source: Caselaw Access Project

author:
ANN WALSH BRADLEY, J.
      DIANE S. SYKES, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Norman O. Brown, Petitioner, v. Jody Bradley, Warden, North Fork Correctional Facility, and Jon Litscher, Secretary, Department of Corrections, Respondents.
    Supreme Court

      No. 01-3324-W.

      Oral argument October 8, 2002. —
    Decided March 6, 2003.

    2003 WI 14
    (Also reported in 658 N.W.2d 427.)

      For the petitioner there was a brief by Greg J. Carman, Shorewood, and oral argument by Greg J. Carman.

    For the respondents the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   ANN WALSH BRADLEY, J.

¶ 1. The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed. Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and deem his petition for review "timely."

¶ 2. We now conclude that the tolling rule we adopted in Nichols is a civil procedural rule with limited retroactive application. It applies retroactively to cases on direct review or not yet final when Nichols was decided and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. Because this court denied Brown's petition for review prior to deciding Nichols, he is not entitled to relief under this application of the tolling rule. However, we determine that denying relief to Brown would be unjust because this court denied Brown's petition for habeas corpus while nearly simultaneously granting Nichols' petition raising virtually the same claim. Accordingly, we reinstate Brown's petition for review pursuant to Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).

I.

¶ 3. Brown's petition for review stemmed from the circuit court's denial of his motion to withdraw his no contest plea. The court of appeals affirmed in part and reversed in part, and remanded the case to the circuit court to determine whether the prosecution had breached the plea agreement it reached with Brown. The circuit court determined that no breach occurred, and the court of appeals affirmed that determination on July 6, 2000. State v. Brown, Nos. 99-2567-CR and 99-2568-CR, unpublished slip op. (Wis. Ct. App. July 6, 2000).

¶ 4. Brown, who was incarcerated in the North Fork Correctional Facility in Sayre, Oklahoma, submitted to this court a pro se petition for review. Under Wis. Stat. § 808.10 and Wis. Stat. (Rule) § 809.62(1), he had 30 days to file his petition. This court did not receive Brown's petition for review until August 9, 2000, two days after the statutory deadline. It therefore dismissed the petition as untimely.

¶ 5. Brown subsequently wrote the court, outlining the steps he had taken to prepare and file his petition for review, and asking that the court accept his petition as timely filed. This court treated Brown's correspondence as a motion for reconsideration and denied it. Brown then filed a petition for a writ of habeas corpus, which the court denied. Finally, on December 12, 2001, after this court had decided Nichols and adopted a tolling rule for pro se prisoners' petitions for review, Brown filed another habeas petition, claiming that the tolling rule should apply to his petition for review.

HH HH

¶ 6. This court ordered briefing on only one issue: "whether the tolling rule adopted in [Nichols] should receive prospective or retroactive application." To resolve this issue, we first examine Nichols to set the stage for our discussion.

¶ 7. Much as in this case, Nichols involved a pro se prisoner's attempt to file a petition for this court's review. Nichols, 247 Wis. 2d 1013, ¶ 3. The filing deadline for Nichols' petition was February 25, 2000, 30 days after the court of appeals affirmed his conviction. Nichols gave his completed petition to the prison librarian for copying on February 15, 2000. He received the copies on a Friday afternoon, February 18, 2000, too late for outgoing mail on that day. The prison mailroom was closed on the weekend. Id. at ¶¶ 2-4.

¶ 8. Nichols delivered the petition to the mail-room on Monday, February 21. The clerk of court received the petition on Monday, February 28, three days after the deadline. This court dismissed the petition for review as untimely, and then denied Nichols' subsequent petition for a writ of habeas corpus. Id. at ¶¶ 4-6.

¶ 9. On reconsideration, Nichols urged the court to adopt a "prison mailbox rule" whereby a pro se prisoner's petition would be considered filed when delivered to the proper prison authorities for mailing. Id. at ¶ 6. Such a rule had been established by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988). We declined to implement the prison mailbox rule, but instead adopted a similar "tolling" rule that had been employed by the court of appeals in State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409. Nichols, 247 Wis. 2d 1013, ¶ 24.

¶ 10. We concluded that "the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing." Id. at ¶ 32. We further determined that the tolling rule applied to Nichols. Id. However, we specifically declined to determine whether the rule would generally apply retroactively or prospectively, noting that "because [Wis. Stat.] § 808.10 applies to all petitions for review, both civil and criminal, it is unclear if the retroactivity analysis used in civil cases should govern." Id. at ¶ 30. We stated that a determination of retroactive or prospective application "should be made with the benefit of briefs and argument on the merits by parties who take adverse positions." Id. at ¶ 31.

¶ 11. In the present case, the parties' disagreement is largely over the degree to which the tolling rule should apply retroactively, and over whether the rule is a civil or a criminal rule. Brown argues that the civil procedural rules apply, in part because one of the statutes governing the filing of petitions for review, Wis. Stat. § 808.10, is located within the chapters of the statutes which govern civil procedure. He further asserts that under either civil or criminal analysis, he is entitled to relief.

¶ 12. The State initially advances that the tolling rule is a criminal procedural rule. It then briefly asserts that if the rule is civil in nature, it should be applied prospectively. Ultimately, it argues that regardless of whether it is civil or criminal, prospective or retroactive, it should apply only to cases pending on direct review or not yet final when Nichols was decided and to pro se prisoners who filed habeas petitions seeking a prison mailbox rule before Nichols was decided but whose petitions were not yet acted upon by this court.

¶ 13. In general, rules for criminal procedure apply retroactively only to those cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328 (1987); State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993). The standards for civil procedural rules differ in that retroactive application is presumed. Browne v. WERC, 169 Wis. 2d 79, 112, 485 N.W.2d 376 (1992). In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court established factors to consider in determining whether the presumption is overcome such that the new civil rule would apply prospectively. This court adopted the Chevron standards in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979).

¶ 14. We determine that civil standards apply. Nothing in the language of the statutes setting a time limit for the filing of petitions for review, Wis. Stat. §§ 808.10 or 809.62, indicates that the statutes are criminal in nature. Sections 808.10 and 809.62 apply to petitions regarding both civil and criminal matters. While the tolling rule in question applies only to petitions filed by pro se prisoners, those prisoners may file petitions relating to matters other than their convictions — matters that are civil in nature. We conclude, much as the court did in M.W. v. Monroe County DHS, 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984), that because the statutes at issue are essentially civil in nature, we will apply the civil standards set forth in Chevron and Kurtz.

¶ 15. We next consider whether the application of the new rule should be retroactive or prospective. To aid in this determination, Chevron/Kurtz sets forth three factors for our consideration:

(1) Does the rule "establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed"?
(2) Will retroactive operation further or retard the operation of the rule in question?
(3) Will retroactive application produce substantial inequitable results?

Chevron, 404 U.S. at 106.

¶ 16. Wisconsin generally adheres to the doctrine that retroactive application of judicial decisions' is the rule, not the exception. State v. Thiel, 2001 WI App 52, ¶ 7, 241 Wis. 2d 439, 625 N.W.2d 321. Yet, sometimes retroactive application of a new rule is unsettling because of a justifiable reliance on a contrary view of the law.

¶ 17. The Chevron/Kurtz factors require us to consider if reliance on a contrary rule of law was so justified and so detrimental as to require deviation from the traditional retroactive application. A prospective application of a new rule is used to mitigate hardships that may occur by retroactive application. Harmann, 128 Wis. 2d at 378-379.

¶ 18. The first Chevron/Kurtz factor inquires whether the new rule overruled clear past precedent or decided an issue of first impression whose resolution was not clearly foreshadowed. Nichols did not overrule any clear past precedent. Brown contends, however, that because this court "relied heavily" on Houston, 487 U.S. 266, its adoption of the tolling rule in Nichols was clearly foreshadowed. We disagree.

¶ 19. Until the Nichols decision, the 30-day period for filing petitions for review operated for 23 years without a tolling rule for pro se prisoners. Thirteen years elapsed between the adoption of the "prison mailbox rule" announced in Houston and our decision in Nichols. After discussing the proposed "prison mailbox rule," we declined to adopt it and reaffirmed that depositing a petition in a prison mailbox does not constitute a filing of the petition. Nichols, 247 Wis. 2d 1013, ¶¶ 11, 20, 24.

