author: PER CURIAM SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    Warner Jackson, Jennifer Evans, Wendell Harris, The Reverend Andrew Kennedy, Rabbi Isaac Serotta, Ceil Ann Libber, Father Thomas J. Mueller, Reverend John N. Gregg, Diane Brewer, Colleen Beaman, Mary Morris, Penny Morse, Kathleen Jones and Philip Jones, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners. Milwaukee Teachers' Education Association, by its President, M. Charles Howard, Michael Lengyel, Donald Lucier, Tracy Adams, Milwaukee Public Schools Administrators and Supervisors Council, Inc., by its Executive Director, Carl A. Gobel, People for the American Way, by its Executive Vice President and Legal Director, Elliott M. Minceberg, John Drew, Susan Endress, Richard Riley, Jeanette Robertson, Vincent Knox, Bertha Zamudio, James Johnson, Robert Ullman and Sally F. Mills, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners. National Association for the Advancement of Colored People, Felmers O. Chaney, Lois Parker, on behalf of herself and her minor child, Rashaan Hobbs, Derrick D. Scott, on behalf of himself and his minor children, Deresia C.A. Scott and Desmond L.J. Scott, Constance J. Cherry, on behalf of herself and her minor children, Monique J. Branch, Monica S. Branch, and William A. Branch, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction of Wisconsin, in his official capacity, Defendant-Appellant.
    Supreme Court

      No. 97-0270.

      Filed February 19, 2002.

    2002 WI 14
    (Also reported in 639 N.W.2d 545.)
   PER CURIAM

¶ 1. Four of the twenty-nine plaintiffs-respondents in Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), cert. denied, 525 U.S. 967 (1998), move this court to vacate its decision of June 10, 1998, upholding the constitutionality of the state's amended Milwaukee Parental Choice Program (MPCP). As grounds for their motion, the four respondents assert that they recently received new information that this court's decision was rendered by an improperly constituted panel because of the participation of a justice disqualified by law. The respondents seek to reinforce their motion by noting that the school choice issue is currently pending before the United States Supreme Court on a similar constitutional challenge to an Ohio school choice program. See Zelman v. Simmons-Harris, 234 F.3d 945 (6th Cir. 2000), cert. granted, 533 U.S. _ (No. 00-1751). Oral argument in Zelman is scheduled for February 20, 2002. The respondents assert that at least three parties to this court's decision in Jackson v. Benson who support school choice have submitted amicus briefs to the United States Supreme Court and are likely to have cited Jackson v. Benson as persuasive authority.

¶ 2. We dismiss the respondents' motion because it is untimely and frivolous as a matter of law. More than 1300 days have passed since this court issued its decision in Jackson v. Benson. More importantly, more than 600 days have passed since the information advanced by respondents in support of their disqualification claim became publicly known. Inasmuch as motions such as this constitute an attack on the integrity of this court's decisions, they must be brought promptly. This one was not. Respondents' inordinate and unexplained delay in raising the disqualification issue in a timely fashion constitutes a waiver of whatever objections they may have had in this regard and lead us to the conclusion that the motion to vacate is frivolous.

I — I

¶ 3. We set forth the significant facts surrounding Jackson v. Benson and respondents' claims that Justice Jon E Wilcox should not have participated in the decision.

¶ 4. The constitutionality of the amended MPCP has been before this court on two occasions. In 1996 this court heard argument in an original action. On March 29, 1996, this court split three-three over the constitutionality of the amended MPCP with Justice Wilcox voting to uphold it. State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 720, 546 N.W.2d 140 (1996). The case was remanded to Dane County Circuit Court, which later found the statute unconstitutional.

¶ 5. On April 1, 1997, Justice Wilcox won a ten-year term on this court, defeating Milwaukee attorney Walter Kelly by a margin of 185,437 votes. On April 3, 1997, two days after the election, there was a press report that an anonymous group of individuals had spent an estimated $135,000 to print and mail as many-as 450,000 postcards to support Justice Wilcox's election. In April 1997 Mark Block, the campaign manager for the Justice Wilcox for Justice Campaign (JWJC), admitted to the public that he had been contacted in January and March by the group that sent the postcards, but he did not identify the group. The names of the persons who gave the money were not revealed at that time, nor was it revealed that the donors were school choice proponents.

¶ 6. On June 16, 1997, an organization called The Wisconsin Coalition for Voter Participation (WCVP) was identified as the group that coordinated the postcard mailing. On July 30, 1997, the State Elections Board voted unanimously to investigate the anonymous mass mailing. The investigation ultimately revealed that WCVP made disbursements and incurred obligations of approximately $200,000 on mailings and telephone calls to targeted voters.

¶ 7. On August 22, 1997, the court of appeals, in a two-one decision, affirmed an order of the circuit court for Dane county, Paul B. Higginbotham, Judge, finding the amended MPCP unconstitutional. Jackson v. Benson, 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997). The majority of the court of appeals concluded that the amended MPCP was invalid under Article I, Section 18 of the Wisconsin Constitution because it directed payments of money from the state treasury for the benefit of religious seminaries. This court granted the state's petition for review on October 14, 1997. In late December 1997 the WCVP filed a lawsuit seeking to halt the investigation into possible ties between the group and the Wilcox campaign.

¶ 8. This court heard oral argument in Jackson v. Benson on March 4, 1998. The court issued its decision on June 10, 1998. Justice Steinmetz authored the majority opinion reversing the court of appeals. Justices Wilcox, Geske, and Crooks joined the majority opinion. Chief Justice Abrahamson and Justice Bablitch dissented. Justice Bradley did not participate. On June 26,1998, intervenors/respondents Parents For School Choice, et al., filed a motion for clarification of the opinion, so that for a time a post-decision motion was pending before this court. The motion was subsequently withdrawn. On November 9, 1998, the United States Supreme Court denied certiorari review.

¶ 9. In November 1999 the court of appeals allowed the State Elections Board to proceed in its investigation of the connection between the WCVP mailing and the Wilcox campaign, affirming the circuit court's dismissal of the WCVP's lawsuit to halt the investigation and have the mailing declared legal. Coalition for Voter Participation v. Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999), review denied, 231 Wis. 2d 377, 607 N.W.2d 293 (1999).

¶ 10. On March 22, 2000, the State Elections Board unanimously adopted the following motion:

MOTION: TO EXPRESS THE SENSE OF THE ELECTIONS BOARD THAT JUSTICE JON WILCOX DID NOTHING ILLEGAL AND WAS NOT PERSONALLY RESPONSIBLE FOR ANY ILLEGAL ACTIVITIES OF HIS CAMPAIGN FOR THE OFFICE OF JUSTICE OF THE SUPREME COURT, THE ELECTION FOR WHICH WAS HELD IN APRIL 1997;...

¶ 11. In the spring of 2000 the identities of the persons who contributed to the WCVP became publicly-known.

¶ 12. On March 20, 2001, the civil action brought by the State Elections Board against the JWJC and campaign manager Mark Block ended with a monetary settlement, stipulation, and order for dismissal. In a statement attached to the stipulation, Justice Wilcox stated:

Last March the State Elections Board stated that it was the sense of the Board that I did nothing illegal and was not personally responsible for any illegal activities of my campaign. However, the Board's investigation has implicated my campaign manager and others in violations of the state's campaign finance law. I choose not to contest this. I acknowledge that I had a responsibility for the conduct of campaign staff. Therefore, as the candidate, I am funding my campaign committee so that the committee can pay a monetary penalty to settle this matter.

¶ 13. On January 9, 2002, respondents filed their motion to vacate the Jackson v. Benson decision, claiming that the facts set forth above demonstrate that Justice Wilcox was disqualified by law from participating in the case.

¶ 14. The general rule is that, after remittitur, the supreme court has no jurisdiction to vacate or modify its judgment. Ott v. Boring, 131 Wis. 472, 110 N.W. 824 (1907). Where a justice who participated in a case was disqualified by law the court's judgment in that case is void. Case v. Hoffman, 100 Wis. 314, 72 N.W. 390, reh'g granted 74 N.W. 220 (1898). We have previously stated, "[a]n attack on the validity of a judgment of the state's highest court on the ground of a member's disqualification by law for an apparent inability to act impartially is not, nor can we conceive of it ever being, a 'routine matter.'" State v. American TV & Appliance, 151 Wis. 2d 175, 192, 443 N.W.2d 662 (1989). We have also said, however, that it behooves the court in the defense of its own legitimacy and of its integrity to consider a party's claim that a decision may be void because a justice should not have participated in the case. City of Edgerton v. General Cas. Co., 190 Wis. 2d 510, 527 N.W.2d 305 (1995).

