author: FINE, J.

text:
    Philip T. Sliwinski, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the City of Milwaukee, Defendant-Respondent.
    Court of Appeals

      No. 2005AP104.

      Submitted on briefs December 27, 2005.

      Decided January 24, 2006.

    2006 WI App 27
    (Also reported in 711 N.W.2d 271.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jonathan Cermele of Eggert & Cermele, S.C., of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant E Langley, city attorney, and Bruce D. Schrimpf, assistant city attorney, of Milwaukee.

      Before Wedemeyer, EJ., Fine and Kessler, JJ.
   FINE, J.

¶ 1. Philip T. Sliwinski appeals the trial court's order affirming on certiorari-review a decision of the Board of Fire and Police Commissioners of the City of Milwaukee upholding Sliwinski's discharge from his job as a City of Milwaukee police detective. Sliwinski contends that the Board denied him his rights of confrontation and access to potential witnesses who might corroborate his assertions of innocence. We agree and, accordingly, reverse and remand to the Board for further proceedings.

I.

¶ 2. This case started as a sting operation on August 31, 2000, to see if information given to the Milwaukee Police Department that Edwin Bonilla, then a Milwaukee police detective, had been stealing drug money. The operation was conducted by agents of the Federal Bureau of Investigation at the request of and in coordination with the Department. Two adjoining rooms were rented at a Milwaukee hotel, and the FBI set up in both of the rooms closed-circuit video surveillance. The FBI agent in charge of the operation, John Steven Klugiewicz, testified that they did not use "live audio" during the surveillance. Twenty-three thousand dollars was placed in one of the rooms. The money was packaged to look like drug money — rubber-banded rolls in a paper bag.

¶ 3. After the stage was set, Bonilla was told to go to the hotel to investigate possible drug dealing. He did, and asked three other Milwaukee detectives to go with him: Sliwinski, Frank A. Velasquez, and Dale Jackson. When they arrived at the hotel, Bonilla and Velasquez went to the rooms, which apparently were not then occupied. They were let in by someone whom they believed was a hotel housekeeper. Sliwinski and Jackson stayed in the car.

¶ 4. The detectives searched the rooms, and Bon-illa found the money. Sliwinski testified that he was in the rooms when Bonilla found the money, having left Jackson in the car. Bonilla told the Board that the three — Bonilla, Sliwinski, and Velasquez — discussed taking some of the money:

once we found the money, a conversation initiated and about [sic] taking some of this money. And actually I do remember vividly that Phil Sliwinski stated that maybe we should take it all. I did not — we got into a further conversation with [Velasquez], myself and [Sliwinski], and we came up with this plan to take a thousand each.

Sliwinski and Velasquez also testified. They each denied either taking any of the money or talking with the others about taking any money.

¶ 5. As summarized by the Board in its decision upholding Sliwinski's dismissal from the force, the three detectives (Bonilla, Sliwinski, and Velasquez) then "went into the bathroom area (which was not covered by the cameras) for a few minutes after which they returned to the room." (Parenthetical and underscoring in original.) After the three came back into the cameras' view, again as summarized by the Board, "Sliwinski and Velasquez are then shown on the videotape counting bundles of money and placing them back in the bag." Velasquez testified that they had gone into what he called "the vanity area" in one of the rooms "because it was a little bit better lighted." According to Velasquez, they dumped the money out and counted it so they could tell a supervisor how much was there.

¶ 6. Ultimately, the detectives returned to the Police Administration Building. Bonilla rode with a lieutenant to whom he gave the bag of money. The lieutenant was not aware of the sting operation, and testified at the hearing that "[i]t was routine that when large amounts of cash were seized a supervisor would be called to the scene." Sliwinski, Velasquez, and Jackson went back in a separate car, after first stopping to get some pizzas. Although there were some twelve FBI agents at the hotel in connection with the sting operation, none followed Bonilla and the lieutenant, even though Bonilla was the suspect and the lieutenant had the money. Yet, at least some of the FBI agents followed Sliwinski and the other two detectives.

¶ 7. After several hours, Bonilla, the lieutenant, Velasquez, and Jackson were ordered into a captain's office where they were told that there were, as phrased by the lieutenant in his testimony, "allegations of some wrongdoing." Jackson was escorted back to his desk, where he surrendered his badge, gun, and handcuffs. Sliwinski could see this. According to the evidence as found by the Board, Sliwinski then walked away from his desk toward the locker-room area where $1,000 of the money would later be found in an air vent. No fingerprints were found on the vent.

¶ 8. During his interrogation by the FBI away from the Police Administration Building, Bonilla admitted to taking some of the money and implicated Sliwin-ski and Velasquez. Bonilla's case was plea bargained by the United States Attorney, and Bonilla pled guilty to taking some of the sting money. He testified that he was incarcerated for six months.

¶ 9. As a result of the sting, the then chief of police dismissed Sliwinski from the police department for violating a Department rule requiring all officers to "observe the laws." As noted, the Board upheld the dismissal.

¶ 10. Although Sliwinski does not contend that the evidence before the Board was not sufficient to affirm the Board's decision, he argues that the Board denied him rights of confrontation and of access to witnesses who might possibly support his contention that he never either discussed taking any of the bait money or took it. He claims the deprivation happened when his lawyer was cross-examining Klugiewicz about why the set-up did not include audio, as well as video, surveillance:

Q Okay. Why is there no audio tape to this?
A Privacy concerns and an interpretation of the Title 3 regulations seem to preclude that.
Q Who made that decision?
A Prosecutor.
Q Privacy concerns? Whose privacy concerns?
A Title 3 concerns.
Q Whose privacy concerns?
[Lawyer representing the Department]: Well, I'll object —
[Lawyer representing Sliwinski]:
Q Detective Sliwinski's concerns? Detective Bonilla's?
[The Board's hearing examiner]: I'm going to overrule the objection. I think he can answer. Whose privacy rights are we talking about?
A The people in the room.
[Lawyer representing Sliwinski]:
Q Detective Sliwinski, Detective Bonilla and Detective Velasquez?
[Lawyer representing the Department]: I'll object again to that question. He's not qualified to answer. He's indicated that the prosecutor made the decision, not him.
[The Board's hearing examiner]: If he doesn't know, he can say he doesn't know.
A The question is?
[Lawyer representing Sliwinski]:
Q Whose privacy concerns? These guys?
A That decision was made by the prosecutor.
Q All right. So you don't know, right?
A I don't know.
Q Okay. Mr. Bonilla has alleged that there were certain statements made by Detective Velasquez and Detective Sliwinski which implied that they wanted to take money, right?
A That's correct.
Q Okay. Had we had some audio tape, we would be able to prove or disprove those statements; right?
A If the microphones were placed by where they were talking, that's correct.
Q Were there occupants of this room?
A Yes.
Q Who were they?
A That's beyond my scope to testify today.
Q Do you not know?

At this point, an assistant United States attorney-interjected: "He answered your question, he can't answer that question." When Sliwinski's lawyer, apparently surprised by the interruption, asked, "Who is this?" the assistant United States attorney identified herself by name and declared:

I represent John Klugiewicz for the purposes of this hearing. He is authorized under the CFR to only provide testimony related to the facts and circumstances pertaining to [the Lawyer representing the Department's request for his authorization to testify today. If he says he cannot go beyond the scope of his authorization, he is precluded by federal law from doing so.

Sliwinski's lawyer objected to truncating his ability to cross-examine Klugiewicz: "Well, you know, had I known that he could only answer things that [the lawyer representing the Department] wanted him to answer, then I would have objected to listening to this guy's statement at all."

