author: DIANE S. SYKES, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Appellant, v. Pamela L. Peters, Defendant-Respondent.
    Supreme Court

      No. 01-3267-CR.

      Oral argument March 5, 2003.

    Decided July 3, 2003.

    2003 WI 88
    (Also reported in 665 N.W.2d 171.)

      For the plaintiff-appellant the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    For the defendant-respondent there was a brief (in the court of appeals) by Terry W. Rose and Rose & Rose, Kenosha, and oral argument by Terry W. Rose.

   DIANE S. SYKES, J.

¶ 1. This case is before the court on certification from the court of appeals on a question of first-impression regarding the scope of Wisconsin's identity theft statute, Wis. Stat. § 943.201 (1999-2000). Specifically, the question is whether a defendant who misappropriates another's identity and uses it during an arrest and in subsequent bail proceedings to obtain lower bail has done so "to obtain credit, money, goods, services or anything else of value" within the meaning of the identity theft statute. Wis. Stat. § 943.201(2). We answer this question yes.

¶ 2. "Bail" is statutorily defined as "monetary conditions of release." Wis. Stat. § 969.001(1). "Monetary" means "of or relating to money." Webster's Third New International Dictionary 1457-58 (1998). Bail can consist of cash or an unsecured appearance bond or both. Wis. Stat. §§ 969.02 and 969.03. In either case, it operates as a form of credit, securing the defendant's return to court. Accordingly, a defendant who misappropriates another's identity and uses it during an arrest and in bail proceedings to obtain lower bail has stolen that identity to obtain credit or money, or both, within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).

I. FACTS AND PROCEDURAL HISTORY

¶ 3. On September 30, 2001, the loss prevention staff at a Racine Shopko store attempted to detain Pamela Lynn Peters and her son after the two had shoplifted a videogame system. During the confrontation, Peters produced a box-cutter and attempted to escape with other stolen goods. Upon arrest, Peters falsely identified herself to police as Patricia A. Panzer, d/o/b November 25,1955, of N898 Elmore Drive, Camp-bellsport, Wisconsin. Patricia Panzer is the ex-wife of Peters' husband.

¶ 4. The State charged Peters, under the falsely assumed name of Patricia A. Panzer, with armed robbery and retail theft. Peters made her initial appearance in Racine County Circuit Court on October 1, 2001. During the initial appearance, Peters continued to falsely represent herself as Patricia Panzer. The State asked for a $20,000 cash bail. Based on Peters' falsely assumed identity, Peters' attorney argued that a $1,000 cash bail was appropriate, citing Panzer's stable Camp-bellsport address, lack of a criminal record, lack of any history of failed court appearances, and valid driver's license.

¶ 5. The court commissioner set bail as follows: "What I'm going to do, it's going to be a combination cash and signature bond. Again, I'm going to knock down the cash portion somewhat, but maybe not as much as your client would like. The total bond is going to be $20,000. $10,000 cash, $10,000 signature bond."

¶ 6. The next day, on October 2, 2001, the circuit court, the Honorable Wayne J. Marik, held an eviden-tiary hearing at the State's request and made findings of fact concerning Peters' actual identity. The circuit court found that the defendant was not Patricia A. Panzer but in fact was Pamela Lynn Peters, d/o/b November 15, 1964, of 715 Main Street, Lomira, Wisconsin. The circuit court specifically found that:

[T]he person who is appearing in court today is the wife of the ex-husband of Patricia A. Panzer who was born on November 25, 1955. Further the individual present in court on at least two prior occasions has identified herself to law enforcement authorities or in connection with court proceedings as Patricia A. Panzer.

¶ 7. The court amended the case caption to reflect Peters' true identity, and then revisited the issue of bail. The State informed the court that, unlike Panzer, Peters had a record of criminal arrests including multiple counts of theft, resisting arrest, contributing to the delinquency of a child, possession of drug paraphernalia, possession of cocaine, and criminal damage to property. Furthermore, unlike Panzer, Peters had eight outstanding warrants for her arrest. After considering the new information, the circuit court concluded that there was "a very strong inference in the court's mind that the defendant was trying to establish an identity that could be verified pursuant to which she may be released and then able to flee." Having concluded that Peters was a substantial flight risk, in part because of the falsely assumed identity and previously unknown outstanding warrants, the court increased Peters' bail to $30,000 cash.

¶ 8. The State amended the complaint to reflect Peters' correct identifying information and added a charge of obstructing an officer. The State later filed a second amended complaint adding the charge that is at issue on this appeal, violation of the identity theft statute, Wis. Stat. § 943.201. The identity theft statute makes it a crime to intentionally misappropriate another's identity "to obtain credit, money, goods, services or anything else of value" without the other's consent. Wis. Stat. § 943.201(2).

¶ 9. The second amended complaint alleged that Peters told police she had lied about her true identity "because she had warrants outstanding in other jurisdictions." The complaint alleged that Peters had misappropriated Panzer's identity to obtain something of value, to wit "(1) not being taken into custody on warrants from other jurisdictions and (2) to obtain a lesser bond at the initial appearance in this matter."

¶ 10. Peters moved to dismiss the identity theft charge. She claimed that the complaint failed to allege one of the elements of the crime required by statute, specifically, that she had misappropriated another's identity to obtain "credit, money, goods, services or anything else of value." Wis. Stat. § 943.201(2). Peters argued that the doctrine of ejusdem generis as applied to the catch-all statutory phrase "anything else of value" required dismissal of the charge because bail was not like the other itemized things of value in the statute, i.e., credit, money, goods, or services. The doctrine of ejusdem generis is a "canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed." State v. A.S., 2001 WI 48, ¶ 33 n.4, 243 Wis. 2d 173, 626 N.W.2d 712 (citing Black's Law Dictionary 535 (7th ed. 1999)).

¶ 11. The circuit court granted Peters' motion and dismissed the charge. Applying ejusdem generis, the circuit court concluded that the phrase "anything else of value" in Wis. Stat. § 943.201(2) was limited to "something that is in a category of credit, money, goods, services, or having those types of characteristics having measurable value and worth in a commercial sense in the marketplace," and that "[obtaining a more favorable bond in a criminal case does not in the court's opinion fall within that category."

¶ 12. The State appealed the dismissal of the identity theft charge. We accepted the court of appeals' certification of the case and now reverse.

II. STANDARD OF REVIEW AND PRINCIPLES OF INTERPRETATION

¶ 13. This case presents a question regarding the scope and interpretation of the identity theft statute, Wis. Stat. § 943.201. Questions of statutory interpretation are reviewed de novo. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997).