¶ 15. The chronology of events in this case demonstrates that the respondents were on notice by the spring of 2000 as to the identity of the donors to WCVP and their support of the school choice issue. Instead of bringing their motion at that time, the respondents remained silent for almost another two years, raising their disqualification objection on the eve of the United States Supreme Court's oral argument in another case raising the issue of the constitutionality of a private school voucher program.

¶ 16. Although respondents claim "it was not until a few months ago that information was made public casting a shadow on the 1997 supreme court election and highlighting the role of money in that election from the advocates for the defendants in a pending case," the record amply demonstrates that all information arguably pertinent to any disqualification issue in the case was publicly known by the spring of 2000. By failing to raise the issue in a timely fashion, respondents waived whatever objections they may have had to Justice Wilcox's participation in the court's decision.

¶ 17. We came to a similar conclusion in City of Edgerton. In that case Edgerton Sand & Gravel, Inc., (ES&G) moved to vacate this court's decision or, in the alternative, moved for a rehearing in the matter. Edg-erton Sand & Gravel, Inc., argued that Justice Geske improperly participated in the case. At the outset of oral argument, Justice Geske stated on the record that the previous night she noted for the first time that one of the companies listed in the appendix to an amicus brief was St. Paul Companies, the employer of Justice Geske's husband. Justice Geske stated she did not believe that fact presented any conflict and it would not influence her. She informed the parties that if anyone had any objections to her sitting on the case, she would appreciate hearing from them by letter by the end of the week.

¶ 18. No objection was raised by any of the parties until a non-party, Kenosha Auto Transport (KAT), raised the question of Justice Geske's participation in a proposed amicus brief KAT tendered to the court in support of a motion for reconsideration filed over seven months later. The motion to file an amicus brief was denied and the movants' request to seek Justice Geske's disqualification was dismissed. More than two months later ES&G filed a motion to vacate the decision, arguing that Justice Geske was disqualified under Wis. Stat. § 757.19(2) and (3) from participating in the original decision and asking for the vacation of the decision or, in the alternative, for rehearing without Justice Geske's participation. Edgerton Sand & Gravel, Inc., argued that Justice Geske's disclosure about her connection with St. Paul Companies had been incomplete.

¶ 19. The Edgerton court noted that the disqualification statute provides that any disqualification "may be waived by agreement of all parties and the judge after full and complete disclosure on the record of factors creating the disqualification." Wis. Stat. § 757.19(3). The Edgerton court found it significant that ES&G did not argue that Justice Geske's disclosure and her setting of a time limit to object or to waive objection to her participation in the case was not a proper procedural framework for the waiver of disqualification. Instead, ES&G argued Justice Geske's disclosure was not sufficient and did not constitute a "full and complete disclosure." The Edgerton court said:

We conclude that under the circumstances of this case the disclosure made by Justice Geske was sufficient— that all the facts necessary for counsel to determine whether to assert or waive any disqualification were either disclosed or were readily obtainable of record prior to the "weekend deadline" suggested by Justice Geske. Following that disclosure, if ES&G had been concerned, it could have examined the financial disclosures Justice Geske had filed with the Ethics Board and if those disclosures did not satisfy ES&G in respect to Justice Geske's financial ties to St. Paul Companies, it could have asked for more information from her or could have advised her "by the end of the week" that it objected to her participation.
If ES&G's counsel examined the public record, it apparently did not deem the information in it sufficient to pursue the disqualification issue. Now, however, ES&G's substituted counsel asserts that Justice Geske's disqualification was required on the basis of inferences it makes from that information. Clearly, ES&G waived any possible disqualification by not acting by the "end of the week" and for one year following oral argument.
Even after the court's decision on June 16,1994 — after learning that Justice Geske was the scrivener for the court — ES&G's counsel did not raise the question of Justice Geske's qualification to sit but asserted in its reconsideration motion only that the court had failed to follow what counsel considered controlling law. Despite the fact that ES&G had been served with a copy of KAT's proposed amicus motion and brief raising the disqualification issue, it did not join in KAT's motion or express to the court in its motion for reconsideration on the merits any position in respect to disqualification.
Hence, we conclude that on at least two discrete occasions, ES&G's counsel failed to make any objection to Justice Geske's participation. These successive waivers in themselves bar ES&G from asserting its motion for vacatur at this time, months after it could have informed itself of the facts on which its motion is based and made any concern known to the court.

Id. at 518-19.

¶ 20. The same analysis applies with even greater force in this case. Although there was no judicial disclosure here, the basic facts upon which the respondents now rely in raising the issue of Justice Wilcox's participation were readily available as of the spring of 2000. Yet respondents did not raise the disqualification issue at that time; indeed, their inaction continued for almost another two years.

¶ 21. Not until January 9, 2002, twenty-one months after the identity of the donors to WCVP became publicly known, did respondents file a motion to vacate the. decision. Respondents' delay in bringing the motion mandates a finding of waiver. Although respondents claim the motion was filed in January of 2002 because of "new information," this court has searched the entire record and found nothing "new." Instead, all of the facts arguably pertinent to the disqualification claim were well known in the spring of 2000.

¶ 22. The respondents' inordinate delay in filing the motion to vacate mocks the fundamental and vital principle of finality, which is essential to the operation of a society governed by law. See Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 342, 259 N.W.2d 515 (1977). Motions such as this, having the potential to undermine the public's trust and confidence in the legitimacy of this court's decisions and the integrity and impartiality of this court as an institution, are very serious indeed, and, accordingly, must be raised in a timely fashion.

II

¶ 23. The State of Wisconsin and Marquelle Miller, et al., ask this court to assess reasonable attorney fees and costs against respondents and their counsel pursuant to Wis. Stat. § 809.25(3). We agree that the extraordinary untimeliness of the motion to vacate justifies a finding of frivolousness. The fact that the motion was filed a mere six weeks before the scheduled oral argument of another state-funded private school voucher case in the United States Supreme Court calls the timing of and motives behind the respondents' motion into question.

¶ 24. We conclude that the motion to vacate, coming as it did almost two years after the public disclosure of the information pertinent to the respondents' claims and shortly before oral argument in the United States Supreme Court, was filed in bad faith, for improper purpose, to undermine the public's confidence in the legitimacy of this court's decision and the integrity of this court as an institution. The seriousness of a motion of this sort is not an excuse for tardiness in bringing it; to the contrary, the gravity of this type of motion compels that it be timely brought to ensure a prompt resolution. The only reasonable inference that can be drawn from the inordinate untimeliness and suspect timing of this motion is that it was brought in bad faith for improper purpose. Any other conclusion would seriously undermine the concept of frivolousness. We grant the motions of the state and Marquelle Miller, et. al., for an award of reasonable attorney fees and costs incurred in responding to the motion to vacate. We remand the matter to the Dane County Circuit Court for a determination of the amount of reasonable attorney fees and costs.

¶ 25. JON E WILCOX and ANN WALSH BRADLEY, JJ., did not participate.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 26. (concurring in part, dissenting in part). I join only Part I of the court's opinion. I do not join Part II of the opinion remanding the matter to the Dane County-Circuit Court to determine the amount of reasonable attorney fees and costs for a frivolous action. This proceeding ought to end now.

       Carl A. Gobel, Warner Jackson, Father Thomas J. Mueller, and Wendell Harris.

       Respondents contend that Justice Jon E Wilcox was disqualified under Wis. Stat. § 757.19(2) and (3) (1999-2000), which provides:
      (2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
      (a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
      (b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
      (c) When a judge previously acted as counsel to any party in the same action or proceeding.
      (d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
      (e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
      (f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
      (g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.

        (3) Any disqualification that may occur under sub. (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
      All subsequent statutory references to the Wisconsin Statutes are to the 1999-2000 volumes unless otherwise indicated.

       The vote totals were 476,900 for Justice Wilcox and 291,463 for Attorney Kelly. State of Wisconsin Blue Book at 870 (1997-98).

       Cary Segall, Expense for Wilcox Goes Unreported, WISCONSIN State Journal, April 3, 1997.

       The respondents did not file any post-decision motion at this time.

       Cary Segall and Andy Hall, Big, Out-of-State Donors Weighed In For Court Case, Wisconsin State JouRnal, March 19, 2000; Cary Segall and Andy Hall, Wilcox Backers Revealed, GOP School-Choice Supporters Funded Secret Effort, Wisconsin State Journal, April 20, 2000.

