author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Walter A. Paget, Attorney at Law: Office of Lawyer Regulation, Complainant-Appellant, v. Walter A. Paget, Respondent-Respondent.
    Supreme Court

      No. 01-2614-D.

      Submitted on briefs February 18, 2003.

      Decided April 29, 2003.

    2003 WI 26
    (Also reported in 660 N.W.2d 255.)

      For the complainant-appellant there were briefs by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy & Haas, LLP, Edgerton.
    For the respondent-respondent there was a brief by David A. Saichek and Saichek Law Offices, S.C., Milwaukee.
   PER CURIAM.

¶ 1. The Office of Lawyer Regulation (OLR) has appealed from the findings of fact, conclusions of law, and recommendation of the referee that Attorney Walter A. Paget did not engage in professional misconduct with regard to client funds.

¶ 2. We agree with the referee's recommendation and adopt the findings of fact, conclusions of law, and discussion in his report.

¶ 3. Paget was licensed to practice law in Wisconsin in 1992. His license was administratively suspended on June 9, 1999, for failure to comply with Continuing Legal Education (CLE) requirements and he has not practiced since. Prior to that, on May 29, 1998, he consented to the imposition of a. private reprimand for having knowingly engaged in the practice of law while his license was suspended for a period during 1997, again for a CLE violation.

¶ 4. The present case involves an OLR complaint against Paget on October 1, 2001, claiming that he (1) accepted money specifically intended for client restitution and failed to hold that money in a trust account in violation of SCR 20:1.15(a); and (2) failed to deliver the money for restitution in violation of SCR 20:1.15(b). Paget admitted many of the factual allegations of the complaint but denied any misconduct.

¶ 5. The complaint arises out of Paget's representation of Enrique Baez on a theft charge and an accompanying probation revocation that was later dropped. There is no documentation concerning Paget's representation of Baez, specifically how attorney's fees would be paid. However, Baez periodically paid Paget, by cash and money orders, an amount that Baez believes was approximately $2400. Paget claims the amount was only approximately $1600. Baez claims that approximately $845 of the amount he paid Paget was intended to be held by Paget in trust for the purpose of paying the approximately $3600 restitution for the theft when that eventually would be ordered. Paget denies this and maintains that all payments he received from Baez were solely for the purpose of attorney's fees. Once again, there is no documentary evidence of any of this. Paget did maintain a trust account but never deposited anything received from Baez into it.

¶ 6. Aside from Baez, who testified at the OLR hearing, the only documentary evidence in support of his claim consisted of the following.

¶ 7. First, a log kept by the Department of Corrections (DOC) concerning Baez contained an entry for April 15, 1997, (Baez had pled guilty on February 10, 1997) that stated in part:

Contacted D's lawyer to verify D has been making payments toward Sears; attorney states he has $700 fin. D; attorney states he's attempted to contact D.A. in order to find out who/where the restitution needs to be forwarded.

Paget testified that he did have a telephone conversation with the DOC probation and parole agent but denies that he said that he was holding money. Rather, Paget testified that he told the agent that Baez had merely told him that Baez had raised the $700 toward restitution and it was not actually in Paget's hands.

¶ 8. Second, on April 22, 1997, Paget, appearing on behalf of Baez at sentencing, argued in Milwaukee County Circuit Court:

[IJnsofar as the restitution, Baez has given me since the plea date $845 to apply toward restitution. I have attempted to contact the State to get those funds in the proper hands, but we ended up voicemailing each other to go nowhere. I'm prepared today to write a check out of my cost account for $845 to get this restitution rolling.

Paget admitted making this statement but still insisted he never had any money from Baez for restitution. Rather, he claims he merely made the statement to "protect the interest" of his client. Paget believes he easily could have obtained the funds from Baez had the court so ordered and therefore it was not "misleading" the court by suggesting that the funds were already in Paget's hands. Paget noted that the court eventually refused the offer to pay on the spot and thereafter Paget refused Baez's offer to him to "save" money for him. Paget says he told Baez to keep the money himself until the full amount of the restitution could be raised.