¶ 14. If the language of a statute is clear on its face, we need not look any further than the statutory text to determine the statute's meaning. See Bruno v. Milwaukee County, 2003 WI 28, ¶¶ 18-22, 260 Wis. 2d. 633, 660 N.W.2d 656. "When a statute unambiguously expresses the intent of the legislature, we apply that meaning without resorting to extrinsic sources" of legislative intent. State ex rel. Cramer v. Wis. Ct. App., 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591. Statutory language is given its common, ordinary and accepted meaning. Bruno, 260 Wis. 2d 633, ¶ 20; State v. Engler, 80 Wis. 2d 402, 406, 259 N.W.2d 97 (1977). Rules of statutory construction are inapplicable if the language of the statute has a plain and reasonable meaning on its face. Id. at 406-09 (holding that canons of construction, including ejusdem generis, are inapplicable when the statute is clear on its face).

III. DISCUSSION

¶ 15. Wisconsin's identity theft statute, entitled "Misappropriation of personal identifying information or personal identification documents," provides as follows:

Whoever intentionally uses or attempts to use any personal identifying information or personal identification document of an individual to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual is guilty of a Class D felony.

Wis. Stat. § 943.201(2) (emphasis added).

¶ 16. The circuit court applied the doctrine of ejusdem generis to limit the application of the identity theft statute to cases in which another's identity is misappropriated for the purpose of obtaining something having "measurable value and worth in a commercial sense in the market place." Lower bail, in the circuit court's view, did not qualify.

¶ 17. We disagree with the circuit court's restrictive reading of the identity theft statute. There is nothing in Wis. Stat. § 943.201 that explicitly limits its application to identity thefts that are carried out to obtain something that has "commercial value" or "market value." Neither does the statute implicitly contain such a limitation.

¶ 18. The identity theft statute prohibits misappropriation of another's identity "to obtain credit, money, goods, services or anything else of value." Wis. Stat. § 943.201(2). Here, Peters is alleged to have misappropriated Panzer's identity to obtain a lower bail.

¶ 19. " 'Bail' means monetary conditions of release." Wis. Stat. § 969.001. "Monetary" means "of or relating to money." Webster's, supra, at 1457-58. Bail can also include an unsecured appearance or "signature" bond, in addition to or in lieu of cash. Wis. Stat. § 969.02(1) (misdemeanor bail) and § 969.03(1) (felony bail). The term "bond" as used in this context means "a writing... by which a person binds himself to pay a certain sum...; also: the amount of money so guaranteed — often used with give ." Webster's, supra, at 250. Bail therefore represents either cash or the promise of cash, that is, an unsecured grant of credit. In either case, bail operates as a form of credit (secured or unsecured) for the defendant's return to court. As used in this context, bail as a form of "credit" is "the balance in a person's favor in an account." Id. at 532-33.

¶ 20. Accordingly, a misappropriated identity that is used to obtain a lower bail obtains: 1) a reduced cash bail; 2) a signature bond with a lower money forfeiture; or 3) both. Therefore, because bail is statutorily defined as "monetary conditions of release," and can be expressed as either cash or a bond, or both, one who misappropriates another's identity and uses it to obtain lower bail in a criminal case has done so to obtain credit or money within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).

¶ 21. True, bail does not have "commercial value" or "market value" in the sense that it is not bought, sold, or traded in the marketplace. But it plainly does have monetary value, is expressed in terms of cash or a bond, and operates as a form of credit. The circuit court's imposition of a requirement of measurable commercial or market value unduly restricted the statute's application contrary to its terms. See Engler, 80 Wis. 2d at 408-09 (Ejusdem generis cannot be applied to alter the meaning of statutory language that is clear on its face.).

¶ 22. The circuit court arrived at this interpretation of the identity theft statute by applying the ejus-dem generis canon of construction to the catch-all phrase "or anything else of value." We have concluded, however, that bail constitutes credit, money, or both, within the meaning of the identity theft statute, because bail is statutorily defined as "monetary conditions of release," takes the form of cash, a bond or a combination of the two, and operates as a form of credit.

¶ 23. Accordingly, this case does not require us to determine the precise meaning or scope of the phrase "or anything else of value" in the identity theft statute. It is enough to note that the addition of the phrase "or anything else of value" to the itemized list of "credit, money, goods [or] services" does not narrow the meaning of "credit, money, goods [or] services." There is no purpose for the presence of the phrase "or anything else of value" except to expand the list of potential qualifying "things of value." But we do not need to determine the precise meaning or scope of the phrase "or anything else of value" or attempt to delineate the outer limits of the identity theft statute in order to decide this case. Because bail can be cash, a bond, or both, and operates as a form of credit, the misappropriation of another's identity to obtain lower bail meets the statute's requirement that the perpetrator misappropriate an identity to obtain credit or money. Wis. Stat. § 943.201(2).

¶ 24. Our decision here is consistent with the court of appeals' rejection of a narrow interpretation of the identity theft statute in State v. Ramirez, 2001 WI App 158, 246 Wis. 2d 802, 633 N.W.2d 656. The defendant in Ramirez misappropriated a social security number and used it to obtain a job. Ramirez, 246 Wis. 2d 802, ¶ 2. This occurred before the enactment of Wis. Stat. § 943.201. Id., ¶¶ 2, 4. The defendant, however, continued to hold the job and collect wages using the stolen social security number for more than a year after the effective date of the statute. Id., ¶ 3. The court of appeals concluded that Wis. Stat. § 943.201 is "targeted at much more than the isolated act of misappropriating the personal identifying information of another or the initial receipt by the defendant of a thing of value as a result of the misappropriation." Id., ¶ 16. The court concluded that because "the legislature envisioned that the theft of a person's identity would, in many instances, produce recurring episodes in which the defendant would obtain things of value as a result of the original act of identity theft," the identity theft statute "creates a continuing offense." Id.

¶ 25. Similarly here, we reject the narrow reading of the identity theft statute adopted by the circuit court. We conclude that the circuit court improperly restricted the scope of the identity theft statute to preclude its application to the facts present in this case. Resort to the doctrine of ejusdem generis to determine the scope of the statutory phrase "or anything else of value" was unnecessary here. A person who misappropriates another's identity to obtain a lower bail has misappropriated that identity to obtain credit or money within the meaning of the identity theft statute, Wis. Stat. § 943.201(2). Accordingly, we reverse the circuit court's order dismissing the identity theft charge, and remand for reinstatement of the charge and further proceedings consistent with the opinion.

By the Court. — The order of the Racine County Circuit Court is reversed and the cause remanded for further proceedings consistent with this opinion.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 26. (concurring). I agree with the majority that a

defendant who misappropriates another's identity and uses it during an arrest and subsequent proceedings to obtain lower bail does so in violation of Wis. Stat. § 943.201.