¶ 11. The Board's hearing examiner replied: "I don't think that that's what we've said. He will respond to his questions. We may receive objections. We'll deal with those objections. But you can continue to ask questions as you deem appropriate and relevant to the investigation that we're here to deal with today." Sliwinski's lawyer's cross-examination of Klugiewicz then continued: Sliwinski testified that, contrary to everyone's assumption about the lack of audio surveillance in the hotel rooms, he was told by the FBI during their interrogation of him that they did have an audiotape of what was said in the hotel rooms:

Q Who were the occupants of the room?
[Lawyer representing the Department]: Objection, relevance.
[The Board's hearing examiner]: I don't know that it's entirely relevant.
[Lawyer representing Sliwinski]: It's relevant because he said he had privacy concerns or the prosecutor had privacy concerns.
Q Who were the —
[The Board's hearing examiner]: The bottom line here is you're saying he could have but he didn't video — or audio tape these individuals, correct?
[Lawyer representing Sliwinski]: That is correct.
[The Board's hearing examiner]: You can ask him about procedures. I don't think it's important whose privacy concerns we're dealing with. I think what they did or didn't do is an important inquiry and you can go into that. But I don't think the identity of the individuals whose privacy concerns may or may not have been addressed is relevant to the issues that we have before us today.
During this interrogation, they had stopped me and they alerted me, they said do you know we have audio tapes of what happened, what we discussed in that room.
Q [By Sliwinski's lawyer]: Audio tapes?
A Audiotapes. So before you go on any further, I want to make you aware that — this is what they told me, that we have audio tapes and we know what was discussed in there. And we also have a videotape of what occurred in that room. Then they continued with the interrogation. And when they asked me about the audio tape, I told the FBI, I said play it, play it right here and I'll tell you what was said in that room and we can clear this up right now. And they refused to. They said that they had to take it down to FBI headquarters to be examined because there is some mumblings [sic] on it or something.

Additionally, Harold T. Hampton, a sergeant with the Milwaukee Police Department, interviewed Sliwinski in this matter on November 8,2000, more than two months after the sting operation, and told him that: "A surveillance was conducted. There were certain observations made and statements heard during that surveillance of your particular actions." Later in the interview, Hampton asked Sliwinski the following questions:

Q Were you made aware that there was a surveillance of the rooms in question ...
A Yes, I was.
Q ... Rooms 206 and 208?
A Yes.
Q O.K. Now are you aware that there was an audio tape and a video tape placed in those rooms?
A The FBI told [unintelligible - could be "us" or "me"]

¶ 12. Our review on certiorari of a decision by the Board is limited to whether the Board "(1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the order or finding that it made based on the evidence." State ex rel. Smits v. City of De Pere, 104 Wis. 2d 26, 31, 310 N.W.2d 607, 609 (1981); see also Gentilli v. Board of Police & Fire Comm'rs of Madison, 2004 WI 60, ¶ 39, 272 Wis. 2d 1, 19, 680 N.W.2d 335, 344 (scope of certiorari-review survives amendments to statutory-review procedure). Where, as here, an officer has also sought review under Wis. Stat. § 62.50(11)-(17), (20)-(22), certiorari review is limited to whether the Board kept within its jurisdiction or applied correct legal theories, because a circuit court's decision on a review sought under those subsections upholding a Board's action "shall be final and conclusive in all cases." Sec. 62.50(22); see Umhoefer v. Police & Fire Comm'n of Mequon, 2002 WI App 217, ¶ 12, 257 Wis. 2d 539, 547, 652 N.W.2d 412, 415-416 (applying Wis. Stat. § 62.13(5)(i), applicable to cities not of the "1st class"). Our review is de novo. Umhoefer, 2002 WI App 217, ¶ 12, 257 Wis. 2d at 547, 652 N.W.2d at 416.

¶ 13. Whether a Board of Fire and Police Commissioners has correctly applied the law in a review of disciplinary action against an officer encompasses "common law concepts of due process and fair play." Id., 2002 WI App 217, ¶ 19, 257 Wis. 2d at 551, 652 N.W.2d at 417. This means that Sliwinski "was entitled to the full panoply of due process protections, the minimum requirements of which include the opportunity to confront and cross-examine adverse witnesses." See ibid. The due-process right to confrontation, which Umhoe-fer recognizes applies to hearings held to determine whether discipline imposed on police or fire officers is justified, see ibid., also means that those subject to discipline by their departments have rights of access to witnesses with potentially exculpatory evidence:

Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. Indeed, the compulsory-process right "is an essential attribute of the adversary system itself." The concomitant issue of access to the identity of witnesses, as to whom the compulsory-process right would apply, is generally analyzed against the framework of "fundamental fairness" guaranteed by due process. It would be a bizarre rule indeed that gave defendants a compulsory-process right to call witnesses but which also withheld from them the ability to discover the identity of those witnesses.

State v. Migliorino, 170 Wis. 2d 576, 585-586, 489 N.W.2d 678, 681-682 (Ct. App. 1992) (criminal case) (quoted source and citations omitted); see also United States v. Cook, 608 F.2d 1175, 1180-1181 (9th Cir. 1979) (access to witnesses), overruled on other grounds by Luce v. United States, 469 U.S. 38, 40 n.3 (1984). In Migliorino, we noted that the United States Supreme Court has recognized that, subject to narrowly drawn and carefully circumscribed exceptions, "the law is entitled to every person's evidence." Id., 170 Wis. 2d at 587, 489 N.W.2d at 682 (referencing United States v. Nixon, 418 U.S. 683, 709-710 (1974)). Thus, Wis. Stat. Rule 905.01 declares:

Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:
(1) Refuse to be a witness; or
(2) Refuse to disclose any matter; or
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

" [Exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Nixon, 418 U.S. at 710. In Migliorino, we held that a person accused of trespass to a medical facility was entitled to know those who were in the area into which she allegedly trespassed, despite claims by the State that identification of the patients in the facility "who were witnesses to the- incident underlying [the defendant's] conviction would violate their 'medical and privacy rights' and should be prevented." Id., 170 Wis. 2d at 588, 489 N.W.2d at 682.

¶ 14. As we have seen, although both Klugiewicz and the assistant United States attorney representing him at Sliwinski's hearing before the Board referenced "Title 3 concerns" and the "CFR," we have not been provided with anything that indicates that anything in those amorphous references falls within the narrowly drawn and carefully circumscribed exceptions to the fundamental principle of our jurisprudence that the law is entitled to every person's evidence. Indeed, the Board's hearing examiner seemed to recognize this because he ultimately sustained on relevancy grounds the objection of the Department's lawyer to the disclosure of who might have been present when the Department contends Sliwinski conspired with Bonilla and Velasquez to take some of the bait money. As we have seen, the hearing examiner ruled: "I don't think the identity of the individuals whose privacy concerns may or may not have been addressed is relevant to the issues that we have before us today." We disagree.

¶ 15. Admission of evidence is vested in the presiding officer's reasoned discretion, and a decision to admit or exclude evidence will not be reversed if, among other things, the officer "applied a proper standard of law." See State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30, 36 (1998). The "identity" of those who might have been present at the sting scene and therefore able to affirm or negate the Department's circumstantial evidence supporting Bonilla's testimony that Sliwinski conspired with Bonilla and Velasquez to take some of the bait money is not only highly "relevant" because it goes to the heart of the underpinnings of the Department's dismissal of Sliwinski from his job, see Wis. Stat. Rule 904.01 (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."), but, as we have seen, it is also within the core of Sliwinski's right to due-process fundamental fairness. Thus, the hearing examiner did not apply the correct legal standard when he ruled that the evidence was not relevant.