¶ 20. Instead, we embraced the tolling rule that the court of appeals had adopted in Shimkus, 239 Wis. 2d 327. Admittedly, determining whether Shimkus foreshadowed our decision in Nichols presents us with a close call. We note, however, that Shimkus involved a different statute and different procedures. Id. at ¶¶ 24-25. We conclude that while the Shimkus decision certainly guided our decision in Nichols, neither Houston nor Shimkus clearly foreshadowed the adoption of a tolling rule for pro se prisoners filing a petition for review.

¶ 21. The Chevron/Kurtz second factor draws us to consider if retroactivity would further or retard the operation of the Nichols tolling rule. Brown argues that retroactivity would further the operation of the rule and would ensure that similarly situated prisoners would be treated alike. Conversely, the State argues for limited retroactivity and contends that a full retroactive application of the rule is more apt to retard than promote its purpose of aiding pro se prisoners who timely give their petitions to proper prison authorities for mailing. The State asserts that it would be difficult or impossible in many cases to determine whether petitions dismissed as untimely were actually timely delivered to prison officials for mailing.

¶ 22. We agree with the State that full retroactivity could create a myriad of problems which frustrate the operation of the rule. We acknowledged in Nichols that both Nichols and the State agreed that the use of a certificate of mailing would resolve factual questions regarding whether a prisoner had timely and appropriately delivered a petition for mailing. Nichols, 247 Wis. 2d 1013, ¶ 27. We concluded that use of such a certificate "would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified." Id.

¶ 23. In Nichols we also noted the State's averment that "many prisons do not have a general 'log-in' system that identifies the date on which a prisoner submits outgoing mail." Id. Nichols put both prison officials and prisoners on notice of the importance of keeping such records.

¶ 24. Full retroactivity of the tolling rule would include petitions filed before Nichols, and before we discussed including an affidavit or certificate of mailing. Petitioners who had not taken the step of including an affidavit or certificate of mailing would often have no evidence other than their testimony regarding whether they timely delivered for mailing a petition for review. The State would often have no evidence regarding timeliness other than the fact of the untimely filing. Under these circumstances, a court would have no adequate method of determining whether the tolling rule should apply in a given case. Thus, we agree with the State that limited retroactivity here promotes the purpose of the rule but that full retroactivity is more apt to frustrate the operation of the rule.

¶ 25. The third Chevron/Kurtz factor requires us to consider the equities of retroactivity. We note again the difficulties with full retroactivity in determining whether a petition dismissed as untimely would have been timely under the tolling rule. Although the burden of persuasion regarding proof of mailing is on the prisoner, the State may be disadvantaged due to the passage of time in countering prisoners' claims of timely delivery of petitions for review. We also consider the interests that the State, crime victims, and others have in the finality of cases. Full retroactive application could produce inequitable results because it opens up cases that have long been thought by everyone, including crime victims, to have been final.

¶ 26. Having considered the three Chevron/Kurtz factors, we conclude that neither a prospective nor a fully retroactive application of the tolling rule we adopted in Nichols is warranted. A limited retroactive application best promotes the operation of the rule and produces the most equitable results. Such an approach permits some pro se prisoners to benefit from the new rule without the accompanying difficult proof problems which frustrate the operation of the rule. Additionally, a limited retroactive application recognizes the value of finality of cases and the inequities that result from reopening cases thought to be long since closed.

¶ 27. Limited retroactive application also is consistent with our holding in Schmelzer and the court of appeals holding in Thiel. State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258-59, 548 N.W.2d 45 (1996); Thiel, 241 Wis. 2d 439, ¶¶ 18-19. In both cases, the court determined that a new rule should apply to matters on direct appeal that are not final before the date we adopted the new rule. Schmelzer also extended its application to petitioners who had raised the issue in habeas petitions that were still pending before this court.

¶ 28. Brown's petition for review was final and he had no pending habeas petition at the time we adopted the tolling rule in Nichols. His petition for habeas corpus was denied on October 6, 2000, and his opportunity to petition the United States Supreme Court for certiorari had expired. We issued the Nichols decision on November 6, 2001, approximately a year later. In fact, we had not even granted Nichols' petition for review at the time we denied Brown's petition. Brown's petition therefore does not fall within the limited ret-roactivity appropriate for the tolling rule.

I — I HH h-1

¶ 29. Brown asserts that a decision to apply the tolling rule in such a way as to deny him relief is unjust. He contends that he and Nichols were in virtually the same situation and took virtually the same actions in seeking review of their cases. He notes that he filed a petition for review advocating a prison mailbox rule, and that we denied his petition only shortly before granting review of Nichols' petition. Brown advances that our decision to deny his petition but to grant Nichols' petition was "somewhat of an arbitrary selection . . . bordering on serendipity."

¶ 30. We agree with Brown's argument that he and Nichols are similarly situated parties — the facts and procedural histories of the two cases are strikingly similar.

¶ 31. We addressed a similar situation in Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986). In Harmann, the petitioner (Harmann) filed a negligence action against two adults who furnished alcohol to a minor who consumed the alcohol and then caused injury to Harmann. Id. at 372. The complaint was dismissed by the circuit court because the Wisconsin Supreme Court had held in Olson v. Copeland, 90 Wis. 2d 483, 280 N.W.2d 178 (1979), that the negligent furnishing of alcohol was not the cause of the injury. Harmann, 128 Wis. 2d at 372. This court denied Harmann's petition to bypass the court of appeals. While the appeal was pending, this court issued Sorensen v. Jarvis, 119 Wis. 2d 627, 644-45, 350 N.W.2d 108 (1984), overruling Olson.

¶ 32. Meanwhile, this court held in Koback v. Crook, 123 Wis. 2d 259, 276, 366 N.W.2d 857 (1985), that a social host was liable for injury caused by a minor to whom the host had negligently furnished alcohol. The Koback decision, issued on April 30, 1985, was applied prospectively. The court employed the device of "sunbursting," determining that the holding would apply prospectively where "the conduct which causes injury occurs on or after September 1,1985," and also to the parties in the case. Id. at 277; see Harmann, 128 Wis. 2d at 373-74, 378. Harmann's action was not covered by the prospective application of the Koback holding, and the court of appeals affirmed the dismissal of the case on May 29, 1985. Harmann, 128 Wis. 2d at 372-74.

¶ 33. This court then determined that a failure to apply the Koback rule to Harmann would be unjust. The court stated that "[t]he chance, but determinative, circumstance here is the timing of the Harmanns' petition to bypass." Id. at 383. The court noted that while Harmann's case was pending in the court of appeals, it granted the petition to bypass in Koback. It stated:

The Kobacks and the Harmanns were pursuing the same claims in the circuit court, the court of appeals, and this court during the same time period. Because of the procedural histories of the Sorensen, Koback and Harmann cases and our remanding Harmann to the court of appeals rather than holding it pending the outcome of Sorensen, the plaintiffs in Koback and Sorensen received the benefit of our new rules, while the Harmann plaintiffs did not.
A basic tenet in our judicial system is that individuals similarly situated should be treated similarly. When we examine the procedural histories of the Sorensen, Koback and Harmann cases, we find it is hard to justify denying the Harmanns the benefit of the Koback rule when months before Koback they presented the same issue to this court. Had we withheld our decision on the Harmann petition to bypass perhaps the Kobacks, rather than the Harmanns, would now be seeking relief from the rule of prospectivity.

Id. at 384-85.

¶ 34. The court concluded based on the similar procedural histories of the cases that it could not "in all fairness deny the Harmanns their day in court." Id. at 386. It noted that "[b]ut for our decision to deny the Harmann petition to bypass, the Harmann case would have established the rule of liability and subjected the defendants in this case to liability." Id.

¶ 35. We think that the reasoning of Harmann is applicable to this case. As we noted above, the procedural histories of Nichols and Brown are extremely similar. Brown's motion for reconsideration was denied September 5, 2000. Nichols' habeas petition was denied September 12, 2000. Brown filed a habeas petition on October 3, 2000. Nichols moved for reconsideration on the very same day, October 3, 2000. Yet, we denied Brown's habeas petition and we granted Nichols' motion for reconsideration.