HH

¶ 27. I write separately to reflect yet again on this court's approach to statutory interpretation. The majority opinion invokes the plain meaning rule in this case, explaining that it will not look beyond the statutory text to determine a statute's meaning if the language is clear on its face. It then announces that "canons of construction. . . are inapplicable when a statute is clear" and uses this "rule" as a bar to applying the ejusdem generis canon of construction in the present case.

¶ 28. How strange. First, the plain meaning rule is itself a canon of construction. Second, many of the other interpretive techniques employed by the majority opinion to construe Wis. Stat. § 943.201 are also canons of construction. For example, the maxim that statutory language is given its common, ordinary and accepted meaning is a canon of construction. So is the rule that courts may refer to a recognized dictionary to determine the common meaning of terms, and the rule that a statutory definition declaring what a term means is binding upon the court. The majority opinion openly invokes all of these canons of construction despite concluding that the language is plain on its face. It offers no reason why the plain meaning rule permits the use of these canons, but not use of the canon of ejusdem generis.

¶ 29. The majority opinion creates a false division between the plain meaning rule and canons of construction. Proponents of the plain meaning rule reject the use of "extrinsic aids" to construction such as legislative history, history of the enactment process, committee reports, and legislative debates, when the language of a statute is "clear and unambiguous." The plain meaning rule's advocates do not, however, reject the use of "intrinsic aids" that assist in discerning whether the language of a statute is plain on its face, such as other statutes, statutory definitions, and dictionaries.

¶ 30. "Intrinsic aids" to construction, including rules of grammar and generalizations about customary habits in the use of language, are essential to any application of the plain meaning rule. "Even when a judge claims not to be construing a statute, he [or she] can not help using what he [or she] has learned about customary language usage and common understanding associated with the relevant text." The rules that words should be given their plain and ordinary meaning and that courts may resort to a dictionary to ascertain the meaning of words are simply generalizations about customary habits in the use of language that are part and parcel of the process of interpreting the meaning of a statute's text.

¶ 31. Similarly, ejusdem generis is simply a generalization about the use of words. Ejusdem generis is Latin for "of the same kind," and means that when general words follow specific words in a statutory enumeration, the general words are construed to embrace objects similar in nature to those objects enumerated by the preceding specific words. For example, ejusdem generis might suggest that the phrase "any other games" in a statute encompassing "baseball, basketball, football, and any other games" would be limited to team sports (like soccer) and not include "games" like chess or video games. An enumeration followed by a "catch all" phrase is a common drafting technique that saves a legislature from having to spell out every contingency in advance.

¶ 32. Ejusdem generis is not always an appropriate canon of construction, even when a statute includes a list of specific words followed by general words in an enumeration. The applicability of this canon must be resolved as part of a court's effort to determine the meaning of a statute's text. The canon is an "intrinsic aid" that is germane to a textualist approach to statutory interpretation; that is, it is both compatible with and necessary to the plain meaning rule, just like the other canons the majority opinion relies on in the present case.

¶ 33. The vast majority of cases coming to this court involve the interpretation of some writing, be it a statute, a constitution, a contract, or some other document. The consistency and coherence of our approach to interpretation is therefore vital. Litigants, lawyers, legislators, judges, and the citizens of Wisconsin deserve to know and understand how we approach interpretation.

¶ 34. As I have stated, proper statutory interpretation requires that a court take a comprehensive view toward discerning legislative intent that begins with consideration of the language of a statute and then looks to all relevant evidence of legislative intent including its scope, history, context, subject matter and purpose.

¶ 35. Finally, while on the topic of rules, let me turn to another rule. The majority opinion violates a basic rule of appellate decision making: courts are not to reach out and decide issues unnecessary to the case at hand. The majority opinion correctly concludes that a person is guilty of identity theft under Wis. Stat. § 943.201 when he or she misappropriates another's identity to obtain lower bail because bail falls within the statutory words "to obtain credit or money." It is thus not necessary to the present case to reach out and further state in what amounts to dicta that the phrase "or anything else of value" in § 943.201 is unduly restricted if it is interpreted to include only items with measurable commercial or market value. As I have written before, there is a growing tendency for this court to reach out and decide issues that are not squarely presented. This tendency is, I believe, detrimental to the development of Wisconsin law.

¶ 36. For the foregoing reasons, I write separately.

¶ 37. I am authorized to state that Justice WILLIAM A. BABLITCH joins part I of this opinion and that Justice ANN WALSH BRADLEY joins part II of this opinion.

¶ 38. WILLIAM A. BABLITCH, J. (concurring). "That depends on what the meaning of the word 'is' is." William Jefferson Clinton.

¶ 39. I write only to emphasize that canons .of statutory construction, such as the "plain meaning" rule, are tools, not rules. They are all designed to reach one fundamental goal: discerning legislative intent. Ignoring relevant evidence on legislative intent in the name of "plain meaning" will necessarily at times lead to an interpretation that is completely contrary to what the legislature intended.

¶ 40. Language is inherently ambiguous— perhaps not as ambiguous as the quotation above would have us believe, but the quote makes a point: plain meaning is frequently in the eye of the beholder. What is plain to one may be ambiguous to another. If good evidence as to legislative intent is present, why not use it? Accordingly, I join Chief Justice Abrahamson's concurrence.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version of the statutes.

       In accordance with the truth-in-sentencing follow-up legislation, the identity theft statute was reclassified from a Class D felony to a Class H felony. See 2001 Wis. Act 109, § 733, effective February 1, 2003. "Personal identification document" and "personal identifying information" are defined in the statute as follows: " 'Personal identification document'" means a birth certificate or a financial transaction card, as defined in § 943.41(1)(em)." Wis. Stat. § 943.201(1)(a).

        "Personal identifying information" means any of the following information:
      1. An individual's name.
      2. An individual's address.
      3. An individual's telephone number.
      4. The unique identifying driver number assigned to the individual by the department of transportation under § 343.17(3)(a) 4.
      5. An individual's social security number.
      6. An individual's employer or place of employment.
      7. An identification number assigned to an individual by his or her employer.
      8. The maiden name of an individual's mother.
      9. The identifying number of a depository account, as defined in § 815.18(2)(e), of an individual.
      Wis. Stat. § 943.201(l)(b).

        See State v. Byers, 2003 WI 86, ¶¶ 45-56, 263 Wis. 2d 113, 665 N.W.2d 729 (Abrahamson, C.J., concurring); Fox v. Catholic Knights Ins. Co., 2003 WI 87, ¶¶ 43-48, 263 Wis. 2d 207, 665 N.W.2d 181 (Abrahamson, C.J., concurring).

       Needless to say, "clarity and ambiguity are in the eyes of the beholder." Juneau County v. Courthouse Employees Local 1312, 221 Wis. 2d 630, 642 n.8, 585 N.W.2d 587 (1998).