       Wisconsin Stat. § 809.25(3) provides:
      (3) Frivolous appeals, (a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees and reasonable attorney fees under this section. A motion for costs, fees and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief, or if a cross-appeal is filed, the cross-respondent's brief.
      (b) The costs, fees and attorney fees awarded under par. (a) may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
      (c) In order to find an appeal or cross-appeal to be frivolous under par. (a), the court must find one or more of the following:
      The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
      The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not he supported by a good faith argument for an extension, modification or reversal of existing law.
      Although the state and Marquelle Miller seek costs and attorneys fees under § 809.25(3), we note that § 802.05(l)(a) provides, in pertinent part,
      . . . The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If the court determines that an attorney or party failed to read or make the determinations required under this subsection before signing any petition, motion or other paper, the court, may, upon motion or upon its own initiative, impose an appropriate sanction on the person who signed the pleading, motion or other paper, or on a represented party, or on both. The sanction may include an order to pay to the other party the amount of reasonable expenses incurred by that party because of the filing of the pleading, motion or other paper, including reasonable attorney fees.
      Section 809.84 provides: [a]n appeal to the court is governed by the rules of civil procedure as to all matters not covered by these rules unless the circumstances of the appeal or the context of the rule of civil procedures requires a contrary result.

        We thus consider the state's and Marquelle Miller's motions under both §§ 802.05(l)(a) and 809.25(3).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Iran Shuttlesworth, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-2980-CR.

      Oral argument November 9, 2001.

    Decided January 18, 2002.

    2002 WI 3
    (Also reported in 638 N.W.2d 279.)

      For the defendant-appellant-petitioner there were briefs by Mia Sefarbi and Law Offices of Steven M. Epstein, Milwaukee, and oral argument by Mia Sefarbi.

    For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   PER CURIAM.

¶ 1. Petitioner Iran Shuttles-worth (Shuttlesworth) appeals from a court of appeals' decision, affirming both his judgment of conviction on two counts of kidnapping and four counts of first-degree sexual assault following a jury trial and an order denying his postconviction motion. We accepted review on the issue of whether the circuit court erred in admitting expert testimony regarding DNA match evidence without requiring supporting probability statistics. Shuttles-worth contends that state statute and governing case law require the State to submit probability statistics in support of DNA evidence, and because the State failed to provide the necessary statistical predicate, the DNA match evidence was inadmissible.

¶ 2. In particular, Shuttlesworth relies on Wis. Stat. § 972.11(5)(b)(1997-98), which provides:

In any criminal action or proceeding, the evidence of a deoxyribonucleic acid profile is admissible to prove or disprove the identity of any person if the party seeking to introduce evidence of the profile complies with all of the following:
2. If the other party so requests at least 30 days before the date set for trial, or at any time if a date has not been set for trial, provides the other party within 15 days after receiving the request with all of the following:
b. The laboratory protocols and procedures followed.

Shuttlesworth claims that the State violated this statutory provision by failing to disclose at the time of trial the protocol and procedures that allowed its expert to conclude, to a reasonable degree of scientific certainty, that Shuttlesworth was the source of the DNA sample at issue.

¶ 3. Wisconsin Stat. § 972.11(5) was repealed by 2001 Wis. Act 16, § 4003t, effective August 31, 2001. Because this case necessitates an interpretation of a statute that is now repealed, we conclude that the appeal in this case was improvidently granted, and dismissal is therefore appropriate.

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

¶ 4. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE and DIANE S. SYKES, J., did not participate.


author: PER CURIAM. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin ex rel. Ruven George Seibert, Petitioner-Petitioner, v. Phillip Macht, Director, Wisconsin Resource Center and Circuit Court for Outagamie County, Respondents.
    Supreme Court

      No. 99-3354-W.

      Filed February 8, 2002.

    2002 WI 12
    (Also reported in 639 N.W.2d 707.)
   PER CURIAM.

¶ 1. Respondents Phillip Macht and the Circuit Court for Outagamie County move this court for reconsideration of its opinion in State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, for the limited purpose of revising or correcting sentences in two paragraphs of the court's opinion.

¶ 2. The motion for reconsideration is denied without costs. However, having carefully considered the respondents' arguments, the court makes the following revisions:

(1) Paragraph 12, beginning with the fourth sentence, is revised to read:

An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant. However, such a person has the same constitutional rights as a criminal defendant at trial. This is recognized in Wis. Stat. § 980.05(lm), which provides: "All constitutional rights available to a defendant in a criminal proceeding are available to the person." We think it follows that an individual committed under Chapter 980 has a constitutional right of counsel in bringing his or her first appeal as of right, emanating from both the Fourteenth Amendment's Equal Protection Clause and the Due Process Clause as well as the Sixth Amendment's right of counsel.

Footnote 3 is retained, and the remainder of paragraph 12 is not changed.

(2) The seventh sentence of paragraph 19 is revised by removing the clause, "While the State urges us to subject Seibert to this procedural hurdle under Strickland," so that it reads: "We note that Strickland is applicable only where an individual is represented by counsel." Footnote 6 is retained but revised to read:

The Supreme Court observed in Smith v. Robbins, 528 U.S. 259, 286 (2000), that "[t]he applicability of Strickland's actual-prejudice prong to Robbins's claim of ineffective assistance follows from Penson, where we distinguished denial of counsel altogether on appeal, which warrants a presumption of prejudice, from mere ineffective assistance of counsel on appeal, which does not."

¶ 3. Accordingly, the motion for reconsideration is denied without costs.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 4. (concurring). I agree that the State's motion for reconsideration in this case should be denied and that the opinion should be clarified. I write to place the court's corrections in the context of the State's motion for reconsideration.

¶ 5. The State requested two corrections:

¶ 6. First, the State requested that the reference to Wis. Stat. § 980.05 in paragraph 12 of the opinion be deleted as a basis for finding that Seibert has a constitutional right to counsel on his first appeal as a matter of right. The State gives three reasons for this correction:

(1) The last sentence in § 980.05(lm) may, but need not, be interpreted as applicable only to trial. The State therefore requests that this court not define the scope of § 980.05(lm) without discussing all the possible interpretations of the section and explaining why one interpretation is adopted rather than another potential interpretation.
(2) The way in which the court cites § 980.05(lm) suggests that the court views the statute as creating constitutional rights. The State argues that this interpretation of the statute appears to be inconsistent with State v. Smith, 229 Wis. 2d 720, 731, 600 N.W.2d 258 (Ct. App. 1999), in which the court of appeals characterizes § 980.05(lm) as creating statutory rights.
(3) If § 980.05(lm) creates only a statutory right to counsel, its citation is inconsistent with Part III of the opinion that makes Anders v. California, 386 U.S. 738 (1967), applicable to ch. 980 appeals.

¶ 7. The correction the court adopts makes clear, as the State requested, that a ch. 980 individual has a constitutional, in contrast to a statutory, right of counsel in bringing his or her first appeal as a matter of right.

¶ 8. Second, the State requested the correction that the court adopts in paragraph 19, because the State concedes that prejudice would be presumed if Seibert proved deficient performance.

¶ 9. For the reasons set forth, I write separately.


text:
    Scott R. Jensen, personally and as Speaker of the Wisconsin Assembly and Mary E. Panzer, personally and as Minority Leader of the Wisconsin Senate, Petitioners, v. Wisconsin Elections Board, an independent agency of the State of Wisconsin, Jeralyn Wendelberger, its chairman, and each of its members in his or her official capacity, David Halbrooks, R.J. Johnson, John P. Savage, John C. Schober, Steven V. Ponto, Brenda Lewison, Christine Wiseman and Kevin J. Kennedy, its executive director, Respondents, State Senate Majority Leader Charles J. Chvala, State Assembly Minority Leader Spencer Black, Intervenors-Respondents, Wisconsin Education Association Council, a voluntary association, Stan Johnson, its elected president, and several of its members, Tommie Lee Glenn, Paul Hambleton and Dianne Catlin Lang, Intervenors-Respondents.
    Supreme Court

      No. 02-0057-OA.

      Oral Argument February 5, 2002.

    Decided February 12, 2002.

    2002 WI 13

      (Also reported in 639 N.W.2d 537.)