¶ 16. Sliwinski is entitled to a fair hearing, and that means access to witnesses and evidence that could support his defense. As Umhoefer recognizes, a remand to the Board for a hearing consistent with an officer's due-process rights is an appropriate remedy. Id., 2002 WI App 217, ¶¶ 21-22, 257 Wis. 2d at 552, 652 N.W.2d at 418. Although Sliwinski seeks to have us order his reinstatement, we are not a fact-finding court, Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155, 159 n.3 (1980), and he points to nothing that permits our usurpation of what is properly and appropriately a function of the Board. We thus remand to the Board of Fire and Police Commissioners for a new hearing that complies with Sliwinski's due-process rights.

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

       There is nothing in the Record to indicate that the person who let Bonilla and Velasquez into the rooms was not employed by the hotel. It seems odd, however, that the FBI would either subject the success of its operation to a housekeeper's willingness to let the detectives into the room, or that it would share with the hotel information about the operation or the cover-story of an impending drug deal. Indeed, the formal complaint filed against Sliwinski by the then chief of police alleges that Bonilla and Velasquez were unable to persuade the "front desk clerk" to let them into the rooms because "they did not have a warrant." Thus, there is no support for the Department's representations to us in its appellate brief that a Milwaukee police captain gave Bonilla an assignment to go to the hotel "and execute a search warrant for drugs and drug money," or that the detectives were on a "search warrant execution." The FBI's typed report of what Bonilla told them indicates that Bonilla and Velasquez "decided to go up and do a knock and talk to see if anyone was at the hotel suite and whether they would talk with them" and that when "the cleaning lady opened the door and said no one was in there," Bonilla and Velasquez "entered and did a cursory search" at first and a more thorough search after they were told by Bonilla's captain that the "suspects" had fled, "leaving one pound of weed and $18,000." This tracks the chief of police's complaint against Sliwinski, which alleged that Bonilla and Velasquez "were able to convince a housekeeper to let them into the two rooms."

       The Record does not explain the following anomaly. The videotape in the Record identified as from the surveillance of Room 206 by Camera 1 shows one of the FBI agents placing the paper bag of money in a well underneath the lower-most drawer of the dresser on which is perched a television set. It appears from the tape that the well is recessed below a raised "fence" area on which the drawer fits and slides. After the agent placed the money in this well, he slid the drawer back in. It does not appear that there was any resistance, which there might have been if the bag of money were being forced out of the well onto the floor between the dresser and the wall against which the dresser was placed. The videotape in the Record identified as from the surveillance of Room 206 by Camera 2, however, shows Bonilla retrieving the bag of money from behind the dresser, not, apparently, the well into which the agent put the bag. Sliwinski's brief-in-chief on this appeal asserts in its statement of facts that "Bonilla found a brown paper bag containing money behind a television stand." Additionally, the videotape in the Record identified as from the surveillance of Room 208 shows Bonilla walking into that room with a paper bag in his hand several seconds before he is shown finding it in Room 206 (we acknowledge that this might he attributable to a clock-error on one or both of the video cameras).

       Although Klugiewicz referred to "Title 3 regulations," and the assistant United States attorney referred to "the CFR" (presumably meaning something from the shelves of volumes making up the Code of Federal Regulations), neither party has cited or given to us the text of the provisions to which either Klugiewicz or the assistant United States attorney were referring.

       There are four additional things that the Board should consider on remand. First, as we saw in footnote 1, it is odd that the FBI would have pinned the success of the sting on a housekeeper's willingness to let the detectives into the rooms without a warrant or a direction from hotel management. Moreover, a video of the surveillance of Rooms 208 and 206 after the detectives had left shows the "housekeeper," among other things, checking behind the television set in each room and the dressers on which they sat. Second, as we point out in footnote 2, Bonilla appears from the tapes to find the paper bag with the money in a place different from where it was placed by the FBI agent. Third, as we also point out in footnote 2, the videotapes in the Record identified show Bonilla walking into Room 208 with a paper bag in his hand several seconds before he is shown finding it in Room 206, although, as we observe in footnote 2, that anomaly might be out-of-synchronization video-camera clocks. Fourth, as noted above, Sliwinski testified that FBI agents told him that there was audio surveillance of the rooms. Although law-enforcement officers may, depending on the circumstances, lawfully mislead suspects whom they are interrogating in order to encourage a confession, State v. Triggs, 2003 WI App 91, ¶¶ 1, 14-17, 264 Wis. 2d 861, 864, 870-873, 663 N.W.2d 396, 397, 400-402, what Sliwinski says the agents told him, and what Sergeant Hampton also told him, coupled with the Department's strident resistance to disclosing evidence that might reveal the full nature of the sting set-up, is another area of appropriate inquiry on remand.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    Mary Herr, individually and as the Special Administrator for the Estate of Joseph George, Deceased, Plaintiffs-Appellants, v. Rodolph J. Lanaghan, Defendant, Bradley D. DeBraska, Defendant-Respondent, Jeffrey R. Groth, Kevin Ziolkowski, Kevin Dane, Fausto Delgado, Nicole J. Anderson a/k/a Nikki Anderson, Linda L. Anderson d/b/a The Roadhouse Restaurant and Lounge, and Society Insurance, a mutual company, Defendants.
    Court of Appeals

      No. 2005AP422.

      Submitted on Briefs December 6, 2005.

      Decided January 24, 2006.

    2006 WI App 29
    (Also reported in 710 N.W.2d 496.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mark E. Larson and Bradley S. Foley of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John F. Fuchs of Fuchs, DeStafanis & Boyle, S.C. of Milwaukee.
    Before Fine, Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. Mary Herr, individually and as Special Administrator for the Estate of Joseph George (collectively, "Herr"), appeals from an order granting defendant Bradley DeBraska's motion to offset the restitution ordered in DeBraska's related criminal case against the civil judgment paid in this case. Herr argues that the trial court erroneously: (1) reopened the civil judgment against DeBraska; and (2) offset the restitution order against the civil judgment. We affirm the reopening of the civil judgment, but reverse and remand for an evidentiary hearing on whether the offset should be permitted.

BACKGROUND

¶ 2. Herr's son, Joseph George, was killed by a man named Rodolph Lanaghan outside a tavern, on February 25, 2000. DeBraska and several other men were charged as parties to a crime based on their involvement in the killing. Specifically, DeBraska pled guilty and was convicted of second-degree reckless homicide while armed with a dangerous weapon, party to a crime. He was sentenced on August 29, 2000, to forty-two months of initial confinement and seventy-eight months of extended supervision, and was ordered to pay restitution. The trial court stated:

There will be joint and several restitution. I'm not sure of the exact amount. That will be determined by the Department of Corrections. Some of that may be changing anyway.
There's no number in the DeBraska presentence. There is a number in [a co-defendant's] presentence, and at that point it was a little over $14,000.
Now [the State] mentioned this morning it was over 15,000. I think the accurate amount ought to be indicated so that we have what that all amounts to.

Although the trial court identified the need to set a final amount of restitution, no order was entered until September 2004, as discussed below.

¶ 3. On February 21, 2002, Herr filed this civil action against the numerous criminal defendants. She later added as defendants the tavern and its insurer.