       Majority op., ¶ 14.

       Majority op., ¶ 14.

        See State v. Delaney, 2003 WI 9, ¶ 38, 259 Wis. 2d 77, 658 N.W.2d 416 (Abrahamson, C.J., dissenting) ("Rules of statutory interpretation are designed to help courts discern the intent of the legislature, not to serve as blinders.").

        See Karl N. Llewellyn, Remarks on the Theory of Appellate ■ Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 403 (1950) ("If language is plain and unambiguous it must be given effect" is canon of construction); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 927-934 (1992) (describing inclusio unius, ejusdem generis, and the plain meaning rule as linguistic canons of interpretation); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) ('When the words of a statute are unambiguous, then, this first canon [of interpretation] is also the last: 'judicial inquiry is complete.'"); CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 n.6 (11th Cir. 2001) (the plain meaning rule "is the largest caliber canon of them all").

        Perrin v. United States, 444 U.S. 37, 43 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.").

        JVC Co. of America v. United States, 234 F.3d 1348, 1352 (Fed. Cir. 2000) ("A court may rely upon its own understanding of the terms used, lexicographic and scientific authorities, dictionaries, and other reliable information'! to determine the common meaning of a term.)

       Norman J. Singer, Statutes and Statutory Construction § 47:07, at 227-28 (6th ed. 2000) (citing Nat'l City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1133 (8th Cir. 1982)).

        See majority op., ¶¶ 14, 19.

        See Courthouse Employees Local 1312, 221 Wis. 2d at 642-43 (giving examples of extrinsic aids).

       William N. Eskridge, Jr., The New Textualism, 37 U.C.L.A. L. Rev. 621, 623-24 (1989) ("[N]ew textualism posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant. Legislative history should not even be consulted to confirm the apparent meaning of a statutory text. Such confirmation comes, if any is needed, from examination of the structure of the statute, interpretations given similar statutory provisions, and canons of statutory construction."); see also R. Randall Kelso & C. Kevin Kelso, Use of the Plain Meaning Rule to Provide a Structure for Discovering Legislative Intent, 33 Hastings L.J. 187 (1981) ("[M]odern debate over the [plain meaning] rule centers on the permissible use of extrinsic materials to determine legislative intent.") (reprinted in Singer, supra note 9, § 48A:16, at 810).

        Conn. Nat'l Bank, 503 U.S. at 253 ("Canons of construction are no more than rules of thumb that help courts determine the meaning of legislation."); CBS Inc., 245 F.3d at 1225:
      One benefit of applying canons of construction, rather than considering legislative history, is that their application does not require resort to extrinsic material. Instead, the canons of construction focus on the text actually approved by Congress and made a part of our country's laws. As the Supreme Court's recent opinion in [Circuit City Stores Inc. v. Adams, 532 U.S. 105 (2001)] confirms, where the meaning of a statute is discernible in fight of canons of construction, we should not resort to legislative history or other extrinsic evidence. Canons of construction are essentially tools which help us to determine whether the meaning of a statutory provision is sufficiently plain, in fight of the text of the statute as a whole, to avoid the need to consider extrinsic evidence of Congress' intent.

        See also Singer, supra note 9, § 47:01, at 209-11.

       Singer, supra note 9, § 46.02, at 133.

        See Circuit City, 532 U.S. at 114-15; Singer, supra note 9, § 47:17, at 273-74.

       Singer, supra note 9, § 47:17, at 281-82.

        Id. §47:18, at 287.

        See Circuit City, 532 U.S. at 114-15 ("The wording of [the statute] calls for the application of the maxim ejusdem generis"); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting):
      I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not — and especially if a good reason for the ordinary meaning appears plain — we apply that ordinary meaning.

         See Byers, 263 Wis. 2d 113, ¶ 50, (Abrahamson, C.J., concurring).

       Majority op., ¶ 25.

        See, e.g., majority op., ¶ 17:
      We disagree with the circuit court's restrictive reading of the identity theft statute. There is nothing in Wis. Stat. § 943.201 that explicitly limits its application to identity thefts that are carried out to obtain something that has ''commercial value" or "market value." Neither does the statute implicitly contain such a limitation.

        See also majority op., ¶ 21 ("The circuit court's imposition of a requirement of measurable commercial or market value unduly restricted the statute's application contrary to its terms."); majority op., ¶ 25:
      Similarly here, we reject the narrow reading of the identity theft statute adopted by the circuit court. We conclude that the circuit court improperly restricted the scope of the identity theft statute to preclude its application to the facts present in this case. Resort to the doctrine of ejusdem generis to determine the scope of the statutory phrase "or anything else of value" was unnecessary here.

        Town of Beloit v. County of Rock, 2003 WI 8, ¶¶ 56, 72, 259 Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting).

       The court has treated dicta differently depending on whether it likes the dicta. For an illustration of the difficulties the court faces when it must deal with dicta, see State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996), and State v. Hansen, 2001 WI 53, ¶ 31, 243 Wis. 2d 328, 627 N.W.2d 195.
      For discussions of Wisconsin's views on dicta, see, e.g., State v. Picotte, 2003 WI 42, ¶¶ 60-61 n.16, 261 Wis. 2d 249, 661 N.W.2d 381 (reviewing two lines of cases on dicta); State v. Leitner, 2002 WI 77, ¶ 22 n.16, 253 Wis. 2d 449, 646 N.W.2d 341 (same); State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) ("[d]icta is a statement... in a court's opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it"; dicta is not controlling); State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988) (it is not inappropriate for a court to evaluate statements in Supreme Court opinions on the basis of whether they constitute dicta); Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 602, 405 N.W.2d 327 (1987) (disapproving of discussion of reducing clause in Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984), as dicta); Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984) (adopting the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dicta, and not binding on the court); Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980) (same).

        But see Hansen, 2001 WI 53, ¶ 60, 243 Wis. 2d 328, 627 N.W.2d 195 (Wilcox, J., dissenting) (the rule in Wisconsin is that a discussion of issues not decisive of a controversy is a binding judicial act, not dicta) (citing State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981)); Kruse, 101 Wis. 2d at 392 (quoting Chase v. Am. Cartage, 176 Wis. 235, 238, 186 N.W 598 (1922)):
      It is deemed the doctrine of the cases is that when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.


source: Caselaw Access Project

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

license: Public Domain

text:
    Mary K. Sulzer, Plaintiff-Respondent-Cross-Appellant-Petitioner, v. Mary Susan Diedrich, Defendant-Appellant-Cross-Respondent.
    Supreme Court

      No. 02-0036.

      Oral argument May 27, 2003.

    Decided July 3, 2003.