      For the petitioners there was oral argument by James R. Troupis of Michael, Best & Friedrich, Madison.
    For intervenors-respondents, Charles J. Chvala and Spencer Black, there was oral argument by Michael P. May of Boardman, Suhr, Curry & Field, LLP, Madison.
    For intervenor-respondent, WEAC, there was oral argument by Brady C. Williamson, Jr., of LaFollette, Godfrey & Kahn, Madison.
    For the respondents the cause was argued by Thomas J. Balistreri, assistant attorney general.
   PER CURIAM.

¶ 1. This matter involves the decennial problem of legislative redistricting. On January 7, 2002, Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate Republicans, petitioned this court for leave to commence an original action on the issue of state legislative redistricting. Senate Majority Leader Charles J. Chvala and Assembly Minority Leader Spencer Black, representing Senate and Assembly Democrats, and the Wisconsin Education Association Council (WEAC), along with its president and several of its members, were each permitted to intervene on the initial jurisdictional question.

¶ 2. The petitioners ask this court to declare the existing legislative districts constitutionally invalid due to population shifts now documented by the 2000 census. They further ask that we enjoin the respondent Wisconsin Elections Board (Elections Board) from conducting the 2002 elections using the existing districts. Finally, claiming a legislative impasse, they ask this court to remap the state's Senate and Assembly districts in time for the rapidly approaching 2002 election cycle.

¶ 3. The intervenors argue against our assumption of original jurisdiction in this matter because a three-judge panel of the federal district court in Milwaukee has already taken jurisdiction over state legislative redistricting, has scheduled a trial, and is ready, willing, and, under present circumstances, better able to decide the state and federal questions presented by this case. The Elections Board, by a 4-3 margin, supports the petition for original jurisdiction (four Republican appointees in favor, two Democratic appointees and one court-appointee against).

¶ 4. This case raises important state and federal legal and political issues that go to the heart of our system of representative democracy. In the absence of a timely legislative compromise, our participation in the resolution of these issues would ordinarily be highly appropriate. For the reasons that follow, however, we decline to accept original jurisdiction in this matter, and therefore deny the petition without prejudice.

i — I

¶ 5. It is an established constitutional principle in our federal system that congressional reapportionment and state legislative redistricting are primarily state, not federal, prerogatives. Growe v. Emison, 507 U.S. 25, 34 (1993); Chapman v. Meier, 420 U.S. 1, 27 (1975); Scott v. Germano, 381 U.S. 407, 409 (1965). Although the federal and state courts have concurrent jurisdiction to decide the federal and state constitutional and statutory issues presented by redistricting litigation, the United States Constitution and principles of federalism and comity dictate that the states' role is primary:

'[RJeapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court. Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751 (1975). Absent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it.

Growe, 507 U.S. at 34.

¶ 6. The Wisconsin Constitution sets forth standards for redistricting, and commits to the state legislature the authority and responsibility of drawing State Senate and Assembly district boundaries: "At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants." Wis. Const, art. iy § 3.

¶ 7. However, in the four decades since Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964), the matter of redistricting in Wisconsin has been resolved by the legislature without court involvement exactly once, in 1972. The last time this court was involved in redistricting was 1964. See State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964) ("Zimmerman I"); State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964) ("Zimmerman II").

¶ 8. In Zimmerman I, this court followed the United States Supreme Court's Baker v. Carr lead and overruled prior cases that precluded judicial review of redistricting statutes valid when enacted but allegedly invalid under the Wisconsin Constitution due to subsequent population shifts. State ex rel. Reynolds, 22 Wis. 2d at 562-63 ("Zimmerman I"). Noting that the earlier cases were based upon the "political question" nonjus-ticiability rationale of Colegrove v. Green, 328 U.S. 549 (1946), distinguished by Baker v. Carr, 369 U.S. at 208-09, 234, this court held that:

The citizens of this state can now obtain affirmative judicial relief from federal courts upon a showing that the voting power discriminations resulting from mal-apportionment deny them equal protection. Since a denial of voting rights deemed to be a denial of the general standards of equal protection of the law under the Fourteenth amendment would also be a denial of the specific standard of representation in direct ratio to population in art. IV [of the Wisconsin Constitution], there is no reason for Wisconsin citizens to have to rely upon the federal courts for the indirect protection of their state constitutional rights.

State ex rel. Reynolds, 22 Wis. 2d at 564 ("Zimmerman I") (emphasis added).

¶ 9. Notwithstanding Zimmerman Ts unequivocal assertion of this court's institutional interest in vindicating the state constitutional rights of Wisconsin citizens in redistricting matters, redistricting combatants have either sought or ended up in federal court following both the 1980 census and the 1990 census. See Wisconsin State AFL-CIO v. Elections Board, 543 F. Supp. 630 (E.D. Wis. 1982); Prosser v. Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992). In 1982, this court granted a petition for leave to commence an original action in the matter of legislative redistricting, but its jurisdiction was brief and inconsequential: the case was promptly removed to federal court in Milwaukee and consolidated with a redistricting lawsuit already pending there. Wisconsin State AFL-CIO, 543 F. Supp. at 632-33; State ex rel. Dreyfus v. Election Board, No. 82-480-OA (Wis. S. Ct. 1982) (petition for original action granted).

¶ 10. Despite the reality that redistricting is now almost always resolved through litigation rather than legislation, we are moved to emphasize the obvious: redistricting remains an inherently political and legislative — not judicial — task. Courts called upon to perform redistricting are, of course, judicially legislating, that is, writing the law rather than interpreting it, which is not their usual — and usually not their proper — role. Redistricting determines the political landscape for the ensuing decade and thus public policy for years beyond. The framers in their wisdom entrusted this decennial exercise to the legislative branch because the give-and-take of the legislative process, involving as it does representatives elected by the people to make precisely these sorts of political and policy decisions, is preferable to any other.

¶ 11. But the requirement of a remedy for constitutional or Voting Rights Act violations stipulated or adjudicated in redistricting litigation has impelled the federal courts to take up seemingly permanent residency in what Justice Frankfurter warned was a "political thicket" that judges "ought not to enter." Colegrove, 328 U.S. at 556 (plurality opinion). It is not a comfortable place for any court, state or federal. See Jeffrey C. Kubin, Note, The Case for Redistricting Commissions, 75 Tex. L. Rev. 837, 841 (1997) ("[w]hile straightforward in principle, the redistricting process is complicated by the political arena in which it operates and the judiciary's attempts to police this political arena."). We read Growe as the United States Supreme Court's effort to put the state supreme courts back into the equation.

II

¶ 12. We are at this moment well into the first legislative session following the 2000 census enumeration, and not far (just three and a half months) from the official commencement of the next election season (nomination paper circulation begins June 1). Wis. Stat. § 10.72(2) (1999-2000). And yet, neither the Democratic-controlled State Senate nor the Republican-controlled State Assembly has submitted a legislative redistricting bill. Accordingly, were we to take this case, we would be in a position similar to that in which the three-judge federal panel in 1992 found itself:

[W]e are not reviewing an enacted plan. An enacted plan would have the virtue of political legitimacy. We are comparing submitted pians with a view to picking the one (or devising our own) most consistent with judicial neutrality. Judges should not select a plan that seeks partisan advantage-that seeks to change the ground rules so that one party can do better than it would do under a plan drawn up by persons having no political agenda-even if they would not be entitled to invalidate an enacted plan that did so.

Prosser, 793 F. Supp. at 867.

¶ 13. The situation this time around is complicated not just by the prospect of competing plans but competing courts. Apparently anticipating the gridlock that sometimes results where (as here) a politically split bicameral legislature approaches a politically sensitive task such as redistricting, or perhaps just making an early forum-choice decision, a group of Wisconsin citizens commenced a congressional reapportionment lawsuit in federal court over a year ago. Arrington v. Elections Board, No. 01-C-121 (E.D. Wis. filed 2001), now pending and well along in the United States District Court for the Eastern District of Wisconsin, has since been amended to include the issue of state legislative redistricting. The petitioners here are intervening parties in the federal litigation, as are the interve-nors in this case, Senate Majority Leader Chvala and Assembly Minority Leader Black.

¶ 14. A three-judge panel, established pursuant to 28 U.S.C. § 2284 (2000), has assumed jurisdiction over the federal case and established a schedule that contemplates discovery, pretrial submissions and separate trials on congressional reapportioriment and state legislative redistricting. On February 4, 2002, the Ar-rington panel issued an order adopting a pretrial and trial schedule proposed by the parties in that action. The order establishes deadlines for depositions and written discovery, the filing of proposed maps and witness lists, trial briefs, pretrial motions and supporting briefs. The federal court has set the state legislative redistricting matter for trial on April 11-12, 2002, indicating that the trial will not be stayed unless the Wisconsin "legislature or any other Wisconsin authority" has adopted and implemented "redistricting plans for congressional districts and state legislative districts." Arrington v. Elections Board, No. 01-C-121 (E.D. Wis. Jan. 29, 2002) (Status Conference).