¶ 4. In August 2003, Herr and DeBraska reached an agreement settling Herr's claims against DeBraska. Although the terms of this agreement were originally confidential, the settlement agreement was ultimately revealed in the course of subsequent proceedings. The agreement provided, in relevant part:

FOR AND IN CONSIDERATION of the payment of Twenty Thousand Dollars ($20,000), Mary Herr... does hereby fully and forever release and discharge BRADLEY DEBRASKA JR.... of and from all claims, demands, actions or liability, which she may now have or may hereafter have arising out of the incident on February 24 and 25, 2000 ....
This release specifically includes all claims and causes of action by the undersigned against the released person which are now or could have been presented in the [civil] action currently pending....
It is understood and agreed that this settlement is the compromise of a disputed claim and the payment is not to be construed as an admission of liability by the released person, whom herein expressly denies any and all liability. This release is intended to effect a full and final settlement of all claims between and among the parties to this release.
The undersigned Mary Herr ... in further consideration, convenants not to sue the released person .... [She] also agrees to defend, indemnify and save the released person harmless from any and all further liability, loss, damage and expense ....
[She] hereby declares and represents that any damages and injuries sustained are not calculated at this time and that recovery therefore is uncertain and indefinite ....

Consistent with the settlement agreement, the trial court on September 22, 2003, signed an order dismissing the claim against DeBraska.

¶ 5. DeBraska was released from prison and placed on extended supervision in early 2004. DeBraska secured employment and his wages began to be garnished in connection with the restitution order, even though no final amount of restitution had been set. It appears that DeBraska objected to the garnishment, while Herr asked the trial court in the criminal case to set restitution. According to an affidavit provided by counsel for De-Braska, there was a conference call involving the district attorney's office, counsel for Herr, counsel for DeBraska and the trial court from the criminal case. DeBraska's counsel later asserted in an affidavit that during the call, it was made clear that DeBraska would pursue offset in the civil court, and would therefore agree to stipulate to set restitution in the criminal case at $17,209.88.

¶ 6. On October 5, 2004, DeBraska filed a motion, brief and supporting affidavit seeking to offset the civil judgment in this case against the restitution ordered in the criminal case. On appeal, DeBraska asserts that this motion was fully anticipated by the parties, based on their "understanding among the parties that the issue of offset would be considered in the civil court." However, Herr contends that she did not agree to permit DeBraska to reopen the civil judgment to consider the offset issue. She explains that is why she objected to DeBraska's motion for offset. A hearing was held on November 8, 2004.

¶ 7. At the hearing, the parties provided the trial court with a history of the case. Herr objected to considering the motion for offset on its merits, asserting that there had been no motion to reopen the September 2003 order dismissing DeBraska from the case. The trial court rejected this argument and allowed DeBraska to move orally for relief from judgment under Wis. Stat. § 806.07(l)(h) (2003-04). The trial court concluded that it was appropriate to reopen the case in the interest of justice.

¶ 8. Next, the trial court considered the merits of DeBraska's motion to offset the civil judgment against the restitution ordered in DeBraska's related criminal case. Based on the affidavits previously submitted, as well as arguments from counsel, the trial court granted the motion. The final written order also denied De-Braska the right to seek indemnification from Herr for any restitution that he had already paid through wage garnishment. This appeal followed.

DISCUSSION

¶ 9. The procedural history of this case presents unique challenges. DeBraska was sentenced and ordered to pay restitution in the criminal case, but a specific amount of restitution was not initially set. He began serving time in prison. DeBraska settled the civil case against him for $20,000 and paid the judgment in full. He was then released from prison. DeBraska secured employment and the State began garnishing a portion of his wages to be applied toward the restitution ordered in the criminal case. The parties appeared in the criminal court to determine whether a specific amount of restitution should be set, and whether DeBraska's wages should be garnished. The parties stipulated to an amount of restitution. The parties then went to civil court, asking the civil court to decide whether offset was appropriate.

¶ 10. These facts do not fit neatly into the procedure provided for seeking an offset of a civil judgment. The statutory authority for offset is found in the criminal statutes, which also outline the damages that can be the subject of a restitution order. A review of these statutes and applicable case law provides a helpful background for resolution of this case.

¶ 11. "[R]estitution serves the purposes of punishment and rehabilitation of the defendant, while seeking to make the victim of criminal acts whole in regard to the special damages sustained." State v. Walters, 224 Wis. 2d 897, 904, 591 N.W.2d 874 (Ct. App. 1999). While a victim may ask the trial court to order a specific amount of restitution, "[t]he victim has no control over the amount of restitution [ordered] or over the decision to order probation and restitution." State v. Foley, 142 Wis. 2d 331, 341, 417 N.W.2d 920 (Ct. App. 1987).

¶ 12. Restitution in a criminal case is governed by Wis. Stat. § 973.20. Pursuant to § 973.20(5), the restitution order

may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.
(b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime.
(c) Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the defendant for a crime for which the defendant was convicted or to the apprehension or prosecution of the defendant for a read-in crime.
(d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.

¶ 13. Wisconsin Stat. § 973.20(8) permits a criminal defendant to reduce civil damages awarded to the crime victim by amounts paid pursuant to a restitution order. Olson v. Kaprelian, 202 Wis. 2d 377, 383, 550 N.W.2d 712 (Ct. App. 1996). That statute provides:

Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The facts that restitution was required or paid are not admissible as evidence in a civil action and have no legal effect on the merits of a civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.

Wis. Stat. § 973.20(8). In Olson, we discussed how this statute might be applied as parties contemplated settlement in a civil case:

We read this statute to likewise enable a defendant to try to reduce the amount he or she owes because of a restitution award during settlement negotiations on the companion civil case. For such an agreement to be valid, however, the defendant must establish the "validity and amount" of this "setoff in a hearing before the trial court conducting the civil action. The statute places the burden on the defendant to establish that the outstanding restitution order has been included in the calculation of any civil settlement.

202 Wis. 2d at 383 (footnote and citation omitted).

¶ 14. What Wis. Stat. § 973.20(8) and Olson did not address is the proper procedure to determine offset in a case such as this, where the civil judgment has been entered and paid in full, and recently determined restitution has just begun to be paid. We did, however, address a similar question in Walters, involving an order for restitution that was issued after the defendant paid the victim $25,000 pursuant to a civil judgment that released him from "all claims and damages." 224 Wis. 2d at 900. The trial court concluded that the victim had proven $40,835.17 in special damages. Id. at 908. However, the trial court refused to offset the victim's special damages against the $25,000 the defendant paid in general damages, observing that this would be "mixing apples and oranges." Id.

¶ 15. We affirmed, holding that "the amount of restitution paid to a victim in a criminal proceeding may be a setoff against a like amount in the judgment in a companion civil case." Id. at 906 (emphasis added). We observed that criminal restitution can include only special damages, such as medical expenses and lost earnings. Id. at 905-06. However, a civil judgment can include general damages that compensate a victim for things such as pain and suffering, anguish or humiliation. See id. We affirmed the trial court's decision to deny setoff, stating:

[The defendant] had the burden of proving what portion of the $25,000 payment was made for special damages, because in this case the record before the court showed that [the victim] had suffered both general and special damages. However, [the defendant] provided no such proof; therefore, the circuit court had no choice but to conclude that none of the payment should be applied against special damages.

Id. at 908-09.

¶ 16. With this background in mind, we conclude that two issues among the myriad arguments raised by the parties are dispositive. First, we conclude that the trial court properly exercised its discretion when it reopened the civil judgment pursuant to Wis. Stat. § 806.07(l)(h). Next, we conclude that a full hearing is required to determine whether "the outstanding restitution order has been included in the calculation" of the civil settlement. See Olson, 202 Wis. 2d at 383. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

I. Reopening of the case

¶ 17. Herr contends that the trial court erroneously exercised its discretion when it reopened the civil judgment pursuant to Wis. Stat. § 806.07(l)(h). That statute provides:

(1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(h) Any other reasons justifying relief from the operation of the judgment.