    2003 WI 90
    (Also reported in 664 N.W.2d 641.)

      For the plaintiff-respondent-cross-appellant-petitioner there were briefs by C. Michael Hausman, Steven W. Jelenchick, and C. Michael Hausman & Associates, Ltd., Delafield, and oral argument by Steven W. Jelenchick and C. Michael Hausman.

    For the defendant-appellant-cross-respondent there was a brief by John K. Brendel and Brendel Law Offices, Brookfield, and oral argument by John K. Brendel.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Mary Sulzer (Sulzer), seeks review of a published court of appeals decision that reversed an order of the circuit court. The circuit court order vacated its initial order imposing a constructive trust. Instead, it awarded Sulzer a money judgment in connection with the division of the retirement accounts of her former husband, Fred Diedrich (Fred), which were to be divided equally at the time of their divorce in 1989. Upon Fred's death, the accounts were subsequently converted to survivor-ship benefits with his second wife, the respondent Mary Diedrich (Diedrich), named as the beneficiary. The court of appeals concluded that the circuit court erred when it vacated its initial order imposing a constructive trust on Sulzer's portion of these funds, and instead awarded a money judgment.

¶ 2. In analyzing the amount that should be subject to the constructive trust, the court of appeals determined that it should include the investment experience of Sulzer's portion of the accounts between the 1989 divorce and the date of Fred's death in 1995, but should not include the investment experience after Fred's death. Sulzer v. Diedrich, 2002 WI App 278, ¶ 2, 258 Wis. 2d 684, 654 N.W.2d 67. Sulzer agrees that a constructive trust should be imposed, but seeks review of the court of appeals' determination that the constructive trust should not include the investment experience of her portion of the retirement accounts after Fred's death.

¶ 3. While we agree that the imposition of a constructive trust is warranted in this case, we conclude that the constructive trust should include the investment experience on Sulzer's portion of the retirement accounts through the date of payment to Sulzer. We therefore modify the decision of the court of appeals, affirm the decision as modified, and remand to the circuit court for further proceedings consistent with this opinion.

¶ 4. The retirement accounts at issue in this case are Fred's Wisconsin Retirement System (WRS) account and his deferred compensation account administered by the Copeland Companies (Copeland) at the time of the divorce. During Sulzer and Fred's divorce proceedings, the parties entered into an oral stipulation. The following exchange took place regarding the pension benefits:

ATTORNEY D'ANGELO:... In addition, the parties have agreed to divide equally all of the respondent's interests. through the Wisconsin Retirement System with the value established as of today's date, and all of the respondent's interest in his deferred compensation program through the State of Wisconsin.
THE COURT: So, those two retirement plans or investment plans are going to be divided equally by a qualified domestic relation order.
ATTORNEY D'ANGELO: On the deferred compensation but the State of Wisconsin uses a slightly different program for division, but that is the intent of it.
THE COURT: ... We are going to use a qualified domestic relation order for the deferred compensation plan, and we are going to use another approach, which is going to end up with her owning half of his present value as of today in his retirement plan. Okay. Not exactly a domestic relation order, it's another kind of procedure used by the State whereby she ends up receiving half of it....

¶ 5. In conformity with the oral stipulation, the judgment of divorce, entered on December 12, 1989, contained a "Property Division" section that provided:

The parties will divide equally all of respondent's interest in the retirement, pension, profit sharing, or deferred compensation benefits through the Wisconsin Retirement System or the State of Wisconsin. The deferred compensation plan of the respondent is presently administered by the Copeland Companies and his retirement benefits are with the State of Wisconsin Retirement System. It is the parties' intent to have these benefits divided as to their balance on the date of the divorce trial on September 6, 1989, by a Qualified Domestic Relations Order, or an order of the Court having a similar effect.

¶ 6. After the divorce, Sulzer obtained various circuit court orders in her efforts to cause the division of the retirement accounts as provided in the 1989 divorce judgment. In August 1990, she obtained an Order for Division of Benefits directing the Wisconsin Department of Employee Trust Funds to issue Fred's benefit checks to the Clerk of Courts of Waukesha County for division of payments pursuant to the divorce judgment. The Copeland plan administrators rejected this order.

¶ 7. A Domestic Relations Order was then entered in February 1993 as to the Copeland account, ordering Fred to, among other things, designate Sulzer as the beneficiary under the account as to the amount provided in the divorce judgment. Fred failed to name Sulzer as the beneficiary as required by the order.

¶ 8. In March 1995, an Order to Divide Wisconsin Retirement System Benefits was entered as to the WRS account. The order, which was intended to be a Qualified Domestic Relations Order (QDRO), awarded Sulzer 50% of the value of the WRS account. However, WRS considered the QDRO to be unenforceable because, at that time, the QDRO exception to the WRS restrictions did not apply to marriages terminated prior to April 28, 1990.

¶ 9. Fred married Diedrich on May 9, 1992. Shortly thereafter, on May 22, 1992, he designated Diedrich as the beneficiary of the WRS and Copeland accounts.

¶ 10. Fred died in February 1995. Soon after his death, Sulzer requested her portion of the retirement accounts from WRS and Copeland, as provided in the divorce judgment. Both requests were denied because Sulzer was not designated as the beneficiary on the accounts.

¶ 11. In May 1998, the law was changed to permit the division of WRS retirement accounts in accordance with QDRO agreements reached pursuant to divorce judgments granted on and prior to April 27, 1990. In response to the change in the law, Sulzer requested that WRS implement the QDRO. WRS responded in February 1999, setting forth its reasons for refusing to honor the QDRO. WRS stated that it would not honor the QDRO in this case because Fred died prior to the change in the law and his benefits had already been paid to Diedrich as the designated beneficiary.

¶ 12. Sulzer commenced this action in December 1996, seeking a constructive trust against Diedrich, and any other appropriate just and equitable relief. After numerous delays, postponements, and adjournments, the circuit court imposed a constructive trust on the retirement accounts in September 2000. At a hearing to determine Sulzer's monetary interest in the retirement accounts, the circuit court, for reasons not fully explained on the record, vacated the constructive trust and awarded Sulzer a monetary judgment in the amount of $169,482. This is the amount that was in Sulzer's portion of the retirement accounts as of the date of divorce together with the investment experience on that portion up to the date of the hearing, as calculated by Sulzer's expert.

¶ 13. Diedrich appealed the circuit court's judgment and Sulzer cross-appealed. The court of appeals concluded that the circuit court erred in vacating the constructive trust and awarding a money judgment. Sulzer v. Diedrich, 2002 WI App 278, ¶ 2, 258 Wis. 2d 684, 654 N.W.2d 67. It determined that the circumstances warranted the imposition of a constructive trust. Id.