¶ 36. We conclude that because Brown and Nichols are similarly situated parties, it would be unjust under these circumstances to grant relief to Nichols while denying relief to Brown. We therefore grant Brown's petition for writ of habeas corpus and reinstate his petition for review.

IV

¶ 37. In sum, we hold that the tolling rule for the filing of petitions for review by pro se prisoners set forth in Nichols, 247 Wis. 2d 1013, applies retroactively to cases on direct appeal that were not finalized before the date we adopted the tolling rule and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. We further conclude that because Brown is "similarly situated" to Nichols, and because it would be unjust to deny him relief under the procedural history of this case, we grant Brown the relief he has requested.

By the Court. — The petition for writ of habeas corpus is granted; rights declared.

DIANE S. SYKES, J.

¶ 38. (dissenting). I would deny this habeas petition. This case does not present a retroactivity question in the usual sense, that is, whether a newly declared rule of law applies retroactively to cases still open on direct review or to events or conduct that predate the announcement of the rule. Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993). Rather, this case presents the more difficult question of whether a newly declared rule can be applied retroactively in a collateral attack on a judgment already final. Teague v. Lane, 489 U.S. 288, 299 (1989); State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 258-59, 548 N.W.2d 45 (1996).

¶ 39. In Harper, the United States Supreme Court standardized its general approach to retroactivity analysis. It abandoned the multi-factor test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), for civil cases, just as it had earlier, in Griffith v. Kentucky, 479 U.S. 314 (1987), abandoned the multi-factor test of Linkletter v. Walker, 381 U.S. 618 (1965), in criminal cases. Harper, 509 U.S. at 90. The Court held that:

[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

Id. at 97. The federal rules for civil and criminal retroactivity are thus now the same.

¶ 40. Because our retroactivity jurisprudence is based on that of the United States Supreme Court, we will at some point be asked to adopt, overrule Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979) (in which we adopted the Chevron Oil retroac-tivity test for civil cases), and bring our law into conformity with the now-uniform federal rule. However, we have not been asked to do so in this case.

¶ 41. As the majority notes, although the the State mentioned Harper in its brief, it declined to take a position on whether we ought to enunciate a uniform standard of retroactivity for civil and criminal cases; Brown did not even cite Harper. Majority op., ¶ 13 n.5. While it is clear that Chevron Oil is no longer good law and Kurtz should therefore be revisited, I agree that the question is better left for another case because the issue was not fully developed here. Without addressing Harper, the court continues to apply Chevron Oil, as it has since Kurtz. See majority op., ¶¶ 13-26 ("Chevron/Kurtz"). Cf. Harper, 509 U.S. at 99-100 ("[T]he Supreme Court of Virginia has simply incorporated into state law the three-pronged analysis of Chevron Oil and the criminal retroactivity cases overruled by Griffith. We reject the department's defense of the decision below.").

¶ 42. In any event, as I have noted, the retroac-tivity question in this case is narrower, and concerns whether a new rule can be applied retroactively in a collateral attack on a judgment already final. In Teague, a plurality of the Supreme Court answered this question "no" (with certain limited exceptions), a position that has since been endorsed by a majority of the Supreme Court. See Schmelzer, 201 Wis. 2d at 257 n.7, (citing Graham v. Collins, 506 U.S. 461, 466-67 (1993)). The Teague plurality was persuaded by Justice Harlan's view, articulated in Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring in part and dissenting in part), that new rules should be applied retroactively to cases on direct review and not yet final, but not to cases on collateral habeas review. Teague, 489 U.S. at 310. This distinction in retroactivity analysis is based on the nature of the judicial process on the one hand (once law is declared by an appellate court it should be applied to cases not yet adjudicated) and the nature of the habeas corpus remedy on the other (it attacks judgments that have already been reviewed and are long-since final, where the interest in repose is strong). Id. at 306.

¶ 43. The exceptions to the rule of nonretroactivity for cases on collateral review are: "First, a new rule should be applied retroactively [on collateral review] if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 307 (quoting Mackey, 401 U.S. at 692 (Harlan, J., concurring in part and dissenting in part)). "Second, a new rule should be applied retroactively [on collateral review] if it requires the observance of 'those procedures that. .. are "implicit in the concept of ordered liberty."'" Id. (quoting Mackey, 401 U.S. at 693 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)).

¶ 44. In Schmelzer, this court generally adopted the Teague rule of nonretroactivity for cases that have already become final, with a limited modification for claims that, by their nature, can "only be made through a form of collateral relief." Schmelzer, 201 Wis. 2d at 258. In Schmelzer, it was a claim of ineffective assistance of appellate counsel, which can only be pursued by writ of habeas corpus under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). Id. The court announced a new right to effective assistance of appellate counsel in the preparation of a petition for review and applied it to the petitioner Schmelzer. Then, applying Griffith and Teague, the court held that the new rule was applicable to cases in the direct appellate "pipeline" but to cases already final. Schmelzer, 201 Wis. 2d at 258-59. More specifically:

[W]e conclude that we may apply the new rule announced in this case to the defendant, Schmelzer, although, consistent with Teague, we do not apply it retroactively to cases finalized before the issuance of this opinion. This result is somewhat inequitable, in that we have afforded relief to one defendant while not allowing relief to others similarly situated — the result disfavored in Griffith. Nonetheless, we conclude it would be more inequitable, under the special situation posed here, to adopt Teague's, holding entirely and not only deny the benefit of the new rule to this defendant but also to foreclose the possibility of any new rule being created in this type of case.

Id. at 258. The court also indicated in a footnote that persons whose Knight habeas petitions were filed but not yet decided by the court were "nonfinal" for purposes of retroactivity. Id. at 259 n.9.

¶ 45. As the majority notes, Brown's case was final a year before this court decided State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292. Majority op., ¶ 28. Furthermore, the rule announced in Nichols does not fall within either of the Teague exceptions. The tolling rule is intended to compensate for the vagaries of prison mail systems and is applicable to a layer of appellate review that is permissive rather than as-of-right. It concerns neither primary, individual conduct, nor procedures that are implicit in the concept of ordered liberty.

¶ 46. Accordingly, applying Teague and Schmelzer, Brown cannot seek retroactive application of the Nichols tolling rule in this collateral habeas attack. Only Nichols himself, and others coming after him, may benefit from the new tolling rule.

¶ 47. The majority reaches a substantially similar conclusion in Part II, although it does so by a different route. Applying the Chevron/Kurtz test, the majority concludes that "neither a prospective nor a fully retroactive application of the tolling rule we adopted in Nichols is warranted." Majority op., ¶ 26. The majority decides that "limited retroactive application" of Nichols is appropriate: retroactive application to cases pending on direct appeal and not yet final, and to "pro se prisoners who had raised the issue in habeas petitions that were still pending" at the time Nichols was decided. Majority op., ¶¶ 26-27.

¶ 48. This is basically the same as applying the Harper/Griffith retroactivity rule, and adding any pro se prisoners with habeas petitions pending at the time of Nichols, pursuant to the Schmelzer footnote. In any event, Brown does not qualify for the limited retroac-tivity adopted by the majority, which the majority readily acknowledges. Majority op., ¶ 28.

¶ 49. The majority then invokes Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986), and applies Nichols retroactively anyway. In Harmann, this court made an exception to the prospective-only adoption of social host liability that it had announced a year before. In Koback v. Crook, 123 Wis. 2d 259, 277, 366 N.W.2d 857 (1985), this court held that social hosts can be liable for injury caused by minors to whom they negligently furnish alcohol, and employed the technique of "sunbursting" to limit the effect of this new liability rule, applying it to the parties in Koback but otherwise making it prospective only from a specified date four months after the date of decision. See Harmann, 128 Wis. 2d at 373-74.

¶ 50. "Sunbursting" is an exception to the general rule of retroactivity, intended to ameliorate the "inequities [that] may occur when a court departs from precedent and announces a new rule of law." Id. at 377-78. The Harmann case was pending in the court of appeals at the time Koback was decided (this court having denied the Harmanns' petition to bypass), but because of the "sunbursting," the Koback rule did not apply retroactively, as ordinarily would have been the case. This court allowed the Harmanns to take advantage of the new liability rule. Id. at 386.