¶ 18. The trial court found that the case should be reopened in the interest of justice, and that the time within which the motion was brought was not unreasonable. We conclude that the trial court did not erroneously exercise its discretion. Criminal defendants are allowed to seek to offset civil judgments against the restitution ordered in a related criminal case. See Wis. Stat. § 973.20(8). Here, the restitution amount was not set until approximately one year after the civil judgment was entered. It was certainly appropriate to reopen the civil judgment to allow consideration of this issue, especially where there is evidence that DeBraska and his counsel believed they would be going to the civil court when they stipulated to the amount of restitution.

II. Offset of the restitution order

¶ 19. Next, we consider whether the trial court's order offsetting the entire civil judgment was proper. In order to decide whether to offset the judgment, the trial court had to determine what damages were covered by the restitution order (which was based on a stipulation and could, by law, only include special damages) and what damages were covered by the settlement agreement. See Walters, 224 Wis. 2d at 906-09. To do this, a hearing was required. See Wis. Stat. § 973.20(8) ("The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.").

¶ 20. Although there was a motion hearing, there was no testimony taken. The trial court considered only affidavits from counsel, arguments from counsel, and written documents including the stipulations and agreements. The civil settlement agreement did not mention the criminal restitution order, referring only to "all claims between and among the parties to the release," and did not identify the specific damages included in the $20,000 settlement. Likewise, the stipulation to criminal restitution did not indicate the damage elements that made up the $17,209.88 order. We conclude that the motion hearing did not provide sufficient evidence for the trial court to determine whether the damages covered by the civil judgment were, in whole or in part, the same special damages covered by the criminal restitution order. The record is not sufficiently developed for the trial court to have made the determinations necessary to decide whether to grant the motion to offset, or for us to review the findings and conclusions. Therefore, we remand for a hearing and determination on those issues.

By the Court. — Order affirmed in part, reversed in part and cause remanded for further proceedings.

       One basis for DeBraska's objection was that the restitution award was not set within time limits established by statute. It appears that the parties ultimately concluded that under case law, exceptions to the statutory guidelines could be made, and that DeBraska thereafter agreed to stipulate to a specific amount of restitution. The propriety of setting restitution in the criminal case four years after sentencing is not an issue before this court and will not be addressed.

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

       Herr asserts in her brief that the amounts that formed the basis for the restitution order were discussed at an August 5, 2004, hearing before the criminal court, but that transcript is not part of the record.

       If the trial court cannot determine the nature of the damages covered by the stipulations and orders by examining those documents, it may be necessary to look beyond those documents to determine what specific damages each was intended to cover.


author: VERGERONT, J.

text:
    City of Janesville, Plaintiff-Respondent, v. CC Midwest, Inc. a foreign corporation, Defendant-Appellant.
    Court of Appeals

      No. 2004AP267.

      Oral argument November 22, 2005.

      Decided January 26, 2006.

    2006 WI App 21
    (Also reported in 710 N.W.2d 713.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Alan Marcuvitz, Andrea H. Roschke, and Susan M. Sager, orally argued by Alan Marcuvitz and Andrea H. Roschke, Michael Best & Friedrich LLP, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was orally argued by and submitted on the briefs of Mark J. Steichen, Boardman, Suhr, Curry & Field LLP, Madison.
    Before Lundsten, RJ., Vergeront and Higginbotham, JJ.

       Petition to review granted 4-10-06.

   VERGERONT, J.

¶ 1. The City of Janesville initiated this action for a writ of assistance to remove CC Midwest, Inc., from property the City had acquired by exercising its power of eminent domain. The City also sought a declaration that it had satisfied all its obligations under Wis. Stat. ch. 32 and was therefore entitled to possession. The issue on appeal is whether the circuit court correctly concluded that the City had met its obligation under Wis. Stat. § 32.05(8)(b) and (c) to make available to CC Midwest a comparable replacement property before requiring CC Midwest to vacate. We conclude that, because none of the properties identified by the City met the definition of "comparable replacement business" in Wis. Stat. § 32.19(2)(c), the City was not entitled to the writ. Accordingly, we reverse the circuit court's judgment granting the writ and direct it to enter judgment denying the writ.

BACKGROUND

¶ 2. The property at issue consists of approximately nine acres located in the City of Janesville. CC Midwest rented the property and operated a trucking terminal there. CC Midwest was a division of a company that was owned by Cen Tra, Inc., and a corporation related to Cen Tra owned the property. CC Midwest is a "less than truckload" operation, meaning that its customers send and receive freight in quantities less than a semi-trailer can carry. Each truck makes as many pickups as it can in the terminal's service area, then returns to the terminal where the freight is unloaded and reloaded into other trucks that deliver to remote terminals in the network, which covers thirty-eight states. The service area of the CC Midwest terminal on the property acquired by the City was South Central Wisconsin. The building on the property included twenty docks arranged in a "cross-docking" configuration, which allowed the trucks that were being unloaded to be directly across the terminal floor from the doors of the trucks that receive the freight.

¶ 3. On February 7, 2003, the City acquired the property occupied by CC Midwest as part of a transportation project that involved reconstructing a street and constructing a railroad bridge, underpass, and drive. CC Midwest had been notified of the City's plans in November 2001. In October 2002, the City sent CC Midwest a letter advising that it would need to relocate, would receive a ninety-day advance notice of when it had to move, and would be eligible for specified relocation assistance. The letter also listed several " 'comparable replacement businesses' that [CC Midwest might] wish to consider." On February 6, 2003, the City notified CC Midwest that it would have until May 8, 2003, to vacate the property; there would be no rent due for the thirty-day period commencing February 15, 2003, and the City specified the rent for any other period of occupancy. Later in February the City notified CC Midwest of eight "more possible sites ... for the relocation of CC Midwest."

¶ 4. In March 2003, CC Midwest informed the City by letter that none of the suggested sites were comparable: some were only vacant land; the land and/or the building on some were too small; some of the buildings were warehouses not conducive to cross-docking operations; four sites were too far from Janes-ville (one over fifty miles, two approximately 100 miles, and one over 125 miles); and one was not for sale. The City's position was that at least three of those sites were "comparable replacement properties." By letter dated April 14, 2003, the City advised CC Midwest that it had to physically vacate the property by May 16, 2003. CC Midwest did not vacate the property by May 16. The parties subsequently entered into an occupancy agreement defining the terms under which CC Midwest could occupy the property while the City sought a writ of assistance requiring CC Midwest to vacate the property.

¶ 5. The City initiated this action seeking a declaration that it had complied with its obligations under Wis. Stat. ch. 32 and was entitled to a writ of assistance directing the sheriff to remove CC Midwest from the property. CC Midwest opposed the writ on the ground that the City had not made available a comparable replacement property as required by Wis. Stat. § 32.05(8)(b) and (c) before a condemnor may make an occupant vacate the property. The court treated the City's motion for the issuance of a writ as a motion for summary judgment, and the parties filed briefs and affidavits on the issue whether the City had met its statutory obligation to make available a comparable replacement property. The circuit court concluded that there were no issues of material fact and that the City had met its obligation to make available a comparable replacement property. The court therefore issued a judgment for a writ of assistance.

ANALYSIS

¶ 6. On appeal CC Midwest contends, as it did in the circuit court, that the City was not entitled to a writ of assistance because it did not make available a "comparable replacement property" as required by Wis. Stat. § 32.05(8)(b) and (c). CC Midwest asserts that none of the properties the City identified met the definition of "comparable replacement business" in Wis. Stat. § 32.19(2)(c).