¶ 14. The court also concluded that Sulzer was not entitled to appreciation after Fred's death because the funds had been converted from retirement benefits to survivorship benefits. Id., ¶ 17. Further, noting that the action sounded in equity, it concluded that Sulzer was not entitled to interest because of her numerous requests for postponements and because Diedrich did not wrongfully retain the use of Sulzer's money. Id., ¶ 18. The court of appeals remanded the matter to the circuit court for imposition of the constructive trust. Id.,

II

¶ 15. In this case, we must determine whether the use of a constructive trust is warranted to give effect to terms contained in a divorce judgment. If it is, we must then address the extent to which the investment experience of Sulzer's portion of the retirement accounts should be included in the constructive trust.

¶ 16. The question of whether to impose a constructive trust sounds in equity. Singer v. Jones, 173 Wis. 2d 191, 194, 496 N.W.2d 156 (Ct. App. 1992). We apply a two-tiered standard of review in this type of case. Id. As to the legal issues, such as the construction of the divorce judgment, we apply a de novo standard. Id. As to the ultimate decision whether to grant the equitable relief of a constructive trust, we apply a discretionary standard. Id.

¶ 17. Our application of the discretionary standard of review to the ultimate decision of whether to impose a constructive trust is complicated by the procedural history of this case. Sulzer's complaint requested that the circuit court impose a constructive trust and the circuit court initially did so. However, it later vacated the constructive trust and ordered a money judgment. The court of appeals noted that the circuit court did not set forth on the record its reasoning for ordering the money judgment. Sulzer, 258 Wis. 2d 684, ¶ 8. It assumed that the circuit court did so on the grounds of unjust enrichment. Id.

¶ 18. The court of appeals then determined that one of the elements necessary to establish unjust enrichment, namely the requirement that a benefit be conferred upon the defendant by the plaintiff, did not exist here. Id., ¶ 11. It therefore concluded that the elements of unjustment enrichment had not been met and thus, as a matter of law, a money judgment was erroneously granted. Id. Accordingly, it discussed and reaffirmed the court's intial order imposing a constructive trust.

¶ 19. We first discuss the circumstances in which the imposition of a constructive trust is warranted and conclude that the court of appeals correctly affirmed the use of a constructive trust in this case. We then address the appropriate period during which the investment experience of Sulzer's portion of the retirement accounts should be included in the calculation and conclude that this period should extend from the date of the divorce until the date that the funds are paid to Sulzer.

H-i HH 1 — I

¶ 20. A constructive trust is an equitable device used to prevent unjust enrichment which arises when a party receives a benefit the retention of which is unjust to another party. Wilharms v. Wilharms, 93 Wis. 2d 671, 678-79, 287 N.W.2d 779 (1980). However, unjust enrichment alone is not sufficient to warrant imposing a constructive trust. Rather, a constructive trust will be imposed only when the party who received the property obtained it by specific means as enumerated in our case law, one of such means being the receipt of the property by mistake:

A constructive trust will be imposed only in limited circumstances. The legal title must be held by someone who in equity and good conscience should not be entitled to beneficial enjoyment. Title must also have been obtained by means of actual or constructive fraud, duress, abuse of a confidential relationship, mistake, commission of a wrong, or by any form of unconscionable conduct.

Id. (citations omitted).

¶ 21. The court of appeals concluded that the facts of this case warranted the imposition of a constructive trust. Sulzer, 258 Wis. 2d 684, ¶ 15. It noted that the intent of Sulzer and Fred was to divide the WRS and Copeland accounts equally. Id. Further, it observed that Diedrich obtained title to these accounts only because Fred, whether by mistake or otherwise, incorrectly named Diedrich as the sole beneficiary on the accounts. Id. As a result, according to the court of appeals, a portion of the funds allocated to Sulzer in the divorce judgment were being wrongfully held by Diedrich, who in equity and good conscience should not be entitled to their beneficial enjoyment. Id.

¶ 22. We agree with the court of appeals and the circuit court that the divorce judgment, both written and oral pronouncements, clearly expressed Sulzer's and Fred's intent to divide equally the retirement accounts as of the date of the divorce. Id. To allow Diedrich to retain the funds attributable to Sulzer's portion would thwart the intent of the parties and would be unjust to Sulzer.

¶ 23. Diedrich argues that the imposition of a constructive trust against her is not appropriate. She notes that there is nothing in the record to indicate that she did anything wrongful. However, as observed in Wilharms, while wrongful conduct can serve as the basis for a constructive trust, it is not necessary that the person on whom a constructive trust is imposed have committed any wrongdoing. Wilharms, 93 Wis. 2d at 678-79; see also Singer, 173 Wis. 2d at 198 n.2. A constructive trust may be warranted in circumstances in which a person obtains property as the result of a mistake, with that person not committing any wrong. Wilharms, 93 Wis. 2d at 679-80.

¶ 24. By mistake or otherwise, Fred incorrectly named Diedrich as the sole beneficiary. In addition, at the time of their divorce, Sulzer and Fred were under a mistaken belief that Fred had the ability to convey one-half of the retirement accounts to Sulzer. In Wil-harms, we noted that mistake as a grounds for the imposition of a constructive trust "may also refer to a mistake arising when property is not conveyed which the grantor intended to convey." Wilharms, 93 Wis. 2d at 680 n.2.

¶ 25. At the time of the divorce proceedings, Sulzer and Fred were operating under the assumption that it would be possible to divide the retirement accounts equally. The divorce judgment indicates that the parties intended that Fred assign one-half of each of his retirement accounts to Sulzer. As it turned out, the then existing law did not permit Fred to make such an assignment. This mutual mistake in 1989 and the naming of Diedrich as the beneficiary of the accounts in 1992, together with the unjust enrichment that results from Diedrich's retention of Sulzer's portion of the accounts, are grounds for the imposition of a constructive trust.

¶ 26. Diedrich questions whether a constructive trust can be imposed in this case because, at the time of the divorce judgment, the law did not permit Fred to assign the retirement accounts to Sulzer. She maintains that since the use of a QDRO was illegal, Sulzer is entitled to nothing. Additionally, she asserts that the imposition of a constructive trust in this case will encourage others to agree to provisions that are contrary to the law in case the law should some day be changed.

¶ 27. The judgment of divorce did not specifically require a QDRO, but provided for a QDRO "or an order of the Court having a similar effect." We need not speculate whether a legal mechanism existed at the time of the divorce that would have sufficiently ensured the division of the accounts to comply with the divorce judgment. As the Lindsey case indicates, the circuit court had broad discretionary powers over the mechanism of the division of pensions in order to fulfill the intent of the parties to divide them equally. Lindsey v. Lindsey, 140 Wis. 2d 684, 686, 412 N.W.2d 132 (Ct. App. 1987).