¶ 51. In other words, Harmann is an exception to an exception, intended to restore retroactivity where it otherwise would have existed but for the court's "sun-bursting" of the new rule. Harmann does not address the issue of retroactivity in the context of a collateral attack on a judgment already final; it only allowed a still-pending, non-final case to move forward under the newly created rule. It is not surprising, then, that neither Brown nor the State found the Harmann case relevant enough to warrant citation here.

¶ 52. I find it ironic that the majority declines to address Harper, which at least was cited although not expounded.upon by the State, yet it grants habeas relief based on a case not cited by either party. This approach —permitting retroactivity simply because Brown is "similarly situated" to Nichols — undercuts Schmelzer's adoption of the Teague general rule of nonretroactivity in cases on collateral habeas review. I would not extend Harmann to final judgments, especially not without subjecting the issue to the adversarial process, and especially not without giving the State a fair opportunity to be heard. Therefore, I respectfully dissent.

       The petitioner had filed the petition seeking review of an unpublished decision of the court of appeals. State v. Brown, Nos. 99-2567-CR and 99-2568-CR, unpublished slip op. (Wis. Ct. App. July 6, 2000) (affirming orders denying his postconviction motions for plea withdrawal issued by the Circuit Court for Dane County, Maryann Sumi, Judge).

       Brown pled no contest to six counts of forgery-uttering, party to the crime, as a repeat offender. He was subsequently convicted and sentenced to three consecutive five-year prison terms, and to 16 years of probation, to run after his release from prison.

       Like Brown, Nichols was incarcerated in the North Fork Correctional Facility. State ex rel. Nichols v. Litscher, 2001 WI 119, ¶ 2, 247 Wis. 2d 1013, 635 N.W.2d 292.

       Wisconsin Stat. § 808.10 provides:
      A decision of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. The petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.

       The Supreme Court has abandoned the standards it announced in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), and now applies the standard it announced in Griffith v. Kentucky, 479 U.S 314 (1987) (new rules are retroactive to cases pending on direct review or not final) to new civil rules as well as new criminal rules. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993); State v. Thiel, 2001 WI App 52, ¶ 10 n.6, 241 Wis. 2d 439, 625 N.W.2d 321. The court of appeals in Thiel declined to follow Harper, noting that Harper applies only to the interpretation of federal law, and that amending Wisconsin's standards is the role of the Wisconsin Supreme Court. Thiel, 241 Wis. 2d 439, ¶ 10 n.6. In this case, although briefly noted, neither party argued or briefed the issue of whether the Harper standard should apply. Thus, we do not address the issue.

       A case is not final if "prosecution is pending, no judgment of conviction has been entered, the right to a state court appeal from a final judgment has not been exhausted, and the time for certiorari' review in the United States Supreme Court has not expired." Thiel, 241 Wis. 2d 439, ¶ 19 n.10; State v. Koch, 175 Wis. 2d 684, 694 n. 3, 499 N.W.2d 152 (1993).

       "Similarly situated parties" are those whose cases are "factually and legally similar" and "share similar procedural histories." Thiel, 241 Wis. 2d 439, ¶ 16 n.9 (citing Bell v. County of Milwaukee, 134 Wis. 2d 25, 28, 40-41, 396 N.W.2d 328 (1986)).

       "Sunbursting" is "prospective overruling" used to limit the effect of a new rule. Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).

        Harmann provided a specific remedy in a very narrow circumstance. It dealt with cases similarly situated: two cases on direct appeal (Kobeck and Harmann) just moments apart. The same is true here: two cases on collateral habeas review (Nichols and Brown) just moments apart. The dissent errs by comparing the two subsequent cases benefiting from the exception to the exception without also comparing the two original cases creating the exception to the exception. The analogy is thus not properly made and should be rejected; Harmann is not being extended here.

      In State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993), this court followed Griffith v. Kentucky, 479 U.S. 314 (1987), and abandoned the multi-factor retroactivity test in criminal cases.

       Footnote 9 of the majority opinion misses the point entirely. I do not quarrel with the majority's conclusion that the petitioner in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and the petitioner in this case may have been similarly situated at the time their respective petitions for review were denied. That does not mean that Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986), applies. Harmann and the case whose rule it applied, Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985), were direct review cases; nothing in Harmann authorizes the reopening of judgments already final for purposes of retroactive application of a new rule of law. Collateral review cases are governed by State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), and Teague v. Lane, 489 U.S. 288 (1989). The majority has sua sponte extended Harmann to cases on collateral review.


author: HOOVER, PJ.

text:
    Neil S. Hubbard, Plaintiff-Respondent, v. Shaun Messer, d/b/a Degree Systems, Defendant-Appellant.
    Court of Appeals

      No. 02-1701-FT.

      Submitted on briefs October 18, 2002.—

      Decided December 3, 2002.

    2003 WI App 15
    (Also reported in 656 N.W.2d 475.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen L. Weld, Christoher R. Bloom, and Weld, Riley, Prenn & Ricci, S.C. of Eau Claire.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Erwin H. Steiner and Steiner & Wright, LLC of Eau Claire.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 3-13-03.

   HOOVER, PJ.

¶ 1. Shaun Messer appeals a judgment ordering him to pay a penalty of 70% of the wages he previously owed, but paid, to former employee Neil Hubbard, plus Hubbard's attorney fees. The trial court ruled that the purpose of Wis. Stat. § 109.11 was to penalize employers who failed to timely pay their employees, regardless whether those wages were paid prior to court action. We conclude that the statute imposes a penalty only when, at the time the collection action is commenced in the circuit court, the wages are due to the employee and remain unpaid. Accordingly, we reverse the judgment and remand the case for further proceedings.

Background

¶ 2. The facts are undisputed. Hubbard filed a complaint with the Department of Workforce Development (DWD) for Messer's failure to pay wages. On October 28,1999, the DWD contacted Messer regarding the wage claim. The DWD concluded that Messer owed Hubbard $4,860 in back pay. On December 8, the DWD revised the amount owed, calculating that Messer owed $2,312.98 and giving him fifteen days to make the payment. On January 7, 2000, Messer had not paid this amount, and the DWD referred the case to the district attorney pursuant to Wrs. Stat. § 109.11(l)(c).

¶ 3. On February 21, the district attorney sent a letter to Messer regarding the $2,312.98. The district attorney indicated that Hubbard wanted the payment within ten days or Hubbard would enforce his rights through small claims court. On March 15, Hubbard's private counsel sent a letter to Messer indicating that if payment was not received within two days he would commence suit. On April 10, Messer issued a check to Hubbard for $2,312.98 less required withholding.

¶ 4. On April 27, the DWD issued another letter to Messer regarding a different claim by Hubbard. The DWD determined that Messer owed Hubbard an additional $1,975.28. On June 23, the DWD revised the amount to $1,560.93. On July 31, Messer issued a check for $1,560.93 less withholding. Hubbard cashed both checks.

¶ 5. On September 14, 2001, Hubbard filed an action seeking penalty wages of 100% under Wis. Stat. § 109.11 (2)(b), or a total of $3,873.91. Messer filed a motion for summary judgment because all the wages had been paid by the time the action was commenced. Hubbard contended the statute allows penalties for wages not paid when due. The trial court agreed with Hubbard and granted him summary judgment, although the court only awarded 70% damages, or $2,711.74, plus attorney fees of $1,998. Messer appeals.

Discussion

¶ 6. The sole issue is one of statutory construction, a question of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). If the terms of the statute are unambiguous, we apply them as written without any further inquiry. In re Charles R.P., 223 Wis. 2d 768, 771, 590 N.W.2d 21 (Ct. App. 1998). Here, we must determine the meaning of "wages due and unpaid" in the context of Wis. Stat. § 109.11(2)(b), which states:

In a wage claim action that is commenced after the department has completed its investigation under s. 109.09 (1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in addition to the amount of wages due and unpaid to an employee and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid. (Emphasis added.)

¶ 7. Messer contends the phrase means wages due to the employee and not yet paid at the time an enforcement or collection action is initiated in the circuit court. Hubbard contends the phrase "refers to. the failure to pay wages within the 31 day deadline imposed by [Wis. Stat. §] 109.03(1) . . . ." Section 109.03(1) generally requires that employers shall pay wages "as often as monthly." Each payment must comprise "all wages earned by [the] employee to a day not more than 31 days prior to the date of such payment." In other words, on any day when an employee earns a wage payment, the employer must pay for that day's work within thirty-one days. If the employer fails to do so, Hubbard argues that wages become "due and unpaid" as of the thirty-second day. However, we agree with Messer's interpretation.