¶ 7. The City at oral argument conceded that there is no dispute that the properties it identified did not meet the statutory definition for a comparable replacement business in Wis. Stat. § 32.19(2) (c) at the time it was requiring CC Midwest to vacate the property. However, its position is that the relevant statutory provisions, when read together in light of City of Racine v. Bassinger, 163 Wis. 2d 1029, 473 N.W.2d 526 (Ct. App. 1991), and Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of the City of Madison, 2002 WI App 200, 257 Wis. 2d 377, 651 N.W.2d 1, require only that it identify property that could be made comparable as defined in § 32.19(2)(c) and offer the payment identified in § 32.19(3) and (4m).

¶ 8. When we review a summary judgment, we employ the same methodology as the circuit court and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 317, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Given the competing theories of statutory construction advanced by the parties, we conclude that the material facts are undisputed. The proper construction of a statute when applied to undisputed facts presents a question of law, which this court reviews de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

¶ 9. When we construe a statute, we start with the language of the statute and give it the common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is unambiguous —that is, there is only one reasonable meaning — then we apply this plain meaning. Id., ¶ 46 (citation omitted). We also consider prior cases construing the statute, because judicial construction becomes part of the statute unless subsequently amended by the legislature. Wenke v. Gehl Co., 2004 WI 103, ¶ 31 n.17, 274 Wis. 2d 220, 682 N.W.2d 405.

¶ 10. We begin with an analysis of the statutory language at issue and then discuss the cases on which the City relies.

¶ 11. Wisconsin Stat. § 32.05 provides the procedure for certain municipalities to follow when condemning land for certain public projects, and the parties agree that this is the applicable section. After describing the procedure for acquiring title and determining the amount of compensation to the property owner, this section addresses the occupants of the property and provides in part:

Condemnation for sewers and transportation facilities. (8) OCCUPANCY; WRIT OF ASSISTANCE; WASTE.
(b) No person occupying real property may be required to move from a dwelling or move his or her business or farm without at least 90 days' written notice of the intended vacation date from the condemnor. The displaced person shall have rent-free occupancy of the acquired property for a period of 30 days, commencing with the next 1st or 15th day of the month after title vests in the condemnor, whichever is sooner. Any person occupying the property after the date that title vests in the condemnor is liable to the condemnor for all waste committed or allowed by the occupant on the lands condemned during the occupancy. The condem-nor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except as provided under par. (c). If the condemnor is denied the right of possession, the condemnor may, upon 48 hours' notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under par. (c).
(c) The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This paragraph does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197 or who is not a displaced person, as defined under s. 32.19 (2) (e), unless the acquired property is part of a program or project receiving federal financial assistance.

(Emphasis added.)

¶ 12. Wisconsin Stat. § 32.19, entitled "Additional items payable," provides for payments to persons displaced by public projects and includes payments to both owners and tenants and to businesses, farm operations, and individuals in dwellings, all as defined in this section. The declaration of purpose in § 32.19(1) provides as follows:

(1) DECLARATION OF PURPOSE. The legislature declares that it is in the public interest that persons displaced by any public project be fairly compensated by payment for the property acquired and other losses hereinafter described and suffered as the result of programs designed for the benefit of the public as a whole; and the legislature further finds and declares that, notwithstanding subch. II, or any other provision of law, payment of such relocation assistance and assistance in the acquisition of replacement housing are proper costs of the construction of public improvements ....

¶ 13. A "comparable replacement business" is defined in Wis. Stat. § 32.19(2) (c) as:

[A] replacement business which, when compared with the business premises being acquired by the condem-nor, is adequate for the needs of the business, is reasonably similar in all major characteristics, is functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service, is available on the market, meets all applicable federal, state or local codes required of the particular business being conducted, is within reasonable proximity of the business acquired and is suited for the same type of business conducted by the acquired business at the time of acquisition.

¶ 14. Wisconsin Stat. § 32.19(3)(a) provides for payment of certain actual moving expenses as well as actual reasonable expenses necessary to reestablish a business not to exceed $10,000, with an exception; under para, (b) a displaced business may elect instead to receive a fixed payment established by regulation, which is capped at $20,000. Paragraph (c) provides for an additional payment for persons who moved their businesses, elected payments under para, (a), and within two years of the receipt of that payment discontinued their business, up to a combined maximum of $20,000.

¶ 15. Wisconsin Stat. § 32.19(4m)(b) addresses payments to business owners who rent and are displaced if such an owner either rents or purchases a comparable replacement business within two years after vacating the acquired property. The condemnor must pay the owner of the displaced business based on a formula that compares the monthly rent paid for the acquired property to the monthly rent of a comparable replacement business in an amount not to exceed $30,000.

¶ 16. Focusing first on the language of Wis. Stat. § 32.05(8)(c), that section plainly prohibits a condemnor from requiring the occupant of the premises to vacate "until a comparable replacement property is made available," with certain exceptions not applicable here. Subsection (8)(b) repeats that same obligation in the context of the issuance of a writ of assistance: having "made a comparable replacement property available to the occupants ..." (with the exceptions provided for in para, (c)) is one of the conditions for the issuance of the writ. While there is no definition of "comparable replacement property" in § 32.05, Wis. Stat. § 32.19(2)(b), (c), and (d) define "comparable dwelling," "comparable replacement business," and "comparable replacement farm operation," each of these definitions corresponding to the categories of displaced persons defined in paras, (e) and (h) of § 32.19(2). Neither party here has suggested that "comparable replacement property" in § 32.05(8)(b) and (c) has any meaning other than that defined in § 32.19(2)(b)-(d). We conclude that "comparable replacement property" in § 32.05(8)(b) and (c) plainly refers to those three categories of replacement properties as defined in § 32.19(2)(b)-(d). The applicable definition in this case is that of a "comparable replacement business" in § 32.19(2)(c), as the City has implicitly conceded in its arguments.

¶ 17. We conclude there is nothing in the language of Wis. Stat. § 32.19(3) or (4m), or any other subsection of Wis. Stat. §§ 32.05 or 32.19, that supports the City's position that it need not make available a comparable replacement property meeting the definitions of § 32.19(2) (b)- (d), but instead need only identify property that could be made comparable and offer the payments required by § 32.19(3) and (4m).

¶ 18. The moving expenses described in Wis. Stat. § 32.19(3)(a) plainly are expenses that would be incurred in relocating to a comparable replacement property and cannot reasonably be read as limiting the condemnor's obligation to make a comparable replacement property available. The payments under subsec. (4m) (b) are explicitly based on a comparison of rent for the acquired property to rent for a comparable replacement business and thus cannot reasonably be read as a limitation on the obligation to make available a comparable replacement property. The evident purpose of subsec. (4m) (b) is to provide some compensation to a displaced business owner where the rent for a comparable replacement business is higher than that previously paid; no language in the statute suggests that this compensation affects the condemnor's obligation to make available a comparable replacement business property.

¶ 19. Similarly, the City's argument that the payment in Wis. Stat. § 32.19(3) (c) is intended to fulfill the condemnor's obligation when there is no comparable replacement property has no basis in the statutory language. The comparable replacement property must be made available before the occupant can be required to vacate the acquired property, Wis. Stat. § 32.05(8)(c), whereas the payment under § 32.19(3) (c) is available only after the occupant has vacated. The payment in this paragraph is available when a business owner moves the business, obtains payment for moving expenses, and then within two years of that payment decides to discontinue the business at the new location.

¶ 20. Having found no statutory language that supports the City's position, we turn to the cases on which it relies: Bassinger, 163 Wis. 2d 1029, and Dotty Dumpling's, 257 Wis. 2d 377.