¶ 28. Here, there is no dispute as to the intent of the parties to divide the value of the pensions equally as of the time of the divorce. That they were not able to identify a legal mechanism at the time was unfortunate, but this does not preclude the circuit court from now imposing a constructive trust to accomplish their intent.

¶ 29. With respect to Diedrich's allegation that imposing a constructive trust in this case will somehow encourage others to agree to provisions that are contrary to law, there is no indication that any of the parties knowingly agreed to a provision that was not legally permissible. If Sulzer had known that there was no legal mechanism to divide the benefits at issue and had intentionally defied the law, she would not be able to assert that her conduct was based on a mistake that could serve as grounds for imposing a constructive trust.

¶ 30. In sum, we conclude that Diedrich's retention of funds that are attributable to Sulzer's portion of the retirement accounts would be unjust to Sulzer. Further, the transfer of those funds to Diedrich resulted from a mutual mistake regarding the ability to divide the accounts at the time of the divorce and from Fred's naming of Diedrich as the beneficiary of all of the accounts, including Sulzer's portion. We therefore determine that the imposition of a constructive trust is warranted in this case.

IV

¶ 31. We turn now to a discussion of the appropriate period during which the investment experience of Sulzer's portion of the retirement accounts should be included in the calculation of the amount subject to the constructive trust. The court of appeals determined that Sulzer is not entitled to the investment experience of her portion of the retirement accounts past the date of Fred's death. Sulzer, 258 Wis. 2d 684, ¶ 17-18. It concluded that, upon Fred's death, the funds at issue converted from retirement and deferred compensation benefits to survivorship benefits. Id., ¶ 17.

¶ 32. Thus, according to the court of appeals, Sulzer is entitled only to the portion of the accounts that she would have received upon Fred's death. Id., ¶ 17-18. Diedrich goes further and argues that if Sulzer is entitled to anything, the amount should be frozen as of the date of the divorce.

¶ 33. We disagree with both the court of appeals and Diedrich. In this case, the constructive trust should include the investment experience of Sulzer's portion of the accounts up until the date of payment.

¶ 34. To support her argument that the amount should be frozen as of the date of the divorce, Diedrich cites the oral stipulation in which the value to be divided was to be "established as of today's date." She also cites the divorce judgment in which the accounts are to be "divided as to their balance on" September 6, 1989. Diedrich argues that there would be no need to make specific reference to a balance on a specific date if the parties did not intend that to be a limitation.

¶ 35. The oral stipulation and the divorce judgment do contain a limitation, but the limitation is not an elimination of Sulzer's entitlement to the investment experience of her portion after the date of the divorce. Rather, the limitation provides that she is not entitled to any portion of any of Fred's contributions to the retirement accounts that are attributable to periods after the date of the divorce or the investment experience of such contributions.

¶ 36. The oral stipulation and the divorce judgment do not contain an express provision regarding the calculation of investment experience on Sulzer's portion of the accounts. Nevertheless, both the oral stipulation and the divorce decree reflect Fred's and Sulzer's intent to divide the retirement accounts equally. However, it was not possible to immediately effect the division. We conclude that, to accomplish the intent of the parties of dividing the retirement accounts equally as of the date of the divorce, Sulzer should be entitled to the investment experience on her portion of the accounts.

¶ 37. This conclusion is consistent with our analysis in Washington v. Washington, 2000 WI 47, 234 Wis. 2d 689, 611 N.W.2d 261. In that case, we construed' a divorce judgment dividing a pension fund to include investment experience. The judgment, which involved a lump sum share of a pension not payable immediately, was silent on the issue of whether investment experience would be included and when and how payment would be made. Id., ¶ 6. We determined that this silence made the judgment ambiguous. Id., ¶ 32. We noted that the circuit court went to great lengths to ensure that the property was divided equally and that failure to consider allocation of investment experience on the pension could result in an unequal division of property. Id., ¶ 28.

¶ 38. The same justifications that exist for extending the investment experience beyond the date of the divorce also apply to extending the investment experience beyond Fred's death. There is no reason why the investment experience attributable to Sulzer's portion after Fred's death should accrue to the benefit of Diedrich rather than Sulzer.

¶ 39. In Washington, we noted that the failure to divide investment experience would give the husband approximately 21 years of the investment experience on the lump sum awarded to both spouses. Id. We observed that a decision that gave the husband all of the investment experience on both shares appeared contrary to the circuit court's objective to divide the property equally and appeared unfair. Id.

¶ 40. Similar to Washington, the failure to include the investment experience up until payment to Sulzer appears contrary to the objective of the divorce judgment and the intent of the parties to divide the property equally. Further, it appears unfair to Sulzer to allow Diedrich to retain seven years of investment experience on Sulzer's portion of the accounts. Diedrich is entitled to no more and no less than what Fred would have received.

¶ 41. The court of appeals concluded that the funds at issue are no longer retirement benefits but were converted to survivorship benefits that were distributed upon Fred's death. Sulzer, 258 Wis. 2d 684, ¶ 17. The fact is, however, that the funds remain in WRS and Copeland accounts and are traceable. This may be a different case if Diedrich had removed the funds after Fred's death, making tracing impossible.

¶ 42. However, that is not the case here. The funds remain in WRS and Copeland accounts and the actual investment experience can be easily traced. We conclude therefore that the constructive trust should include the investment experience of Sulzer's portion of the accounts through the date of payment to Sulzer.

¶ 43. We remand this case to the circuit court for the appropriate calculations. On remand, the circuit court should order Diedrich to cause the payout of Sulzer's portion of the accounts, including the investment experience. We note that a circuit court, in this type of case, has the discretionary authority to order an individual to select a specific retirement payout option to accomplish a division of retirement assets. Lindsey, 140 Wis. 2d at 686. Similar to Lindsey, the circuit court in this case has the discretionary authority to order Diedrich to select the payout option of the WRS and Copeland accounts that will allow her to pay over Sulzer's portion of those accounts promptly and completely.

¶ 44. In sum, we conclude that the circumstances of this case warrant the imposition of a constructive trust and that the constructive trust should include the investment experience on Sulzer's portion of the retirement accounts through the date of payment to Sulzer. We therefore modify the decision of the court of appeals, affirm as modified, and remand to the circuit court for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is modified and affirmed and, as modified, the cause is remanded.

DIANE S. SYKES, J.

¶ 45. (concurring in part, dissenting in part). I agree with the majority's decision to impose a constructive trust in favor of Sulzer. I disagree, however, with Part IV of the majority opinion to the extent that it authorizes the imposition of a constructive trust in an amount that includes the investment experience of the retirement accounts up to the date of payment. I would affirm the court of appeals on all issues, including its determination that the constructive trust should include the investment experience of the retirement accounts only until the date of Fred Diedrich's death.