¶ 8. Wisconsin Stat. ch. 109 concerns employees' rights to receive their full wages and receive their wages when due. See Jacobson v. American Tool Cos., 222 Wis. 2d 384, 400-01, 588 N.W.2d 67 (Ct. App. 1998); German v. DOT, 2000 WI 62, ¶ 29, 235 Wis. 2d 576, 612 N.W.2d 50. There are two routes through which employees may resolve wage claims — administrative review by the DWD or an action in the circuit court. See Wis. Stat. §§ 109.09(1) and 109.03(5).

¶ 9. Wisconsin Stat. ch. 109 does not require employees to go through the DWD first, Wis. Stat. § 109.03(5), although the administrative remedy is encouraged through the penalty structure. If an action to collect a wage claim is commenced before the DWD has the opportunity to try to compromise and settle it, the circuit court can award as a penalty against the employer and in addition to the outstanding wages no more than 50% of the outstanding wages. Wis. Stat. § 109.11(2)(a). However, if the employee waits until the DWD has attempted to resolve the matter, the court may award up to 100% of the unpaid wages as a penalty. Wis. Stat. § 109.11(2)(b).

¶ 10. Wisconsin Stat. § 109.11(2) allows penalties as a percentage of wages "due and unpaid." This phrase is not defined in ch. 109, and neither § 109.11(2)(a) nor (b) specifies any corresponding time frame. Section 109.11(3), however, explains the criminal penalties an employer may face as well as delineates what constitutes a separate offense. In subsection (3), a violation occurs when an employer fails or refuses to pay an employee wages due at the time. We presume the legislature chooses its words carefully and precisely to express its meaning. Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). If the legislature intended for civil penalties to apply to wages unpaid on their due date, this "at the time" language would have been a prudent addition to the paragraphs of§ 109.11(2).

¶ 11. Even without examining the criminal penalty section of Wis. Stat. § 109.11(3), we are satisfied that under the plain language of § 109.11(2)(b), penalties may only be applied when wages are due and unpaid at the time an enforcement action is commenced in court. Section 109.11(2)(b) unambiguously indicates that for an employee to file a wage claim action, the employee must, at the time suit is commenced, allege entitlement to wages the employer has not yet paid. That is, a claim for penalty wages does not exist independently of a claim for unpaid wages. The court first awards the unpaid wages to which the employee is entitled. Then, the court can award an additional percentage up to 100% of the wages that are due and unpaid.

¶ 12. Hubbard suggests that if we interpret Wis. Stat. § 109.11(2)(b) to allow penalties to apply only if wages are due when suit is filed, then an employer could fail to pay wages when they are due, prolong the nonpayment, and avoid penalties as long as the employer paid before trial. We are unpersuaded. We first note that § 109.11 (2) (b) allows penalties to be assessed against the wages due on the day the suit is commenced, not the day of trial. It is evident, however, that the statute's plain language permits the possibility that an employer may with impunity wrongfully delay paying earned wages. Nevertheless, because this court cannot rewrite unambiguous legislation, this concern must be addressed to the legislature. See State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997) (where the meaning of a statute is plain, words cannot be read into it or out of it for the purpose of saving one or another possible alternative).

¶ 13. In any event, if we were to accept Hubbard's interpretation, an employer could pay the wages due and consider the matter settled, only to be sued months later by an employee who never previously mentioned a penalty. This scenario is inconsistent with our preference for the finality of settlements. See Eau Claire County v. Employers Ins., 146 Wis. 2d 101, 111, 430 N.W.2d 579 (Ct. App. 1988). Moreover, in cases where wages are withheld, there may legitimate disputes over hours worked, wage rate, or other issues. The DWD's involvement is encouraged because the legislature trusts the DWD will be able to resolve most claims or the employer and employee will be able to settle their dispute without further court action or penalties.

¶ 14. Hubbard also suggests that if we agree with Messer's interpretation of Wis. Stat. § 109.11(2)(b), we undermine the purpose of Wis. Stat. ch. 109 — ensuring prompt payment of wages. Under our interpretation, once employers receive confirmation that they do owe wages — indeed, some of them may have correctly withheld payment — employers will want to pay their employees promptly, before the employee can commence suit. Also, our interpretation does not necessarily create a race to the courthouse. Both civil penalty statutes allow penalties not more than a certain percentage. See Wis. Stat. § 109.11(2)(b). The trial court thus has the discretion to not award a penalty. Thus, an employee who takes a DWD decision straight to court without allowing the employer time to even "write the check" will not necessarily be entitled to collect penalty wages when filing an enforcement action.

¶ 15. In this case, we take particular note of the timeline. In Hubbard's first wage claim, the DWD issued its initial decision on October 28,1999, and gave Messer fifteen days to pay. On November 11, Hubbard did not seek to enforce the DWD's order. On December 8, the DWD issued its revised order, again giving Messer fifteen days to pay the wages due. On December 23, Hubbard did not file suit. On February 21, 2000, the district attorney asked Messer to pay within ten days; otherwise the district attorney had been advised that Hubbard planned to seek a remedy in small claims court. On March 2, Hubbard did not file a small claims case. Instead, he retained a private attorney who sent a letter to Messer on March 15 seeking payment by March 17, threatening suit. Hubbard did not file. On April 10, Messer wrote a'check to Hubbard.

¶ 16. In the second wage claim, the DWD issued its revised opinion on June 23, again with a fifteen-day frame for payment. On July 8, no lawsuit was filed. On July 31, a check was issued to Hubbard. Both checks were cashed. Fourteen months later in September 2001 Hubbard filed for penalty wages only.

¶ 17. Hubbard had ample opportunity to enforce the DWD's rulings and collect penalties. For whatever reason, he chose not to seek the remedies available to him. Once Messer paid the back wages, Hubbard no longer had a wage claim to enforce, and thus no access to court to collect penalties. Hubbard has also failed to show, with legitimate support in Wis. Stat. ch. 109, that the phrase "wages due and unpaid" means anything other than the plain, ordinary meaning we have articulated. On remand, the circuit court will enter summary judgment for Messer, dismissing Hubbard's claims with prejudice.

By the Court. — Judgment reversed and cause remanded with directions.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 109.11(l)(c) provides:
      If an employer does not agree to compromise and settle a wage claim under this subsection, the department may refer the wage claim to a district attorney under s. 109.09 (1) ... for commencement of an action in circuit court to collect the amount of wages due and unpaid plus increased wages as specified in sub. (2) (b).

       Both parties agree that the DWD had completed its investigation, making Wis. Stat. § 109.11(2)(b) the applicable statute, not § 109.11(2)(a). Section 109.11(2)(a) applies only when the DWD has not completed an investigation.

       Paragraphs (a) through (d) of Wis. Stat. § 109.03(1) provide exceptions to this requirement, none of which applies here.

       Wisconsin Stat. § 109.03(5) provides in part: "An employee may bring an action against an employer under this subsection without first filing a wage claim with the department under s. 109.09 (1)."

       Although the two paragraphs apply at different times and have different maximum penalty percentages, the operative language is the same in both, and our interpretation of Wis. Stat. § 109.11(2)(b) also applies to § 109.11(2)(a).

       If the legislature intended the penalty provisions to apply to wages due and unpaid after thirty-one days, it could have authorized the DWD to impose penalty wages for nonpayment. There is no statutory provision that allows the DWD to assess penalty wages in a case like this. The DWD may only order penalty wages if, after the DWD has ordered an audit of the employer's records, another wage claim is filed against the employer for the same error that caused the DWD to order the audit. See Wis. Stat. § 109.11(l)(b). No statute applicable in this case allows the DWD to assess penalty wages.

       Wisconsin Stat. § 109.09(1) instructs the DWD to "investigate and attempt equitably to adjust" the claim between the employer and employee. Wisconsin Stat. § 109.11(1) advises that the DWD "may compromise and settle that wage claim" for a sum agreed to by the DWD, the employee and the employer.


author: BROWN, J.

text:
    J. Dale Dawson and Gudrun Dawson, Plaintiffs-Respondents, v. Robert J. Goldammer and Eileen K. Goldammer, Defendants-Appellants.