¶ 15. Growe requires federal courts "to defer consideration of disputes involving redistricting where the State, through its legislative or judicial branch, has begun to address that highly political task itself." Growe, 507 U.S. at 33. Growe also specifies that any redistricting plan judicially "enacted" by a state court (just like one enacted by a state legislature) would be entitled to presumptive full-faith-and-credit legal effect in federal court. Id. at 35-36.

¶ 16. But the Growe rule is deference, not abstention. Id. at 37. A redistricting plan adopted by this court — like one adopted by the legislature — would be subject to collateral federal court review for compliance with federal law. See e.g., Voinovich v. Quilter, 507 U.S. 146 (1993) (federal courts are bound to respect the states' apportionment choices unless those choices contravene federal requirements); Sexson v. Servaas, 33 F.3d 799, 803 (7th Cir. 1994) (if state apportionment violates federal law, the federal interest trumps the state interest); see also Holder v. Hall, 512 U.S. 874 (1994); Johnson v. De Grandy, 512 U.S. 997 (1994); Thompson v. Smith, 52 F. Supp. 2d 1364 (M.D. Ala. 1999). Accepting original jurisdiction, then, would necessarily put this case and any redistricting map it would produce on a collision course with the case now pending before the federal three-judge panel. At the very least, the outcome here would be subject to later review in federal court. At best, such a scenario would delay and disrupt the 2002 election season, which is now almost upon us. At worst, it would throw the whole process into considerable doubt.

¶ 17. There is no question but that this matter warrants this court's original jurisdiction; any reapportionment or redistricting case is, by definition, publici juris, implicating the sovereign rights of the people of this state. See Petition of Heil, 230 Wis. 428, 443, 284 N.W. 42 (1939). The people of this state have a strong interest in a redistricting map drawn by an institution of state government — ideally and most properly, the legislature, secondarily, this court. Growe unequivocally reaffirmed that the principles of federalism and comity establish the institutions of state government— legislative and judicial — as primary in matters of reapportionment and redistricting. Had our jurisdiction been invoked earlier, the public interest might well have been served by our hearing and deciding this case. As it stands, it is not.

¶ 18. Accepting original jurisdiction would undermine principles of cooperative federalism and federal-state comity and would result in an unjustifiable duplication of effort and expense, all incurred by the taxpayers of this state. It would also have the substantial potential of creating uncertainty rather than resolution of the critical legal and political issues that surround redistricting. Under circumstances more favorable to an orderly and efficient resolution of the case, we would readily accept original jurisdiction in this matter and decide the important issues that it raises. Indeed, this court has taken original jurisdiction in cases concerning legislative redistricting on no fewer than five previous occasions. See State ex rel. Dreyfus, No. 82-480-OA; State ex rel. Reynolds, 22 Wis. 2d 544 ("Zimmerman I"); State ex rel. Thompson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953); State ex rel. Bowman v. Dammann, 209 Wis. 21, 243 N.W. 481 (1932); State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892).

¶ 19. Simultaneous, separate efforts by the state and federal courts addressing the subject of legislative redistricting would engender conflict and uncertainty regarding the validity of the respective plans that the parallel litigation would produce. The risk that this would leave the state with no clear, authoritative map of legislative districts going into the upcoming election season is significant.

¶ 20. Even if the federal court were to stay its hand under Growe and wait for the outcome of this case, the likelihood of followup federal court review, and, therefore, continued uncertainty and delay remains. We have no established protocol for the adjudication of redistricting litigation in accordance with contemporary legal standards. A procedure would have to be devised and implemented, encompassing, at a minimum, deadlines for the development and submission of proposed plans, some form of factfinding (if not a full-scale trial), legal briefing, public hearing, and decision. We are obviously not a trial court; our current original jurisdiction procedures would have to be substantially modified in order to accommodate the requirements of this case. See Wis. S. Ct. IOP § II.B.3 (May 24, 1984).

¶ 21. All this takes time, and there is precious little of that left — certainly not enough for back-to-back state and federal plenary proceedings on a matter as complex and consequential as this. The Elections Board has established a deadline of May 14 by which it hopes to certify new Senate and Assembly districts. If (as seems likely) our decision in this case were to be subsequently challenged in federal court on federal grounds, the legality of the new district boundaries would remain in doubt for an additional, unknown period of time. This, needless to say, would have serious practical and political ramifications for the people of this state and their elected officials.

¶ 22. Accordingly, while we recognize and agree that the institutions of state government are primary in matters of redistricting, and federalism requires deference to state high courts for their resolution, the timing and circumstances here do not allow us to responsibly exercise' original jurisdiction in a way that would do substantial justice in the case. This is not to say that the legislature cannot now undertake to give the people of this state their due, and timely deliver a plan of legislative redistricting. While this court must act as a court, and provide, in this as in any other case, all of the procedural protections that due process and the right to be heard require, the legislature, as a legislature, can act more rapidly and respond to the exigencies of the situation.

¶ 23. The legislature has it within its power, if not its present will, to draft a redistricting plan; we urge it to summon the will and do so forthwith. Other state legislatures are currently acting on redistricting. Legislative action might not obviate federal court review, but it would have the virtue of putting in place a redistricting plan that carries political legitimacy. See Prosser, 793 F. Supp. at 867. The people of this state deserve no less.

I — I I — I hH

¶ 24. Consistent with Growe, and to assure the availability of a forum in this court for future redistricting disputes, we will initiate rulemaking proceedings regarding procedures for original jurisdiction in redistricting cases. Components of a new procedure could include: provisions governing factfinding (by a commission or panel of special masters or otherwise); opportunity for public hearing and comment on proposed redistricting plans; established timetables for the fact-finder, the public and the court to act; and if possible, measures by which to avoid the sort of federal-state court "forum shopping" conflict presented here. See generally Growe, 507 U.S. 25; Wilson v. Eu, 816 P.2d 1306, 1307 (Cal. 1991); In re Reapportionment Plan for Pennsylvania General Assembly, 442 A.2d 661 (Pa. 1981); Pa. Const. Art. 2 § 17 (2001); see also Teague v. Bad River Band of Chippewa Indians, 2000 WI 79, 236 Wis. 2d 384, 612 N.W. 709. Public and expert comment will be solicited, and a hearing on this issue shall be held on Monday, October 14, 2002, at 9:30 a.m. in the Supreme Court Room in the State Capitol, Madison, Wisconsin.

¶ 25. We emphasize in closing that this court is the final arbiter of questions arising under the Wisconsin Constitution, and as such, stands ready to carry out its responsibility to faithfully adjudicate any such questions in appropriate circumstances, should that become necessary. See State ex rel. Reynolds, 22 Wis. 2d at 562-63 ("Zimmerman I"). For the foregoing reasons, the petition for leave to commence an original action is denied without prejudice.

       Although not specifically pleaded in the petition, redistricting litigation typically presents Fourteenth Amendment equal protection questions under Baker v. Carr, 369 U.S. 186 (1962), Reynolds v. Sims, 377 U.S. 533 (1964) and their prodigious progeny; state constitutional questions under the applicable provisions of the state charter (here, Wis. Const, art. I, § 1; art. W §§ 2-5); and questions under the Voting Rights Act, 42 U.S.C. § 1971 et seq. (2001).

       The cases and the parties sometimes use the terms "reapportionment" and "redistricting" interchangeably, although there is a distinction. Reapportionment is the allocation of seats in a legislative body where the district boundaries do not change but the number of members per district does (e.g., allocation of congressional seats among established districts, that is, the states); redistricting is the drawing of new political boundaries. This petition involves the latter.

        See generally Wis. Const, art. I, § 1 (equal protection), and art. W §§ 2-5 (requiring compactness, contiguity and respect for municipal boundaries in the establishment of district lines; also prohibiting the division of an assembly district in the formation of a senate district).

       James Madison, quoting Montesquieu in Federalist No. 47, warned that "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted .. . Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.'" The Federalist No. 47, at 245 (Alexander Hamilton, James Madison and John Jay) (Oxford Press ed. 1948).

       "[J]udicial management of a process that is necessarily political" is troubling. La Porte County Republican Cent. Comm. v. Board of Comm'rs, 43 F.3d 1126, 1130 (7th Cir. 1994).