¶ 21. In Bassinger, we summarized Wis. Stat. § 32.05(8) as establishing three conditions precedent to the issuance of a writ of assistance: (1) compliance with all jurisdictional requirements; (2) payment or tender of the award; and (3) making available comparable replacement property to the occupants. 163 Wis. 2d at 1035. As it concerns the third condition, the issue in Bassinger was whether the owner of a marina business that rented slips to boat owners but conducted no commercial activities on the property in connection with the marina operation was an "occupant" within the meaning of § 32.05(8) such that the condemnor had to make available a comparable replacement property in order to obtain a writ of assistance. Bassinger, 163 Wis. 2d at 1038-39, 1042. We concluded a person is an "occupant" under § 32.05(8) only if the person is a displaced person under Wis. Stat. § 32.19; and we held the marina owners did not meet the definition of displaced persons in Wis. Admin. Code § ILHR 202.01(14)(b)10 (now Wis. Admin. Code § COMM 202.01(14)(b)10). Bassinger, 163 Wis. 2d at 1042-43.

¶ 22. In this case, there is no dispute that CC Midwest is a displaced person under Wis. Stat. § 32.19 and an occupant under Wis. Stat. § 32.05(8). Bassinger does not address a condemnor's obligation under § 32.05(8) to make available to an occupant a comparable replacement property before requiring the occupant to move.

¶ 23. In Dotty Dumpling's, on which the City primarily relies, the owner of both the acquired property and a restaurant business on the property argued that a comparable replacement property had not been "made available" within the meaning of Wis. Stat. § 32.05(8)(b) and (c) because it would cost one million dollars more than the condemnation award and the relocation payments to purchase and remodel the only property identified that met the owner's criteria. Dotty Dumpling's, 257 Wis. 2d 377, ¶¶ 4, 10. The owner's position, as we phrased it, was that "a court may not grant a condemnor possession of condemned premises until a replacement property deemed acceptable by the condemnee is procured, regardless of its acquisition costs, all of which the condemnor must bear or tender." Id., ¶ 26. We rejected this position as unreasonable because it placed an open-ended obligation on the condemnor to provide relocation payments in order to make the owner whole and made the specific payment provisions in Wis. Stat. § 32.19 meaningless. Dotty Dumpling's, 257 Wis. 2d 377, ¶¶ 26-27.

¶ 24. The City here contends that CC Midwest's argument is the same one we rejected in Dotty Dumpling's, and that under Dotty Dumpling's the City met its obligation to make a replacement property available under Wis. Stat. § 32.05(8) once it identified a "potential" replacement property and offered the payments to which CC Midwest is entitled under Wis. Stat. § 32.19. The City places’ particular emphasis on our statement in Dotty Dumpling's that

by identifying potential replacement properties, obtaining renovation cost estimates for a property in which Dotty expressed some interest, tendering the maximum business replacement payment, and offering to reimburse Dotty for its other statutorily authorized relocation expenses, [the condemnor] "made available" to Dotty a comparable replacement property "to the extent required by the relocation assistance law."

Id., ¶ 21 (citing Bassinger, 163 Wis. 2d at 1040).

¶ 25. However, the City overlooks the difference in the issue decided in Dotty Dumpling's and that raised in this case. In Dotty Dumpling's the owner did not argue that the property identified by the condemnor was not a "comparable replacement business" within the meaning of Wis. Stat. § 32.19(2)(c); rather the issue was whether "made available" in Wis. Stat. § 32.05(8)(b) and (c) meant that the condemnor had to pay the owner sums greater than those specified in § 32.19. Thus the quoted statement from Dotty Dumpling's is not properly read as holding that the identified property there met the definition of a "comparable replacement business" under § 32.19(2)(c). Rather, the statement expresses our resolution of the issue we did decide: the owner was not entitled under § 32.05(8) to a replacement property that met the owner's criteria and for which the condemnor paid whatever it cost to purchase and remodel over and above the jurisdictional offer and the payments to which the owner was entitled under § 32.19.

¶ 26. Unlike the owner in Dotty Dumpling's, CC Midwest is not arguing that "ma[k]e available" in Wis. Stat. § 32.05(8) means "pay for," which was the essence of the owner's argument in Dotty Dumpling's. Rather, CC Midwest's position is that "ma[king] available" a comparable replacement property under § 32.05(8)(b) and (c) means identifying a property that meets the applicable definition in Wis. Stat. § 32.19(2)(b)-(d).

¶ 27. The difference between the issue decided in Dotty Dumpling's and that raised by CC Midwest is significant because our statutory analysis in Dotty Dumpling's rested on the premise that it was unreasonable to suppose the legislature intended to impose an open-ended financial obligation on the condemnor when the legislature had very specifically set forth the payments the condemnor was obligated to make in Wis. Stat. § 32.19. In contrast, CC Midwest is not suggesting that the condemnor has any financial obligation greater than that specified in § 32.19: its position is that, when the legislature provides that the condemnor make available a comparable replacement property and defines comparable replacement properties in § 32.19(2)(b)-(d), the legislature intends that the condemnor must identify a property meeting the applicable definition before it can require the occupant to vacate. Rather than rendering meaningless the payment provisions of § 32.19 as the owner's position did in Dotty Dumpling's, CC Midwest construes Wis. Stat. § 32.05(8) in light of § 32.19, which, as we have said in Bassinger and Dotty Dumpling's, is the proper course. The City's position, on the other hand, renders the requirement of a comparable replacement property in § 32.05(8)(b) and (c) and the definitions in § 32.19(2)(b)-(d) meaningless: under the City's view it may require an occupant to vacate even if it does not identify a comparable replacement property meeting the applicable statutory definition.

¶ 28. We are persuaded that the issue presented on this appeal is not resolved by Bassinger or Dotty Dumpling's. A requirement that a condemnor identify a comparable replacement property meeting the applicable definition in Wis. Stat. § 32.19(2)(b)-(d) before making an occupant vacate does not impose an "open-ended" financial obligation on the condemnor and does not render the provisions for payments in § 32.19 meaningless. It is not inconsistent for the legislature to provide that an occupant may not be required to vacate unless the condemnor has identified a comparable replacement property meeting the statutory definition, even though the condemnor's financial obligations to assist the occupant are limited by the provisions for payments in § 32.19.

¶ 29. The City argues that, even if Bassinger and Dotty Dumpling's do not resolve the issue in this case, we should reject CC Midwest's proposed construction of Wis. Stat. §§ 32.05(8) and 32.19 because it is unreasonable. The City does not identify any ambiguity in the statutory language. Rather, the City asserts that the legislature could not have intended that a condemnor must identify a property meeting the definition of § 32.19(2)(b)-(d) before it can require an occupant to vacate because that would impose too great a barrier to necessary public projects. The effect of such a construction, the City argues, would be that projects needed to improve or provide public transportation and other public services could not occur if there were no comparable replacement properties meeting the applicable statutory definition. According to the City, this is an absurd result that we can and should avoid by construing § 32.05(8)(b) and (c) as not requiring a condemnor to identify a comparable replacement property meeting the applicable statutory definition before it requires an occupant to vacate, so long as the condemnor has identified some property that could be made comparable and has offered all the payments to which the occupant is entitled under § 32.19 and all other assistance to which the occupant may be entitled under statute and regulation.

¶ 30. We acknowledge that construing Wis. Stat. § 32.05(8)(b) and (c) to require that the condemnor identify a comparable replacement property meeting the applicable definition in Wis. Stat. § 32.19(2) (b)-(d) may impose significant impediments to public projects in cases where no such property exists. However, we do not agree our construction will lead to absurd results. While there are important public policies that favor facilitating the condemnation of property and removal of occupants when the property is necessary for projects that benefit the public, there are also important public policies that favor ensuring that displaced occupants have a comparable property to move to. It is for the legislature to decide the proper balance, within the parameters of constitutional requirements, between these policies when there is a conflict. The legislature could reasonably decide that a condemnor should not be able to remove an occupant if there is no comparable replacement property for it to move to, even if this means modifying, or even not going ahead with, a desirable public project.