    Court of Appeals

      No. 01-3075.

      Submitted on briefs October 10, 2002. —
    Decided December 4, 2002.

    2003 WI App 3
    (Also reported in 657 N.W.2d 432.)

      On behalf of the defendants-appellants, the cause was submitted on the brief of David R. Sparer of King Street Law Collective, Inc. of Madison.
    There was a reply brief submitted by Jason H. Klimowicz of Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Robert G. Pyzyk and Matthew R. Jelenchick of Niebler, Pyzyk, Klaver & Wagner LLP of Menomonee Falls.
    There was an amicus curiae brief filed by Laurence J. Dupuis for Legal Action of Wisconsin, Inc.
    Before Brown, Anderson and Snyder, JJ.

       Petition for review filed.

   BROWN, J.

¶ 1. This case presents the natural corollary to Baierl v. McTaggart, 2001 WI 107, 245 Wis. 2d 632, 629 N.W.2d 277. In Baierl, our supreme court held that a landlord who includes an attorney's fees provision in a residential lease, which is specifically prohibited by Wis. Admin. Code § ATCP 134.08(3), may not enforce the terms of a lease against tenants who had prematurely abandoned the rental property. Baierl, 2001 WI 107 at ¶¶ 2, 5. The court determined that'the inclusion of the prohibited provision did not render the contract a legal nullity, but reasoned that to allow the landlord to enforce the lease would completely defeat the objectives of § ATCP 134.08(3). Baierl, 2001 WI 107 at ¶¶ 20, 40. In this case, the tenants, Robert J. and Eileen K. Goldammer, seek to enforce a lease containing a similar illegal attorney's fees provision against landlords J. Dale and Gudrun Dawson. We conclude that permitting tenants to prospectively enforce a lease that contains a provision violating § ATCP 134.08(3) would serve to advance the intent behind the regulation. We also hold that a tenant who seeks to prospectively enforce a lease is reaffirming the terms of the lease and the landlord's right to enforce the lease. We, therefore, reverse the decision of the trial court that voided the lease.

¶ 2. The facts relevant to this appeal are as follows. In 1995, the Dawsons leased a parcel of property in Washington county to the Goldammers under a written four-year rental agreement denominated a "farm lease." The property includes the residential home of the Goldammers. Under the terms of the lease, the Goldammers had two renewal options of four years each. The Goldammers properly exercised the first renewal option, which extended the lease until December 2003. The second renewal option, should the Gold-ammers choose to exercise it, would extend the lease until December 31, 2007. The lease requires the Gold-ammers to cultivate the land. The lease also contains a provision requiring the Goldammers to "pay and discharge all costs and attorney's fees and expenses that shall arise from enforcing any of the covenants of this lease by the lessor." The parties do not dispute that this provision is in direct violation of Wis. Admin. Code § ATCP 134.08(3), which prohibits the inclusion of a clause requiring a tenant to pay a landlord's legal expenses for enforcing a rental agreement. See id.

¶ 3. In August 2000, the Dawsons commenced a declaratory judgment action requesting a declaration that the lease between the parties was void and terminated by its own terms as a matter of law. The Dawsons maintained that the lease was a commercial, and not a residential, lease and the Goldammers breached the lease by failing to cultivate the land and to pay timely rent in July 2000. The court found that the lease was a residential lease, the Goldammers had paid the July 2000 rent in a timely manner and the question of whether the Goldammers cultivated the property was inappropriate for summary judgment. The court also determined that the parties had entered into an implied stipulation agreement which required the Goldammers to pay the rent into an escrow account pending the outcome of the case, and the Goldammers were obligated to pay monthly rent of $1550 beginning in July 2000. The trial court then sua sponte raised and relied upon Baierl in concluding that a violation of Wis. Admin. Code § ATCP 134.08(3) rendered the lease unenforceable by either party, leaving the parties with a month-to-month tenancy. The Goldammers subsequently closed the escrow account and withdrew the money they deposited for rent without any accounting. The Goldammers then appealed from the court's order granting the Dawsons' motion for summary judgment.

¶ 4. We review a grant of summary judgment de novo, applying the same methodology as employed by the circuit court. Town of Beloit v. County of Rock, 2001 WI App 256, ¶ 12, 249 Wis. 2d 88, 637 N.W.2d 71, review granted, 2002 WI 23, 250 Wis. 2d 555, 643 N.W.2d 93 (Wis. Jan. 29, 2002) (No. 00-1231). Summary judgment is appropriate if the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08 (1999-2000).

¶ 5. The sole question before us is whether the Goldammers can seek specific performance of the lease despite the inclusion of the illegal provision. The Gold-ammers claim that the trial court erred when it determined that the supreme court's analysis in Baierl dictated that a residential tenant could not enforce a lease against a landlord that contained a term prohibited by Wis. Admin. Code § ATCP 134.08(3). The Gold-ammers seem to assert that Baierl not only permits them to enforce the lease, but also, at the same time, allows them to avoid their obligations under the lease. The Dawsons, on the other hand, appear to posit that Baierl prohibits the enforcement of all leases containing such clauses, regardless of who is seeking to enforce the lease and the context in which enforcement is sought. Both parties misapply Baierl.

¶ 6. As a general rule, we will seek to enforce contracts deliberately made by the parties rather than set them aside. See Burstein v. Phillips, 154 Wis. 591, 594, 143 N.W. 679 (1913). This preference for enforcing bargains may give way where a contract violates a statute, rule of law, or public policy. Cont'l Cas. Co. v. Wis. Patients Comp. Fund, 164 Wis. 2d 110, 117, 473 N.W.2d 584 (Ct. App. 1991). However, it is "grave error" to assert that all contracts in violation of a statute are void or unenforceable. See Chapman v. Zakzaska, 273 Wis. 64, 66, 76 N.W.2d 537 (1956). The controlling analysis in determining whether a statutory or regulatory violation renders a contract unenforceable is the intent underlying the provision that was violated. Baierl, 2001 WI 107 at ¶ 19.

¶ 7. In Baierl, the landlord sought to enforce the terms of a lease that included the provision prohibited by Wis. Admin. Code § ATCP 134.08(3) against tenants who had vacated the rental property prior to the natural termination of the lease. Baierl, 2001 WI 107 at ¶¶ 5-7. Although it ultimately concluded that the landlord could not enforce the lease, the court indicated that a tenant would be able to enforce a lease with a prohibited provision notwithstanding the landlord's inability to enforce such a lease:

We do not view the question as whether the lease, is void, i.e., a legal nullity, because in such case no party could enforce the lease. Where a statute is intended to protect one party to a contract, that party may seek enforcement notwithstanding the violation of the statute enacted for their protection. Thus, the question in this case is not whether the lease is void. If it were, not even the tenants could enforce the lease.

Id. at ¶ 20 (citation omitted). Thus, the court recognized that a lease containing a provision violating a regulation is not necessarily void, but rather, may be unenforceable by one or both parties, and suggested that under certain circumstances, a tenant could seek enforcement of a lease containing the illegal attorney's fees provision.