        See generally G. Alan Tarr and Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation, 13 (1988)("[a]lthough the legal principles governing the relationships between state supreme courts and federal courts emphasize hierarchy and — to a lesser extent — autonomy, in actuality these relationships are often characterized by reciprocity and interdependence.").

       We note that the intervenors have also raised the possibility of removal should this court accept this case. See State ex rel. Dreyfus v. Elections Board, No. 82-480-OA (Wis. S. Ct. 1982) (petition for original action granted). While .we do not speculate on either the likelihood or success of such a strategic maneuver, see, 28 U.S.C. § 1441 (2001), we note only that the prospect of removal increases the possibility for uncertainty and delay.

       In California, for example, the following procedure has been followed:
      •The supreme court appoints a panel of three special masters comprised of retired or reserve trial and appellate judges charged with the responsibility of holding a series of public hearings throughout the state to receive evidence and arguments on proposed redistricting plans.
      •The special masters must complete the public hearings within 30 days of their appointment and submit recommendations and a proposed plan within 30 days thereafter. An additional 30-day period for briefing and for filing of public comments with the court concerning the special masters' plan is permitted.
      •The court then reviews the special masters' plan and public comment.


author: WEDEMEYER, PJ. FINE, J.

text:
    Suzanne Schultz, Plaintiff-Respondent-Cross-Appellant, v. Barbara Trascher, Defendant-Appellant-Cross-Respondent.
    Court of Appeals

      No. 00-3182.

      Submitted on briefs August 7, 2001.

    Decided October 2, 2001.

    2002 WI App 4
    (Also reported in 640 N.W.2d 130.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Gaines Law Offices, S.C. by Irving D. Gaines, Milwaukee.
    On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of William E. Ryan, Wauwatosa.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   WEDEMEYER, PJ.

¶ 1. Barbara Trascher appeals from a judgment entered following a court trial dismissing Suzanne Schultz's claims for adverse possession and prescriptive easement, but concluding that the fence Trascher erected on her own property constituted a private nuisance. The trial court concluded that the placement of the fence unreasonably impaired Schultz's use and enjoyment of her garage. The trial court ordered Trascher to remove part of the fence she had erected. The trial court also ordered Schultz to pay costs associated with removal of the fence, but found that Schultz was the prevailing party, and ordered Trascher to pay costs accordingly. Schultz cross-appeals from that part of the judgment denying her claim for relief based on an easement by prescription.

¶ 2. Trascher raises numerous points of trial court error, which we condense to three issues: (1) whether the trial court erroneously exercised its discretion by sua sponte orally amending the claim for relief sought by Schultz; (2) whether the trial court record supported the conclusion that a private nuisance occurred; and (3) whether the trial court erroneously exercised its discretion in applying a remedy under Wis. Stat. § 844.01 (1999-2000).

¶ 3. By way of cross-appeal, Schultz claims the trial court erred as a matter of law in failing to conclude that there was sufficient evidence to entitle her to a prescriptive easement on the north side of Trascher's property.

¶ 4. Because the trial court did not erroneously exercise its discretion in orally amending the claim, in applying the doctrine of private nuisance, and in applying the remedial provisions of Wis., Stat. § 844.01, we affirm on the appeal. Because of this disposition, we need not address the cross-appeal. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

I. BACKGROUND

¶ 5. Schultz and Trascher are abutting property owners on the west side of the 2400 block of North 88th Street in Wauwatosa, Wisconsin. Schultz's residence is located immediately to the north. Schultz purchased her home from the Franson family on December 7, 1984. Franson had owned the property for thirty years. Trascher purchased her home in 1998.

¶ 6. At the center of the dispute between Schultz and Trascher is a driveway which runs in a westerly direction from North 88th Street between the two homes, and which originally provided access to a one-car backyard garage located on Schultz's property. Since at least 1954, the driveway consisted of two ribbon concrete strips, which started at the street and proceeded back to the one-car garage. In June 1985, Schultz had a solid concrete driveway poured to replace the two ribbon concrete strips.

¶ 7. Before the new driveway was poured, there was an unspecified number of concrete "patio blocks," 7 and 5/8 inches wide and 13 and 3/4 inches long, that had been installed along the south line of the south ribbon of the driveway near the garage. It is undisputed that the patio blocks rested on the Trascher property. It is also undisputed that the ribbon driveway encroached on the Trascher property by 1.2 inches. When Schultz installed the solid concrete drive, she ordered that the width of the drive extend beyond the south line of the south ribbon to include the width of the removed patio blocks, or 0.97 feet.

¶ 8. Shortly after Trascher moved into her new home, she sought to correct some drainage problems in her basement. This necessitated laying some concrete along the north side of her home. To prevent any property line problems, she obtained a 1996 survey performed by National Survey Service that had been commissioned by a previous owner. This survey indicated a slight encroachment of the south line of the old ribbon drive upon her property in the area between the two homes. This discovery precipitated the dispute with Schultz. At Trascher's request, a new survey by William H. Schmitt coufirmed her earlier discovery, but also demonstrated a greater encroachment created by the newer paved driveway. A survey later ordered by Schultz reached the same conclusion. When ensuing settlement discussions between Schultz and Trascher failed, Trascher removed that part of the encroachment caused by the paved driveway running from the sidewalk to the east line of her residence. She also erected a forty-eight-inch tall, chain-link fence within two inches of her north property line running from the east line of her residence to the west line of Schultz's garage. Schultz then commenced an action against Trascher asserting adverse possession over the encroached area.

¶ 9. Trascher moved for summary judgment. In response, Schultz moved to amend her complaint. The trial court granted Trascher's motion, but also permitted Schultz to amend her complaint to allege a claim for prescriptive easement over the encroached area. The court then set the matter for a bench trial. Before the trial began, the court alerted the parties to the possible application of Wis. Stat. § 844.01. The court also viewed the premises and attempted to drive Schultz's car to her garage. After both parties rested, the court stated:

I want each attorney to provide me with [] a legal memorandum as to the effect of Chapter 844. This is a trial to the Court. I think I have liberal ability to view the pleadings in this case, to include that statute as a statute which may apply in this case.

¶ 10. Both parties complied with the trial court's request. The court rendered a written decision. It dismissed Schultz's prescriptive easement claim because there was no showing that the passage of a certain portion of Schultz's automobile and the automobile of her predecessor in interest over a portion of the northern edge of Trascher's property was "hostile." It concluded that the fundamental issue was Schultz's claimed "inability to use her driveway (not her driveway and the current one foot encroachment) as a result of [Trascher's] placement of the [] fence." It further concluded: "Given the language of Wis. Stat. 802.09(2), the Court views the plaintiffs pleading as an action grounded upon common law nuisance." It then ordered that that portion of Trascher's fence along the northern boundary of Schultz's property interfering with Schultz's use of her driveway be taken down at Schultz's expense. The trial court also ruled that Schultz was the prevailing party and awarded costs and fees. Trascher now appeals.

II. ANALYSIS

¶ 11. Trascher raises three issues of trial court error: (1) whether the trial court erroneously exercised its discretion by sua sponte amending the claim for relief sought by Schultz in the absence of a successful motion to amend her pleadings; (2) whether the evidence does not support the conclusion of a private nuisance; and (3) whether Schultz's amended complaint did not come within the purview of Wis. Stat. § 844.01.

A. Sua Sponte Amendment of Pleadings.

¶ 12. Trascher first asserts the trial court erred by sua sponte amending the claim for relief sought by Schultz. As part of this claim, she contends she ought to have been granted an opportunity to address the oral amendment with additional evidence. We are left unconvinced.

¶ 13. Material to Trascher's first claim of error is the application of Wis. Stat. § 802.09(2). The relevant part of the statute provides:

Amendments to confoRM to the evidence. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.

¶ 14. A trial court may amend the pleadings on its own motion. State v. Peterson, 104 Wis. 2d 616, 628, 312 N.W.2d 784 (1981). In reviewing such actions by the trial court we apply an erroneous exercise of discretion standard of review. John v. John, 153 Wis. 2d 343, 365, 450 N.W.2d 795 (Ct. App. 1989). A trial court has broader discretion in amending pleadings in a civil action than when amending pleadings in a criminal action. Peterson, 104 Wis. 2d at 620. Appellate courts have allowed trial courts to informally amend the pleadings if the opposing party is not prejudiced by the amendment. Sprecher v. Weston's Bar, Inc., 78 Wis. 2d 26, 49, 253 N.W.2d 493 (1977).