¶ 9. The referee, Michael Ash, found in general that "[v]irtually all the facts concerning Paget's representation of Baez, and Baez's payments to Paget, are unclear and uncertain." The referee considered Paget an "impressive . . . honest and candid" witness on direct examination with "no special axe to grind." However, the referee viewed him as "defensive and evasive" on cross-examination. On balance, the referee characterized Baez as a "fairly strong witness" for OLR but "not necessarily one whose every word I would be inclined to credit." In particular, the referee focused on Baez's inability to identify any specific words Paget said back to him indicating that Paget — and not just Baez— intended that some of the funds paid over were intended to be held for restitution.

¶ 10. The referee did not directly comment on Paget's credibility. However, the referee acknowledged that the DOC log "raises questions" and concluded that Paget's denial that he made the statement to the DOC agent "does not completely dispel" those questions. But the referee indicated that the DOC agent's inability to recall the conversation made it "difficult to disbelieve Paget's version."

¶ 11. The referee further acknowledged the difficulty with Paget's statement in court, Paget's explanation for which the referee did not consider "completely convincing." Yet the referee concluded that he could not "discredit it with confidence" and drew the conclusion that there would have been no reason for Paget to cheat his client out of the money if indeed he had just admitted in open court that he was holding the funds for restitution.

¶ 12. The referee concluded there had been no disciplinary violations:

Although Baez may have believed that he had given Paget money for restitution, the OLR did not establish. by clear, satisfactory, and convincing evidence that Baez provided Paget with money mutually understood to have been held in trust by Paget pending the use of such funds for restitution ... It also did not establish that he "failed to deliver" such funds in violation of SCR 20:1.15(b). .. [Given] the complete lack of any documents or other specific information about the amounts, timing, form, nature and purpose of Baez's payments to Paget, I have concluded that Paget has not been proven to had committed misconduct.

The referee's findings of fact will be adopted unless they are clearly erroneous. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, 248 Wis. 2d 662, 636 N.W.2d 718; In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 562 N.W.2d 137 (1997). Where there is conflicting evidence, the referee, as the trier of fact, is the ultimate arbiter. See In re Disciplinary Proceedings Against Camacho, 126 Wis. 2d 104, 375 N.W.2d 204 (1985); In re Disciplinary Proceedings Against Pump, 120 Wis. 2d 422, 355 N.W.2d 248 (1984). We will not make a finding that the referee could have made on the evidence before him but did not. In re Disciplinary Proceedings Against Wood, 122 Wis. 2d 610, 363 N.W.2d 220 (1984).

¶ 13. The keys to this matter center on the impact of the DOC log entry and the court transcript, and the credibility battle between Baez and Paget.

¶ 14. Obviously the DOC log entry and the court transcript, viewed in isolation, support Baez's claim. On the other hand, Paget had an explanation for both pieces of evidence that the referee considered "difficult to disbelieve" and impossible to "discredit with confidence."

¶ 15. The report does not clearly indicate whether the referee believed Paget rather than Baez or whether there was insufficient evidence to permit any finding in that regard. Either way, it is evident that the referee believed at the very least that there was no mutual understanding between Paget and Baez as to the proper disposition of funds, and therefore he could not conclude that the OLR had sustained its burden to establish by clear, satisfactory, and convincing evidence that Paget had committed misconduct.

¶ 16. It is the function of the referee in these disciplinary matters to hear conflicting testimony, examine documentary evidence and reach findings that resolve disputed matters. While another trier of fact perhaps might have rendered different findings and then concluded that misconduct had occurred, we cannot hold that the referee's findings are clearly erroneous in any respect. The OLR asks us to take the referee's findings and after a de novo review conclude that misconduct occurred. We cannot do this because the present findings plainly do not support that conclusion.