¶ 8. Baierl teaches that, in some instances, refusing to permit a party to enforce a contract that includes a prohibited provision actually would frustrate rather than further public policy. Where a regulation is enacted to protect the class of persons to which the party seeking enforcement belongs, public policy may support permitting that party to seek enforcement of a contract, despite the inclusion of the prohibited provision. See Restatement (Second) of Contracts § 179 cmt. c (1981). The refusal of a remedy against such a party to a contract containing the illegal provision would penalize the very person for whose benefit the legislature declared the clause illegal. 15 Arthur L. Corbin, Corbin on Contracts § 1540 (Interim Ed. 1979). In such cases, there is no reason in the proper circumstances why the court could not grant specific performance in favor of a party for whose benefit the law was intended and against a party toward whom the legislature directed the prohibition. Id. Accordingly, to the extent that the court's decision leaves any doubt that Goldammers may seek specific performance, we must ascertain the intent and purpose of the objectives of the legislature in enacting the prohibition to determine whether the statute is intended to protect tenants.

m

¶ 9. The Baierl court's analysis of both the language of the administrative regulation and its object, history, and subject matter tells us that the prohibition on attorney's fees clauses is intended to protect tenants, and thus, a tenant could seek enforcement of a lease containing such a clause. According to the court, the regulation was part of an overall statutory and regulatory scheme established to encourage the private enforcement of legal rights. Baierl, 2001 WI 107 at ¶ 31. The regulation proscribes a provision that is properly denominated an unfair trade practice engaged in by landlords and seeks to alleviate the inherent inequality of bargaining power that exists between landlords and tenants. See id. at ¶¶ 23, 25. The court noted that in enacting the regulation the Department of Agriculture, Trade and Consumer Protection sought not only to eliminate a source of unfairness to residential tenants generally, but also, more specifically, to prevent tenants from being intimidated into forgoing their legal rights due to the fear that they would be' forced to bear the landlord's litigation expenses. See id. at ¶ 30. Thus, Wis. Admin. Code § ATCP 134.08(3) is clearly designed to protect the tenant from a provision landlords often insert solely for the purpose of discouraging tenants from enforcing their legal rights. See Baierl, 2001 WI 107 at ¶ 29. To refuse to allow a tenant in this situation to enforce the lease would stand the rationale of the Baierl decision on its head by punishing the class the regulation is intended to benefit and permitting the landlord to unfairly reap the benefit of the clause's inclusion. We therefore hold that a tenant may seek enforcement of a rental agreement that includes an attorney's fees provision in violation of § ATCP 134.08(3), and the trial court erred when it concluded that the Goldammers could not seek to enforce the lease.

¶ 10. Although we conclude the Goldammers may seek enforcement of the lease, this decision does not grant the Goldammers license to avoid their obligations under the lease. The Goldammers appear to argue that Baierl not only permits them to enforce the lease, but also prevents the landlord from asserting his or her rights under the lease. The Goldammers want the best of both worlds.

¶ 11. In Baierl, the tenants had abandoned the premises during the course of the lease and the landlord sought to enforce the lease in an attempt to compel the tenants to pay a "penalty" rent for the remaining periods when he could not lease the premises. Baierl, 2001 WI 107 at ¶¶ 5-7. The court concluded that it could not allow the landlord to enforce the lease or it would be permitting the landlord to avoid the consequences of inserting the illegal provision. Id. at ¶ 35. This makes perfect sense. Here, however, the tenants seek to prospectively enforce the lease. The tenants are' aware that the attorney's fees provision is prohibited by the ATCP regulation but nonetheless are opting for specific performance. In so doing, the tenants may not pick and choose which of the provisions they will adhere to in the future and then rely on the rationale in Baierl to prevent the landlord from asserting his or her rights under the lease. By the tenant's very action, he or she wants enforcement of the lease and is responsible for the terms of the lease. We therefore hold that while a landlord cannot seek damages for abandonment of a lease that has an ATCP violation, a tenant who seeks to prospectively enforce the lease has waived his or her rights pursuant to Baierl in the event of a breach on the part of the tenant. Accordingly, we conclude that by seeking to enforce the lease, the Goldammers are reaffirming the terms of the lease and the Dawsons' reciprocal right to enforce those provisions.

¶ 12. The Dawsons raised three issues at the summary judgment hearing: (1) the lease was a "farm lease" and not a residential lease, (2) the Goldammers had breached the lease by failing to pay rent in a timely manner in July 2000 and (3) the Goldammers had breached the lease by failing to cultivate the property. In its summary judgment order, the trial court determined that the lease was residential in nature, the cultivation issue was not proper for summary judgment, and the Goldammers had paid rent in a timely manner pursuant to the terms of the implied stipulation between the parties. The Dawsons have not challenged the trial court's rulings on these issues and thus they are not before us on appeal.

¶ 13. However, the Dawsons appear to argue that the law articulated in Baierl should not apply to this case because the Goldammers breached the lease when they removed the money "earmarked for past rent due" from the stipulated-to escrow account and refused to hand the money over to the Dawsons. The Dawsons also seem to assert that even if we determine that Baierl permits the Goldammers to enforce the lease, the Goldammers elected to void the lease when they liquidated the escrow account.

¶ 14. These arguments are premature. From the trial record it appears that at a status hearing occurring after the Goldammers appealed the summary judgment ruling, the trial court declined to address the issues of past due rent, any set-offs to the past due rent, and the effect of the closing of the escrow account until we had rendered our decision. Thus, the trial court has not issued a decision as to any of the matters the Dawsons raise on appeal. It is axiomatic that we are a reviewing court and as such we cannot address questions on those matters without a ruling or decision from the trial court. We therefore decline to address the Dawsons' arguments concerning the Goldammers' alleged breaches of the lease and how they would impact the application of Baierl to this case.

By the Court.Order reversed and cause remanded.

       The regulation prohibits rental agreement provisions that "[r]equire payment, by the tenant, of attorney's fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement." Wis. Admin. Code §ATCP 134.08(3).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.


author: ANDERSON, J.

text:
    In re the Marriage of: Julie Ann Campbell, Petitioner-Respondent, v. Larry Charles Campbell, Respondent-Appellant.

    Court of Appeals

      No. 02-0426.

      Submitted on briefs October 10, 2002. —
    Decided December 4, 2002.

    2003 WI App 8
    (Also reported in 659 N.W.2d 106.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Gerard F. Kuchler of Kuchler Law Offices, Waukesha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Kimberly A. Theobald of Law Offices of Kimberly A. Theobald, Waukesha.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 4-22-03.

   ANDERSON, J.

¶ 1. Larry Charles Campbell appeals from a circuit court order setting his child support and child support arrearages at 25% of his income. Larry argues that the order is void because it is a retroactive modification of a prior valid support order contrary to Wis. Stat. § 767.32(2w) (1999-2000). Julie Ann Campbell argues that Larry's appeal must be dismissed as untimely under Wis. Stat. § 808.04(1), which requires that an appeal be filed within ninety days of the entry of a final judgment or order. We agree with Julie; therefore, we dismiss Larry's appeal.

¶ 2. We briefly provide background and then restrict our discussion to facts relevant to the timeliness issue. On September 29, 1992, the circuit court, "using the percentage guidelines for two children of 25% (twenty-five)," ordered Larry to pay child support in the amount of $46.51 per week based upon a net personal income of $800.00 per month.

¶ 3. The September 29, 1992 order was still in place in June 1998 when Julie brought a motion for contempt against Larry for failure to notify her and the court of the change in his ability to pay support contrary to Wis. Stat. § 767.263(1) and for other relief as the court deemed just and reasonable. Julie's motion was premised on information that Larry was earning wages significantly higher than $800 per month. On August 27, 1998, a temporary order was filed requiring Larry to pay $800 per month based upon Larry's representation to the court that his income had changed to $3200 per month.

¶ 4. Subsequently, a hearing was held to address Julie's contempt motion. As a result, a series of orders followed. First, a September 29, 2000 order set child support but left the amount of arrearages unresolved until a court-ordered audit could be performed. Second, after the audit was performed, an August 7, 2001 order incorporated the audit and settled the arrearages question, leaving open only the question of attorney's fees. Third, a November 16, 2001 order settled the remaining question of attorney's fees.

¶ 5. This case requires us to interpret Wis. Stat. §§ 808.03(1) and 808.04(1) in order to decide whether Larry's appeal was timely. The goal of statutory interpretation is to discern the intent of the legislature. State v. Davis, 2001 WI 136, 248 Wis. 2d 986, ¶ 13, 637 N.W.2d 62. The court must ascertain the legislature's intent from the language of the statute in relation to its context, scope, history, and objective intended to be accomplished. Id. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of the statute over an interpretation that defeats the manifest objective of the act. Id.

¶ 6. In order to determine timeliness, we must first determine which order was the final order of the court because an appeal of right can only be taken from a final judgment or order. Wis. Stat. § 808.03(1). Once this is determined, we can discover if Larry's appeal is timely by calculating whether the appeal date was within ninety days of the final order as is required by Wis. Stat. § 808.04(1).

¶ 7. A final judgment or order is one that disposes of the entire matter in litigation as to one or more of the parties. Wis. Stat. § 808.03(1). In ACLU v. Thompson, 155 Wis. 2d 442, 445-48, 455 N.W.2d 268 (Ct. App. 1990), overruled on other grounds by Edland v. Wisconsin Physicians Service Insurance Corp., 210 Wis. 2d 638, 563 N.W.2d 519 (1997), we addressed when a judgment or order will he considered final under § 808.03(1). There, we held that a judgment disposing of a claim under 42 U.S.C. § 1983 is final even though a request for costs and attorney fees under 42 U.S.C. § 1988 remains pending. ACLU, 155 Wis. 2d at 446.