¶ 15. In general, implied consent to amend pleadings is inferred when the party fails to object to the introduction of evidence on the unpleaded issue, and when the party who has not objected knows that the evidence relates to the unpleaded issue. Actual notice to the parties is the key factor in determining whether there is implied consent. Peterson, 104 Wis. 2d at 630. We conclude that the trial court did not erroneously exercise its discretion because implied consent occurred.

¶ 16. Neither the complaint nor the amended complaint specifically denominated a claim for "private nuisance" or a remedy under Wis. Stat. § 844.01. Nor did either party move to amend or move to conform the pleadings to the proofs. Paragraph 9 of the complaint and amended complaint, however, alleges that the fence erected by Trascher has effectively denied ingress and egress to Schultz's garage. In the prayer for relief of both the complaint and the amended complaint, Schultz requests that the fence and posts be removed and, in both pleadings, additionally prays for "other just and equitable relief." Thus, the equitable relief sought by Schultz was not restricted in the original complaint by a claim for adverse possession and in the amended complaint by a claim for prescriptive easement.

¶ 17. Before testimony was taken in the bench trial itself, the court indicated on the record that Wis. Stat. § 844.01 had "some relevance to this case." In fact, at that juncture in the proceedings, the trial court read the contents of the statute to the parties. Furthermore, shortly before testimony was heard, the court stated: "So after we listen to all the facts of this case, we may wind up, in addition to me traveling to the driveway, we may wind up having the lawyers give me some law on what that statute means."

¶ 18. During the trial, a large measure of the testimony concentrated upon Schultz's inability to gain access to her garage because of the location of Trascher's newly constructed fence. When the trial judge visited the scene, the parties were present with their respective counsel. The trial court observed Schultz attempt to drive her 1996 Pontiac Grand Am west on her driveway. When the trial judge attempted to do the same, he stopped and exclaimed: "I'm not going to try and drive that car further because I don't want to knock the fence down or hit the wall." The court found that Trascher's fence "prohibits" Schultz from driving her vehicle on her driveway any distance west of the east face of Schultz's house.

¶ 19. After the testimony was concluded, the court did indeed ask for memoranda of law relating to the application of Wrs. Stat. § 844.01. At no time did either of the parties, and more particularly Trascher, object to the court's consideration of the application of § 844.01, or ask for a continuance to present additional evidence. There is no doubt that the court was focused upon the application of that statute.

¶ 20. Trascher did not object to the focus of the trial court as "outside the four corners of the amended complaint." Likewise, she did not object to Schultz's evidence that use of her garage was prevented by the fence on the basis that such evidence was outside the four corners of the amended complaint. Because the parties were timely and repeatedly informed that the proceedings were equitable in nature and the court was considering the application of the equitable principles embodied in Wis. Stat. § 844.01, and because there were no objections or requests for a continuance to submit additional evidence, we conclude that implied consent occurred.

¶ 21. Furthermore, because there has been no showing of prejudice to Trascher, the trial court did not erroneously exercise its discretion by sua sponte amending the pleadings to apply to the evidence before it, by utilizing the doctrine of private nuisance and invoking the remedies authorized by Wis. Stat. § 844.01.

B. Sufficiency of the Evidence.

¶ 22. Trascher next complains that the evidence does not support the conclusion that a private nuisance occurred. We disagree.

¶ 23. In Wisconsin, a private nuisance is a continuing activity or condition which interferes with the use and enjoyment of neighboring property so unreasonably that liability results. Liability generally attaches only if the defendant's conduct is unreasonable under the circumstances. Wisconsin Power & Light Co. v. Columbia County, 3 Wis. 2d 1, 10, 87 N.W.2d 279 (1959). In Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982), the supreme court engaged in a broad examination of the principles supporting the doctrine of private nuisance. The Prah court points out that "[i]n every case the court must make a comparative evaluation of the conflicting interests according to objective legal standards, and the gravity of the harm to the plaintiff must be weighed against the utility of the defendant's conduct." Id. at 231 n.5 (citation omitted). It further noted that a private nuisance is:

"a nontrespassory invasion of another's interest in the private use and enjoyment of land." The phrase "interest in the private use and enjoyment of land"... is broadly defined to include any disturbance of the enjoyment of property....
"... 'Interest in use and enjoyment1 also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself."

Id. at 231-32 (citations omitted). After reviewing the testimony, most of which was uncontested, the trial court correctly observed that, "this court clearly has the authority to provide the plaintiff with relief if the facts warrant such relief." It found that Trascher's fence prevented Schultz from driving her vehicle on her driveway any distance west of the east face of her house. It further found that the fence unreasonably impaired Schultz's use and enjoyment of her property. From our review of the record, these findings are not clearly erroneous and provide sufficient support for the trial court's conclusion that Trascher's installation of the fence on her property created a private nuisance.

C. Remedy.

¶ 24. Lastly, Traseher contends the trial court erroneously exercised its discretion in the remedy it created under Wis. Stat. § 844.01. She contends that the statute is not applicable to the case. We disagree.

¶ 25. Chapter 844, entitled "Interference with Interest; Physical Injury," has received scant attention in Wisconsin case law. The reported decisions that do exist examine the statute only in a general way. Nonetheless, a reasonable reading of the section, "Physical injury to, or interference with real property," allows us to con-elude that the intent of the statute is to provide protection from more than mere physical injury. From a reading of the statute's content, we deem that it enables the court to provide an equitable remedy. Thus, whether to award equitable relief under its provisions is within the court's discretion. Prince v. Bryant, 87 Wis. 2d 662, 674, 275 N.W.2d 676 (1979); American Med. Servs., Inc. v. Mutual Fed. Sav. & Loan Ass'n, 52 Wis. 2d 198, 205, 188 N.W.2d 529 (1971) (a trial court has power to apply and adapt remedy to meet needs of particular case).

¶ 26. Prah is the earliest supreme court decision mentioning Wis. Stat. § 844.01 as an alternative form of relief in these types of cases. The case involved a claim that the construction of a home by an abutting property owner would block the plaintiffs access to sunlight. Prah, 108 Wis. 2d at 224. The plaintiff presented three legal theories to support his claim to obtain an injunction: (1) the construction of the defendant's home constituted a common law private nuisance; (2) the construction of the home was prohibited by § 844.01; and (3) the construction interfered with the solar easement the plaintiff acquired under the doctrine of prior appropriation. Prah, 108 Wis. 2d at 229-30. Because the supreme court ruled that the plaintiff had stated a claim for common law nuisance and summary judgment was not appropriate under the circumstances, it did not reach the question of whether the complaint stated a claim under § 844.01. Prah, 108 Wis. 2d at 242-43. The case was remanded for further proceedings on the private nuisance claim. Id. at 243.

¶ 27. The next case to examine the statute was Shanak v. City of Waupaca, 185 Wis. 2d 568, 518 N.W.2d 310 (Ct. App. 1994). Shanak, the owner of a millpond that was used to create electrical power for his machine shop, sought an injunction to stop the City of Waupaca from depositing materials via a storm sewer system into his millpond thereby reducing the pond's capacity to generate electricity. Id. at 577-78. Shanak contended that Wis. Stat. § 844.01 granted to any person claiming an interest in real property a basis for injunctive relief abating an interference with property rights of that person, and justified an injunction against further intrusions. Shanak, 185 Wis. 2d at 595. After tracing the history of the statute, we ruled that § 844.01 was enacted as a "recodification of the law on real property" and that it set forth "real property remedies obtainable by a lawsuit and the legal procedure to be used to obtain remedies." Shanak, 185 Wis. 2d at 596. We further ruled that § 844.01(1) does not create any rights or duties. Shanak, 185 Wis. 2d at 596. "It does not purport to create a cause of action." Id. "It is a remedial and procedural statute." Id. We, therefore, affirmed the trial court in denying the request for an injunction under the statute. Id. at 598-99.

¶ 28. The most recent case discussing the scope of the statute is Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996). Menick brought an action against the City after raw sewage from the City's sewer system had twice flooded her basement. Id. at 741. Among the five theories pleaded to support the claim was an interference with real property under Wis. Stat. § 844.01 and private nuisance. Id. We sustained an order granting summary judgment on the asserted § 844.01 cause of action, affirming our earlier interpretation of the statute that it does not create a cause of action. Menick, 200 Wis. 2d at 746-47. We also affirmed the dismissal of the private nuisance action because of insufficient presentation of proofs. Id. at 748-49.