¶ 31. We are satisfied that the legislature has expressed this intent in the plain language of Wis. Stat. § 32.05(8)(b) and (c) and Wis. Stat. § 32.19(2)(b)-(d). The legislature could have stated that the condemnor could require an occupant to vacate if no comparable replacement property existed; it could have defined comparable replacement property in less restrictive ways; it could have provided that if the condemnor offers all the payments to which an occupant is entitled under § 32.19, it has satisfied the obligation to make available a comparable replacement property before requiring the occupant to vacate. However, the legislature has done none of these things. Instead it has chosen to plainly state that a condemnor may not require an occupant to vacate "until a comparable replacement property is made available," § 32.05(8)(c), and it has chosen to very specifically define three categories of comparable replacement properties in § 32.19(2)(b)-(d).

¶ 32. Applying the plain language of Wis. Stat. § 32.05(8)(b) and (c) and Wis. Stat. § 32.19(2)(b)-(d) in light of the judicial construction of "made available" from Dotty Dumpling's, we conclude that the City could not require CC Midwest to vacate the property the City had acquired without identifying a comparable replacement property meeting the definition of § 32.19(2) (c). Because it is undisputed that none of the properties the City identified met that definition, the City was not entitled to a writ of assistance. Accordingly, we reverse the circuit court's judgment issuing the writ and direct it to enter a judgment denying the writ.

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

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

       The correspondence was from Cen Tra on behalf of CC Midwest.

       CC Midwest also argued in the circuit court that the granting of the writ would constitute a taking of its property without just compensation in violation of the Fifth Amendment of the United States Constitution and article 1, section 13 of the Wisconsin Constitution. The circuit court rejected this argument and CC Midwest renews it on appeal. We do not address it because of our resolution of the statutory argument.

       CC Midwest also asserts that none of the properties met the definition of "comparable replacement business" in Wis. Admin. Code § COMM 202.01(7), which essentially tracks the statutory definition. Wisconsin Stat. § 32.26(2)(a) grants the Department of Commerce the authority to promulgate regulations to implement Wis. Stat. § 32.19, and the department has done that in Wis. Admin. Code ch. COMM 202. We do not further discuss these regulations because neither party relies on them in its argument on the proper construction of the statute.

       Before holding oral argument, we certified this case to the supreme court and the supreme court did not accept certification. In the certification, we identified the issue as the meaning of "comparable replacement business" in Wis. Stat. § 32.19(2)(c), and we described the definition as ambiguous because of terms such as "reasonably similar" and "functionally equivalent." However, after subsequent supplemental briefing and oral argument, it has become apparent that the dispute between the parties is not over whether any of the properties identified by the City meet the definition of § 32.19(2)(c).

       WISCONSIN Stat. § 32.19(3) provides:
      (3) Relocation payments. Any condemnor which proceeds with the acquisition of real and personal property for purposes of any project for which the power of condemnation may be exercised, or undertakes a program or project that causes a person to be a displaced person, shall make fair and reasonable relocation payments to displaced persons, business concerns and farm operations under this section. Payments shall be made as follows:
      (a) Moving expenses; actual. The condemnor shall compensate a displaced person for the actual and reasonable expenses of moving the displaced person and his or her family, business or farm operation, including personal property; actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property; actual reasonable expenses in searching for a replacement business or farm operation; and actual reasonable expenses necessary to reestablish a business or farm operation, not to exceed $10,000, unless compensation for such expenses is included in the payment provided under sub. (4m).
      (b) Moving expenses; optional fixed payments.

      1. 'Dwellings.1 Any displaced person who moves from a dwelling and who elects to accept the payments authorized by this paragraph in lieu of the payments authorized by par. (a) may receive an expense and dislocation allowance, determined according to a schedule established by the department of commerce.
      2. 'Business and farm operations.' Any displaced person who moves or discontinues his or her business or farm operation, is eligible under criteria established by the department of commerce by rule and elects to accept payment authorized under this paragraph in lieu of the payment authorized under par. (a), may receive a fixed payment in an amount determined according to criteria established by the department of commerce by rule, except that such payment shall not be less than $1,000 nor more than $20,000. A person whose sole business at the displacement dwelling is the rental of such property to others is not eligible for a payment under this subdivision.

        (c) Optional payment for businesses. Any displaced person who moves his or her business, and elects to accept the payment authorized in par. (a), may, if otherwise qualified under par. (b) 2., elect to receive the payment authorized under par. (b) 2., minus whatever payment the displaced person received under par. (a), if the displaced person discontinues the business within 2 years of the date of receipt of payment under par. (a), provided that the displaced person meets eligibility criteria established by the department of commerce by rule. In no event may the total combined payment be less than $1,000 nor more than $20,000.

       WISCONSIN Stat. § 32.19(4m)(b) provides in full:
      (b) Tenant-occupied business or farm operation. In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment to any tenant displaced person who has owned and occupied the business operation, or owned the farm operation, for not less than one year prior to initiation of negotiations for the acquisition of the real properly on which the business or farm operation lies or, if displacement is not a direct result of acquisition, such other event as determined by the department of commerce, and who actually rents or purchases a comparable replacement business or farm operation for the displaced business or farm operation within 2 years after the date the person vacates the acquired property. At the option of the tenant displaced person, such payment shall be either:
      1. The amount, not to exceed $30,000, which is necessary to lease or rent a comparable replacement business or farm operation for a period of 4 years. The payment shall be computed by determining the average monthly rent paid for the property from which the person was displaced for the 12 months prior to the initiation of negotiations or, if displacement is not a direct result of acquisition, such other event as determined by the department of commerce and the monthly rent of a comparable replacement business or farm operation, and multiplying the difference by 48; or
      2. If the tenant displaced person elects to purchase a comparable replacement business or farm operation, the amount determined under subd. 1. plus expenses under par. (a) 3.

        If the owner of the displaced business also owned the real property acquired by the condemnor and actually purchases a comparable replacement business within two years, the con-demnor must pay that person an amount not to exceed $50,000 as provided in Wis. Stat. § 32.19(4m)(a).

       The condemnor had made a jurisdictional offer of $583,680. Dotty Dumpling's Dowry, Ltd. v. Cmty. Dev. Auth. of the City of Madison, 2002 WI App 200, ¶ 3, 257 Wis. 2d 377, 651 N.W.2d 1.

       We are not presented with facts that create a dispute regarding whether any of the properties identified by the City are a "comparable replacement business" property within the meaning of Wis. Stat. § 32.19(2)(c). It is readily apparent that none of the identified properties comes close to being "reasonably similar in all major characteristics" and "functionally equivalent" with respect to factors such as "condition" and "square footage." See § 32.19(2)(c). This leads us to two observations. First, the City's concession that none of the properties identified are comparable replacement business properties is appropriate. Second, this case does not provide a vehicle for clarifying how similar an identified property must be in order to fit the definition in § 32.19(2)(c).

       At oral argument, CC Midwest stated that it had vacated the property after the circuit court issued the writ and the building was then torn down within a few days. In CC Midwest's view, if we reverse the circuit court's judgment issuing the writ, that ends this action and any remedies it might have against the City would be the subject of another action. The City does not suggest that any further proceedings are necessary in the circuit court if we agree with CC Midwest that the City was not entitled to the writ.