¶ 46. As the majority notes, a constructive trust is an "equitable device created by law to prevent unjust enrichment." Wilharms v. Wilharms, 93 Wis. 2d 671, 678, 287 N.W.2d 779 (1980); majority op., ¶ 20. While the equities in this case fully support the imposition of a constructive trust against Mary Diedrich even though she is not at fault, her blamelessness should come into play in the discretionary determination of the extent to which investment experience on the retirement accounts is awarded.

¶ 47. The mutual mistake that precipitates the need to impose a constructive trust in this case justifies an award that includes the investment experience on Sulzer's portion of the retirement accounts up to the date of Fred Diedrich's death; it does not justify forcing Mary Diedrich to disgorge the investment experience on her survivorship interest in her deceased husband's retirement accounts. Mary Diedrich played no role in the mistake which led to the unjust deprivation of Sulzer's portion of the retirement accounts. The dispute here is between two essentially innocent parties, one who was a party to the original mistake and one who was not.

¶ 48. The majority finds it significant that the funds remain in the WRS and Copeland accounts and are therefore traceable. Majority op., ¶¶ 41-42. Mary Diedrich should not be penalized for choosing to leave her survivorship benefits in the retirement accounts. I would conclude, as did the court of appeals, that a constructive trust should be imposed in favor of Sulzer in an amount equal to one-half the value of the retirement accounts as of the date of divorce, plus investment experience up to the date of Fred Diedrich's death. Sulzer is certainly equitably entitled to that amount of investment experience; an amount that encompasses the post-death investment experience is harder to equitably justify under the circumstances here.

¶ 49. The constructive trust equities distinguish this case from Washington v. Washington, 2000 WI 47, 234 Wis. 2d 689, 611 N.W.2d 261. As the majority notes, Washington was a divorce case in which the husband and wife sought to divide the husband's pension. Majority op., ¶ 39. The dispute over the proper valuation of the pension fund was between the divorcing parties, and the divorce judgment specified that the pension was to be divided equally between the parties. Id. Here, the dispute is no longer between the divorcing parties but between a first and second wife over a deceased husband's retirement accounts; the determination of the appropriate valuation of the constructive trust award turns on what is equitably required under the circumstances, not what is required to effectuate an equal property division in a divorce, as in Washington.

¶ 50. Mary Diedrich is an innocent non-party to the mistake which justifies the imposition of the constructive trust in favor of Sulzer. She has suffered the loss of her husband and a prolonged court battle over a legal mistake she had no part in. I would conclude that Sulzer is equitably entitled to a constructive trust in the amount of one-half the value of the retirement accounts as of the date of divorce, plus investment experience up to the date of Fred Diedrich's death. I dissent from that part of the majority opinion which awards investment experience through the date of payment; in all other respects, I concur.

¶ 51. I am authorized to state that Justice JON E WILCOX joins this concurring and dissenting opinion.

        Sulzer v. Diedrich, 2002 WI App 278, 258 Wis. 2d 684, 654 N.W.2d 67 (reversing an order of the circuit court for Waukesha County, Donald J. Hassin, Jr., Judge).

       We use the term "investment experience" to refer to the actual gains and losses on Sulzer's portion of the retirement accounts. We note that the circuit court and the court of appeals variously'referred to this concept as "earnings" and "interest and appreciation."

       At the time of the divorce, Fred's deferred compensation plan was managed by the Copeland Companies. Apparently, the company managing the plan has since changed. However, for clarity, we refer to the account holding the deferred compensation benefits as the Copeland account, as did the circuit court and the court of appeals.

       We address the constructive trust issue in this case even though Diedrich did not file a petition for cross-review requesting review of this issue. As a general rule, "a party may not raise a new issue in this court that will require a modification of the decision of the court of appeals without filing a petition for review or cross review." Ranes v. American Family Mut. Ins. Co., 219 Wis. 2d 49, 54 n.4, 580 N.W.2d 197 (1998). Here, the issue of whether the facts warranted the imposition of a constructive trust was not properly raised. Nevertheless, we exercise our discretionary power to review this issue. A petition for review of a court of appeals decision brings the entire record before us. Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989). Once a case is before us, it is within our discretion to review any issue which the case presents. See id.

       Wisconsin Stat. § 40.08(1) (1987-1988) provided in relevant part:
      The benefits payable to, or other rights and interests of any member, beneficiary or distributee of any estate under any of the benefit plans administered by the department... shall not be assignable, either in law or equity, or be subject to execution, levy, attachment, garnishment or other legal process except as specifically provided in this section.

       Currently, the type of division sought by Sulzer and Fred can be accomplished by a qualified domestic relations order (QDRO). If Fred were alive, the division of the accounts could be accomplished with a QDRO. Wis. Stat. § 40.08(lm) (2001-2002) contains the rules pursuant to which a qualified domestic relations order issued on or after January 1,1982 can be used to divide the accumulated rights and benefits of participants whose marriages have been terminated by a court on or after January 1, 1982. However, because Fred is deceased and the accounts have been titled in Diedrich's name, a QDRO cannot be used to accomplish the division.

       We note that the expert's calculations were made as of August 8, 2001, the date of the circuit court judgment. Remand is appropriate not only to determine the investment experience between that date and the date of payment, but also to consider whether any changes in the law may have occurred since the date of the judgment that could affect the valuation.
      At oral argument, Diedrich asserted that calculations upon remand should take into consideration that Fred died before reaching age 50. It is unclear from the record if the calculations need to be modified to reflect his age at the time of death. In addition, both at oral argument and in her reply brief, Sulzer acknowledged that the amount paid to her should be reduced by the amount of the tax consequences to Diedrich that are directly attributable to the payout of Sulzer's portion.


text:
    In the Matter of Disciplinary Proceedings Against Sharon A. Davison, Attorney at Law: Board of Attorneys Professional Responsibility, Complainant, v. Sharon A. Davison, Respondent.
    Supreme Court

      No. 00-1503-D.

      Decided July 7, 2003.

    2003 WI 101
    (Also reported in 665 N.W.2d 197.)
   IT IS ORDERED that the license of Sharon A. Davison to practice law in Wisconsin is reinstated effective the date of this order.

IT IS FURTHER ORDERED that within 60 days of the date of this order Sharon Davison shall pay the Office of Lawyer Regulation the cost of these reinstatement proceedings now totaling $1835.22 as detailed in the OLR statement filed in this court. If these costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Sharon A. Davison to practice law in this state shall remain suspended until further order of this court.

IT IS FURTHER ORDERED that the reinstatement of Sharon A. Davison's license to practice law in this state is subject to her compliance with the current CLE requirements as outlined above.