¶ 17. Accordingly, we adopt the referee's report and conclude that no professional misconduct was committed in this matter.

¶ 18. IT IS ORDERED that the disciplinary proceeding is dismissed without costs to either party.

¶ 19. DAVID T. PROSSER, J. (concurring). I respect and appreciate the work of the court's appointed referees in the Lawyer Regulation System. Their findings of fact are entitled to great deference and should not be disturbed unless they are clearly erroneous. For the court to adopt a different standard of review would plunge us into a fact-finding role to which we are not well suited.

¶ 20. Because it is important to honor the standard of review, I concur in the decision of the court. I write separately, however, to emphasize that if I had a free hand, I would decide the case differently.

¶ 21. To me, the paper record in this case is clear. Enrique Baez was convicted of theft in February 1997. He was sentenced for the theft on April 22, 1997. He realized early on that restitution would be part of his sentence. On April 14, 1997, Baez told his probation agent that he had given money to his attorney, Walter Paget, to be applied to restitution. The agent recorded the following entry in her log: "The offender states he has been making restitution to Sears giving the payments to his lawyer who directs the money to the victim." The next day the agent contacted Attorney Paget and then reported her account of the conversation:

Contacted [defendant's] lawyer to verify [defendant] has been making payments towards Sears; [Attorney] states he has $700 from [defendant]; [Attorney] states he's attempted to contact [district attorney] in order to find out who/where the restitution needs to be forwarded. [Defendant] stated that he also had $500 in bail that would be applied towards balance.

¶ 22. One week later, at the sentencing hearing, Attorney Paget addressed Milwaukee County Circuit Court Judge Timothy G. Dugan:

MR. PAGET: Finally, insofar as the restitution, Mr. Baez has given me since the plea date $845 to apply towards restitution. I've attempted to contact the State to get these funds in the proper hands, but we ended up voice mailing each other to nowhere. I'm prepared today to write a check out of my cost account for $845 to get this restitution rolling.

¶ 23. There can be no dispute that Attorney Paget's statement in court acknowledges the receipt of $845 from Baez to be used for restitution. There can be no dispute that Baez's probation agent contacted Paget a week earlier to discuss restitution and then summarized a statement that is entirely consistent with Paget's later statement in court. In addition, the record shows that Baez maintained — over a period of several years — that he paid more than $800 in restitution to Attorney Paget. He acted in conformity with that position when he filed a grievance against Paget and testified under oath in support of his grievance.

¶ 24. To defend himself, Attorney Paget was forced to do more than dispute Baez's statements. He had to repudiate his own statements affirming Baez's assertions. I find his explanations unpersuasive. If Attorney Paget never received any money from Baez for restitution, as he claims, he should never have looked a circuit judge in the eye and told him otherwise.

¶ 25. Attorney Paget prevails in the disciplinary action for the reasons stated, but the cloud over his victory may be with him for a long time.

¶ 26. I am authorized to state that Justices N. PATRICK CROOKS and DIANE S. SYKES join this opinion.

       SCR 20:1.15(a) provides:
      (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in hearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.


source: Caselaw Access Project

author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

license: Public Domain

text:
    In re the Marriage of: Jan Raz, Petitioner-Respondent-Cross-Appellant, v. Mary Brown, Respondent-Appellant-Cross-Respondent-Cross-Petitioner.
    Supreme Court

      No. 01-2436.

      Submitted on briefs March 6, 2003.

    Decided May 1, 2003.

    2003 WI 29
    (Also reported in 660 N.W.2d 647.)

      For the respondent-appellant-cross-respondent-cross-petitioner there were briefs by Randolph E. House and Law Offices of Randolph House, Mequon, and Pamela M. Schmidt and Whyte Hirschboeck Dudek, S.C., Milwaukee.
    For the petitioner-respondent-cross-appellant there was a brief by Jan Raz, pro se, Hales Corners.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of an unpublished opinion of the court of appeals. Our review is limited to that part of the decision of the court of appeals that summarily reversed orders of the circuit court for Milwaukee County, Michael Guolee, Judge, relating to child support obligations and physical placement of the children of Mary Brown and her former husband, Jan Raz. The court of appeals summarily reversed part of the circuit court order as a sanction against the wife for failing to file a response brief to her former husband's cross-appeal. The issue in this case is whether the court of appeals erred when it sanctioned the wife by summarily reversing the order because of her failure to file a response brief in the court of appeals.