¶ 29. As pertinent to our analysis in the instant case, the common element in all three of the reported cases was the unsuccessful attempt to base a cause of action upon Wis. Stat. § 844.01(1). Unlike the plaintiffs in these cases, Schultz did not allege such a claim. Rather, the trial court utilized § 844.01 to fashion an equitable remedy, after it had concluded that a private nuisance occurred.

¶ 30. In a related argument, Trascher contends that Wis. Stat. § 844.10 precludes the trial court from concluding her forty-eight-inch fence could be considered a private nuisance. We reject this proposition. Section 844.10 was enacted to overrule Metzger v. Hochrein, 107 Wis. 267, 83 N.W. 308 (1900), which upheld a landowner's right to erect a useless and unsightly sixteen-foot "spite" fence four feet from his neighbor's windows. Id. at 269. The statute specifically defined a spite fence as an actionable private nuisance. The statute's enactment was the beginning of a trend in our real property law to limit unbridled land use. In State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), this trend continued when the court rejected per se exclusions to the nuisance "reasonable use" doctrine. Prah, 108 Wis. 2d at 234-40. In essence, Trascher makes the following argument: Wis. Stat. § 844.10 states that any fence which exceeds six feet and which is erected spitefully "shall be deemed a private nuisance"; the Trascher fence was only four feet in height; therefore, it cannot be a private nuisance. To accept Trascher's argument of preclusion would be tantamount to reintroducing per se exclusions to the reasonable use doctrine for which we can find neither authority nor convincing reason.

¶ 31. Once a wrongful interference is established, "the court ha[s] the power to adapt its remedy to the exigencies and needs of the case." Hunter v. McDonald, 78 Wis. 2d 338, 346, 254 N.W.2d 282 (1977). Although no case law has specifically declared that a private nuisance and possible remedies authorized by Wis. Stat. § 844.01 are interrelated, equity would be ill-served if remedies could not be applied to a dispute that cries out for an equitable solution. The nature of a private nuisance and the remedies available under § 844.01 are not conceptually antithetical. We therefore conclude that any remedies fashioned under the provisions of § 844.01 may be applied to a private nuisance dispute if the circumstances warrant such an application. In the dispute between Schultz and Tra-scher, the circumstances were particularly appropriate for the statute's application. We conclude, based upon the record, that the trial court did not erroneously exercise its discretion in fashioning a § 844.01 remedy.

By the Court. — Judgment affirmed.

FINE, J.

¶ 32. (dissenting). The Majority correctly concludes that the trial court attempted to invoke its equitable powers to remedy a situation that it observed personally when, without objection by any of the parties, it determined that it could not maneuver into Suzanne Schultz's garage. Normally, that would end the matter, because whether to impose an equitable remedy is ordinarily within the trial court's discretion. Majority at ¶ 24. But a trial court erroneously exercises its discretion when it does something that is not consistent with established legal principles. Lievrouw v. Roth, 157 Wis. 2d 332, 348, 459 N.W.2d 850, 855 (Ct. App. 1990). Here, the trial court gave equitable relief to Schultz without first determining whether Schultz had "clean hands" in connection with her claim, see 27A Am. Juu 2d Equity § 126 (1996) ("The equitable doctrine of clean hands expresses the principle that where a party comes into equity for relief he or she must show that his or her conduct has been fair, equitable, and honest as to the particular controversy in issue."), a doctrine that also applies to adjoining landowners who have disputes over alleged encroachments, 1 Am. Jur 2d Adjoining Landowners § 137 (1994). Accordingly, the trial court erroneously exercised its discretion.

¶ 33. If there was ever a case where a plaintiff seeking equity has come into court with dirty hands, this is it. Both parties, Schultz included after she did the survey to which the Majority refers in ¶ 8, knew that Schultz's driveway encroached on Barbara Trascher's property. Trascher was perfectly willing to permit that, as long as her acquiescence would not lead to a claim of adverse possession. Schultz, however, was adamant that she already had Trascher's property by adverse possession and refused to agree to permit Trascher to score in the concrete the survey-validated property line. It was only then, and on advice of counsel, that Trascher went to the expense and hassle of putting up the fence to cut off the claims of adverse possession that Schultz was admittedly harboring.

¶ 34. A plaintiff may not get relief in equity if "it is the fruit of his own wrong, or relief from the consequences of his own unlawful act, which the plaintiff seeks." David Adler & Sons Co. v. Maglio, 200 Wis. 153, 160, 228 N.W. 123, 126 (1929) (quoted source omitted). The "wrong" or "unlawful conduct," of course, need not be criminal. Ibid. As Robert Frost once wrote in. Mending Wall, "good fences make good neighbors." If this is a "bad" fence, as the trial court found, then it is because Schultz was a bad neighbor. Her wrong gave birth to the fence. Accordingly, under established equitable principles, she has no right in equity to force its removal. I respectfully dissent.

       WisConsin Stat. § 844.01 sets forth in pertinent part:
      Physical injury to, or interference with, real property. (1) Any person owning or claiming an interest in real property may bring an action claiming physical injury to, or interference with, the property or the person's interest therein; the action may be to redress past injury, to restrain further injury, to abate the source of injury, or for other appropriate relief.
      (2) Physical injury includes unprivileged intrusions and encroachments; the injury may be surface, subsurface or supra-surface; the injury may arise from activities on the plaintiffs property, or from activities outside the plaintiffs property which affect plaintiffs property.

        (3) Interference with an interest is any activity other than physical injury which lessens the possibility of use or enjoyment of the interest.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Trascher also asserts that Schultz's claims were frivolous, and that the trial court should not have made Trascher pay costs and fees. We summarily reject both claims. A claim is frivolous if there is no reasonable basis in law or equity, or was commenced for the sole purpose of harassment. Wis. Stat. § 814.025(3). That was not the case here. Schultz was unable to drive her car in or out of her garage as a result of Trascher's placement of the fence. The main purpose of Schultz's claim was to seek relief from the court so that she could do so. The trial court ruled in Schultz's favor. Accordingly, we cannot conclude that her claims against Trascher were frivolous. For similar reasons, we conclude that the trial court's award of costs and fees was not erroneous. Schultz was the prevailing party in that she received a ruling from the court, which would result in actions with the end result being that she could use her garage. J.S. v. State, 144 Wis. 2d 670, 679, 425 N.W.2d 15 (Ct. App. 1988) (a party has prevailed if he or she succeeds on any significant issue in litigation which achieves some of the benefit sought by bringing suit). Accordingly, we reject Trascher's arguments on these issues.
      In a different twist on the cost issue, Trascher makes a brief argument that her counterclaim was not appropriately addressed by the trial court, and requests that we grant her judgment on her counterclaim and order costs associated with the judgment to be paid by Schultz. We decline to do so. The counterclaim sought declaratory judgment to establish that Trascher was the legal owner of the strip of land over which Schultz sought adverse possession. The counterclaim also asked for a declaration that Trascher could erect and maintain her fence on such property. Although the trial court did not specifically address the "counterclaim," it did dispose of the issue in its decision. The decision dismissed Schultz's adverse possession claim, and noted that it is undisputed that the strip of land in question belongs to Trascher. Both surveys conducted by the parties confirmed this fact. The trial court's decision, however, ordered that part of the Trascher fence be removed because it prevents Schultz from using her garage. Accordingly, Trascher was partially successful in her counterclaim and partially unsuccessful. Wisconsin Stat. § 814.035(2) provides the trial court with the discretion to determine what costs should be awarded when "the causes of action stated in the complaint and counterclaim .. . arose out of the same transaction or occurrence," as was the case here. The trial court fashioned a reasonable compromise given the undisputed facts. We cannot conclude that the trial court's decision on costs was an erroneous exercise of discretion.

       Trascher also argues that Schultz's contributory negligence exceeded any nuisance liability as a matter of law. She suggests that Schultz could have mitigated her damages by obtaining a survey before laying the new driveway, by consulting an attorney, or by moving the garage so that the fence would not obstruct access. We are not persuaded. As noted in the body of this opinion, all nuisance cases involve a balancing of competing interests, which is clearly demonstrated in the opinion of the trial court. The trial court compared the conflicting interests and reached a reasonable decision. Accordingly, we will not disturb that determination.

       Wisconsin Stat. § 844.10 provides:
      Private nuisances. Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance. However, nothing herein contained shall limit the right of a municipality to forbid the erection of a fence less than 6 feet in height.