state tort law causes of action is not "consistent with the goals of the federal civil rights laws, [and] instead ' "stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." '" Felder, 487 U.S. at 138 (quoting Perez v. Campbell, 402 U.S. 637, 649 (1971) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941))).

¶ 38. In Felder, the Court held that Wisconsin's notice of claim statute was preempted by federal law in § 1983 actions in state Court. Id. at 138. The Felder court noted that under the Supremacy Clause, " 'the relative importance to the State of its own law is not material when there is a conflict with a valid federal law,' for 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'" Id. (quoting Free v. Bland, 369 U.S. 663, 666 (1962)). With this concept in mind, the Court ultimately held the following:

Because the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of § 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the § 1983 action is brought in state court.

Id. Thus, under the Felder analysis we now analyze whether a higher burden of proof in this context impermissibly interferes in its purpose and effects with the remedial objectives of § 1983 or is outcome-determinative.

¶ 39. Section 1983 originated in § 1 of the Civil Rights Act of 1871. Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 503 (1982). "The 1871 Congress intended § 1 to 'throw open the doors of the United States courts' to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights[.]" Id. at 504 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 46 (1871) (remarks of Rep. Lowe)). Indeed, "[t]he very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.'" Mitchum v. Foster, 407 U.S. 225, 242 (1972) (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)). "Thus, § 1983 provides 'a uniquely federal remedy against incursions ... upon rights secured by the Constitution and laws of the Nation, Mitchum, 407 U.S. at 239, and is to be accorded 'a sweep as broad as its language.' United States v. Price, 383 U.S. 787, 801 (1966)." Felder, 487 U.S. at 139.

¶ 40. With this broad sweep, § 1983 seeks to "deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)). The Supremacy Clause ensures that any state law forms, practices, and procedures that interfere with these purposes of the federal civil rights law are preempted. See Felder, 487 U.S at 138. The Supreme Court, in turn, closely scrutinizes any policy that undermines the remedial purpose of § 1983. See Crawford-El, 523 U.S. at 594-95 (rejecting the imposition of a heightened burden of proof in a § 1983 action by an inmate alleging an interference with the right of access to the courts against a prison official). Indeed, the Crawford-El Court recognized that "the heightened standard of proof directly limits the availability of the remedy." Id. at 595 n.16. If a federal court is not at liberty to undermine the remedial purposes of § 1983 through a heightened burden of proof, we conclude that the Supremacy Clause preempts our state courts from imposing a higher burden of proof in § 1983 actions.

¶ 41. Another aspect of the Felder Court's preemption analysis concerned whether the state law was outcome-determinative in § 1983 litigation depending on whether the action was brought in state or federal court. Felder, 487 U.S. at 138. The Court determined that Wisconsin "may not alter the outcome of federal claims it chooses to entertain in its courts by demanding compliance with outcome-determinative rules that are inapplicable when such claims are brought in federal court." Felder, 487 U.S. at 152. In other words, "[a] law that predictably alters the outcome of § 1983 claims depending solely on whether they are brought in state or federal court within the same State is obviously inconsistent with [the] federal interest in intrastate uniformity." Id. at 153. See also, Casteel v. Vaade, 167 Wis. 2d 1, 13, 481 N.W.2d 277 (1992).

¶ 42. Although we conclude that a higher burden of proof in state court in this instance may not necessarily affect the outcome of every case, it does disrupt the federal interest in uniformity. Furthermore, allowing different burdens of proof for the same action, based solely on where the action is brought, would be discriminatory against Wisconsin plaintiffs, and would, in effect, violate the purposes of § 1983.

¶ 43. Thus, even if we set aside the fact that the burden of proof is a substantive aspect of the cause of action, when we consider the purposes and objectives of the federal civil rights law, the application of the higher burden of proof in state court actions in this particular context is inconsistent with § 1983 and is therefore preempted under the Supremacy Clause.

¶ 44. Finally, we must determine the appropriate remedy in this case. This court's decision in Bengston v. Estes, is clear:

In Carle v. Nelson, 145 Wis. 593, 130 N.W 467 (1911), we said that a party upon whom an instruction has cast a greater burden than the law requires can justly complain thereof when the answer is unfavorable to him and an erroneous instruction as to the burden of proof upon a material issue must be deemed to affect the substantial rights of the party. We adhered to this principle in Heineman v. Old Nat. Bank, 157 Wis. 289, 147 N.W. 360 (1914), and reaffirm it now.

Bengston v. Estes, 260 Wis. 595, 600, 51 N.W.2d 539 (1952). We again follow this principle here. In this case, however, the court properly instructed the jury on the lower burden of proof in determining the amount of damages. Thus, there is no basis for granting the plaintiff a new trial for damages, and we remand solely on the issue of liability.

V

¶ 45. In sum, we conclude that the Supremacy Clause of the United States Constitution requires Wisconsin courts to apply the lowest burden of proof— preponderance of the evidence — in civil rights actions under 42 U.S.C. § 1983, alleging excessive use of force by police personnel. As such, we reverse the order and judgment of the circuit court, and remand for a new trial on the issue of liability.

By the Court. — The circuit court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

       Section 1983 of Title 42 of the United States Code states:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
      42 U.S.C. § 1983 (1994 & Supp. Ill 1998).

       "This Constitution, and the laws of the United States which shall be made in pursuance thereof;. .. shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." U.S. Const, art VI, cl.2.

       The negligence claim was voluntarily abandoned by Shaw.

       For each individual deputy, the special verdict first asked the jury if Deputy Leatherberry used excessive and unnecessary force against Shaw or if Deputies Finch and Elve failed to act in violation of Shaw's right not to be subjected to excessive or unreasonable force. Only if the jury answered in the affirmative did it reach the second question of whether the individual deputy's conduct caused harm to Shaw.

       Because the jury found in favor of each defendant on the question of excessive force or failure to intervene, it did not answer the question of causation for any of the defendants.

       On the question of whether the defendants were acting under color of state law, the Comment states that the lower burden of proof is appropriate. See Wis JI — Civil 2155.

       The Committee on Federal Civil Jury Instructions for the Seventh Circuit recently drafted a series of proposed pattern jury instructions, including an instruction for excessive force cases under § 1983 alleged by an arrestee or pretrial detainee. The instruction states in part: "In this case, Plaintiff claims that Defendant used excessive force against him. To succeed on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence:.. . ." Fed. Civ. Jury Instructions of the 7th Cir. § 7.08 (2005).

        See, e.g., Davis v. Rennie, 264 F.3d 86, 105 (1st Cir. 2001); Kerman v. City of N.Y., 261 F.3d 229, 243 n.10 (2d Cir. 2001);
        Rogala v. Dist. of Columbia, 161 F.3d 44, 58 (D.C. Cir. 1998); Tatro v. Kervin, 41 F.3d 9, 14-15 (1st Cir. 1994); Zuchel v. City & County of Denver, Colo., 997 F.2d 730, 735 (10th Cir. 1993); Miller v. Taylor, 877 F.2d 469, 471 n.2 (6th Cir. 1989); Wing v. Britton, 748 F.2d 494, 496 (8th Cir. 1984).

       Act of Apr. 20, 1871, ch.22, § 1, 17 Stat. 13 ("An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.").

       Although Shaw did not object to the jury's damage award in the trial court, she now asks this court to remand on all issues, including damages, in the interests of justice. Because we believe the increased burden of proof on liability did not affect the amount of damages awarded to the plaintiff for her injuries, we do not remand on this issue.