¶ 8. In Leske v. Leske, 185 Wis. 2d 628, 633, 517 N.W.2d 538 (Ct. App. 1994), we extended the ACLU holding to include other statutes and stated the rule as follows: "[T]he pendency of a claim for attorney's fees under a specific fee-shifting statute does not render a judgment or order nonfinal, provided that the judgment or order disposes of all of the substantive causes of action between the parties."

¶ 9. Most recently, in Laube v. City of Owen, 209 Wis. 2d 12, 15-16, 561 N.W.2d 785 (Ct. App. 1997), we held that:

Even if a decision on [litigation] expenses is intertwined with the merits of the case, that does not make the situation different from other attorney fee cases. Any time attorney fees are requested, the opposing side may dispute the necessity of some of the work requiring the court to consider the merits of the case. Nothing in ACLU or Leske suggests that the finality of an order on the merits might depend on the kind of analysis that will be necessary to resolve the fee issue. Furthermore, such a conclusion would cause difficulties in practice because it would leave potential appellants uncertain of whether the order on the merits is appealable until after the specific fee issues become clear.

¶ 10. Here we take the next logical step and apply the reasoning in ACLU, Leske and Laube to the family law context. In so doing, we draw the following conclusions. The September 29, 2000 order was not final because child support and arrearages both comprised the "matter in litigation" and the matter of arrearages was left unresolved in this order. See Wis. Stat. § 808.03. To conclude otherwise would be to encourage two appeals — one from the order for child support and a second from the order setting the amount of arrear-ages. Moreover, our conclusion comports with legislative intent because the provisions of § 808.03 were designed to discourage multiple or piecemeal appeals. See ACLU, 155 Wis. 2d at 448.

¶ 11. The August 7, 2001 order constituted the final order of the court. This order settled both the support and arrearages questions and the only question left to be determined was whether attorney's fees would be ordered, and if so, in what amount. The teachings of ACLU, Leske and Laube support our holding that in the family law context an order resolving the merits of a child support dispute but not an attorney's fee issue is final within the meaning of Wis. Stat. § 808.03(1). See ACLU, 155 Wis. 2d at 446.

¶ 12. Having established that the August 7, 2001 order is the final order on the merits, we can easily determine whether Larry's appeal from the final order was timely. Pursuant to Wis. Stat. § 808.04(1), Larry's right to appeal this order began to run on August 7, 2001, and ended ninety days later on November 5, 2001. Larry's appeal was filed on February 11, 2002. Larry's appeal was not timely; it therefore warrants dismissal.

By the Court. — Appeal dismissed.

       Wisconsin Stat. § 767.32(2w) provides:
      A revision of a judgment or order with respect to child support, family support or maintenance payments has the effect of modifying the original judgment or order with respect to such payments to the extent of the revision from the date on which the order revising such payments is effective. The child support, family support or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising such payments is effective.
      All references to the Wisconsin Statutes are to the 1999-2000 statutes unless otherwise noted.

       WISCONSIN Stat. § 767.263(1) provides:
      Each order for child support, family support, or maintenance payments shall include an order that the payer and payee notify the county child support agency under s. 59.53(5) of any change of address within 10 business days of such change. Each order for child support, family support, or maintenance payments shall also include an order that the payer notify the county child support agency under s. 59.53(5), within 10 business days, of any change of employer and of any substantial change in the amount of his or her income, such that his or her ability to pay child support, family support or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order is sought.

       Specifically, the September 29, 2000 order stated:
      This matter having come before the Honorable Lee S. Dreyfus, Jr., circuit court judge, on September 14, 2000. The petitioner, Julie A. Campbell, appeared in person and by her attorney Kimberly A. Theobald. The respondent, Larry C. Campbell, appeared in person, and by his attorney, Gerald E Kuchler.
      THE COURT FINDS that the respondent, Larry Charles Campbell, failed to comply with the requirements of 767.263 by failing to notify the petitioner or the clerk of courts of a substantial change in his income such that his ability to pay child support is affected.
      THE COURT FURTHER FINDS that at the time of the last order emanating from a hearing on September 22, 1992, the statutory provisions of 767.263 were in place and the law in the State of Wisconsin.
      THE COURT FURTHER FINDS that because each party had primary placement of one child, there should be no support obligation from either parent to the other for the period of January 1, 1994 through June 30, 1997.
      THE COURT FURTHER FINDS the respondent, Larry C. Campbell, in contempt of court for failure to comply with the statutory provisions of 767c263 Stats and finds him in contempt pursuant to 785.02 Stats.
      IT IS HEREBY ORDERED that the child support obligation of the respondent for the period July 1,1997 to December 31,1997 is set at $990.40 based upon his reported earnings of $3,961.60 per month.
      IT IS FURTHER ORDERED that child support for the period January 1, 1998 to December 31, 1998 is set at $1,023.53 based upon his reported gross wages of $4,094.12 per month.
      IT IS FURTHER ORDERED that child support for the period January 1,1999 to June 13,1999 is set at $1,023.53 based upon the last paystubs provided by the respondent as to his gross earnings. Child support for the period June 14, 1999 through January 31, 2000 is set at $696.00 per month based upon gross earnings of $4,094.12 and payment of child support at the rate of seventeen (17%) percent for one minor child.
      IT IS FURTHER ORDERED that the clerk of courts shall update its records and calculate net child support payments due and interest as the above amounts became due at the statutory rate.
      IT IS FURTHER ORDERED that child support arrearages for the period through June 30, 1997 are set at - 0 -.

        IT IS FURTHER ORDERED that a review hearing is set for November 9, 2000 at 9:00 a.m. to set the exact arrearage amount based upon the calculations conducted by the clerk of courts. Payment on that arrearage is withheld to November 9, 2000 at 9:00 a.m.

       Specifically, the August 7, 2001 order stated:
      The Court on its own action requested a copy of the transcript from the September 23, 1992 hearing before Judge Zick on this matter. Upon review of the transcript from that hearing, it confirms this court's position that the child support order was, in fact, a percentage order of twenty-five (25%) percent for two children and was not a dollar order.
      IT IS HEREBY ORDERED that the arrearage of record is as set forth in the audit performed by the Child Support Division dated October 31, 2000.
      IT IS FURTHER ORDERED that the respondent, Larry C. Campbell, shall pay the petitioner by wage assignment through the Wisconsin Support Collections Trust Fund $700.00 per month effective August 1, 2001.

       Specifically, the November 16, 2001 order stated:
      Based upon all the records, files, and proceedings herein, the Court having resolved the underlying motion and entered an order taking the issue of an attorney fee contribution under advisement, attorney Theobald submitting a billing for fees to the court, with Attorney Kuchler being given an opportunity to respond, I make the following findings.
      FINDINGS OF COURT:
      1. As previously determined, this was a percentage order.
      2. Respondent was not in compliance resulting in the need for the matter to come back before the Court.
      IT IS HEREBY ORDERED:
      1. Respondent shall make a contribution towards petitioner's legal fees.

        2. The contribution shall be in the amount of $1,618.75, representing Vi of petitioner's legal fees, said fees found to be reasonable.
      3. Said fees shall be paid by February 28, 2002, said fees being paid directly to Attorney Theobald.

       Wisconsin Stat. § 808.03(1) provides in relevant part:
      Appeals as of eight. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties ....
      Wisconsin Stat. § 808.04(1) provides:
      Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of judgment or order appealed from if written notice of the entry of judgment or order is given within 21 days of the judgment or order as provided in s. 806.06(5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law.

       The family law statute authorizing the award of attorney's fees is Wis. Stat. § 767.262, which states in pertinent part:

        (1) The court, after considering the financial resources of both parties, may do the following:
      (a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.

       In Larry's Notice of Appeal, he states that he is also appealing from the November 16, 2001 circuit court order regarding the award of attorney's fees. This issue has not been briefed or argued on appeal and we deem it abandoned. See Reiman Assocs., Inc. v. R/A Adver. Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981).