¶ 2. The wife argues that the sanction of summary reversal imposed by the court of appeals was harsh and drastic and therefore, under State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999), may be imposed only after a finding of egregious conduct, bad faith, or an abandonment of the appeal. According to the wife, neither her conduct nor that of her attorneys meets these criteria. The husband responds that the wife's conduct and that of her attorney satisfy the Smythe standard and therefore summary reversal in his favor was an appropriate sanction.

¶ 3. We hold that summary reversal is a drastic sanction and that the court of appeals may not impose this sanction without finding egregious conduct, bad faith, or a litigant's abandonment of the appeal. We therefore conclude that the court of appeals erroneously exercised its discretion when it summarily reversed the order of the circuit court as a sanction against the wife without applying this standard of law. In addition, we conclude that the conduct of the wife and her counsel in the present case was not egregious, did not demonstrate bad faith, and did not amount to abandonment of the appeal.

¶ 4. Accordingly, that part of the decision of the court of appeals summarily reversing the circuit court orders on the issues raised in the husband's cross-appeal as a sanction is reversed and the case is remanded to the court of appeals for a determination of the merits of the issues raised in the cross-appeal.

¶ 5. The procedural facts of the case are undisputed. The parties were divorced in the Milwaukee County circuit court in December 1991. The judgment of divorce included a marital settlement agreement that divided custody between the parties, granting the wife primary placement, and requiring the husband to pay child support in the amount of $2,100 per month. On June 7, 1996, the circuit court modified the amount of child support at the husband's request, and the modification was upheld on appeal.

¶ 6. The present case began on October 22, 1998, when the husband filed a request to modify child support and a motion for declaratory judgment seeking a declaration that Wisconsin's child support statutes were unconstitutional. The wife filed a counter-motion for modification of physical placement. The husband filed an additional motion asking the circuit court to find the wife in contempt for allegedly failing to participate in court-ordered family therapy and a counter-motion to modify physical placement.

¶ 7. ■ Extensive hearings were conducted on the issues of child support and placement between September 1999 and April 2001. On November 11,1999, before hearing further testimony on the issue of child support, the circuit court heard argument on the husband's motion challenging the constitutionality of Wisconsin's child support statutes. The circuit court ruled that the husband's constitutional claims were barred by the doctrine of claim preclusion. According to the circuit court, the husband could have fully raised these claims in his 1996 action, and because he did not, he was precluded from raising them in the present case.

¶ 8. In May 2001, the circuit court issued an order regarding physical placement and child support. The circuit court ordered physical placement of the children to be divided equally between the parties. The circuit court also vacated the existing child support order, requiring each parent to pay for the children's expenses while they were in his or her care. In addition, the circuit court found the wife in contempt for unilaterally interfering with the court's prior order to participate in therapy. The circuit court declined to assess attorney fees to either party.

¶ 9. The wife appealed the circuit court's orders, challenging the modification of physical placement and child support and alleging error in finding her in contempt of court. The husband cross-appealed. He argued that Wisconsin's child support guidelines violate the Fourteenth Amendment of the U.S. Constitution, that the circuit court therefore erred by not considering his request for costs in bringing his underlying action, and that the circuit court erred by not retroactively modifying the existing child support order.

¶ 10. The wife filed a brief as appellant. The husband filed a combined response brief and cross-appellant's brief. In a letter dated March 27, 2002, the wife's counsel advised the court of appeals that the wife did not intend to file either a reply brief on the appeal or a response brief to the husband's cross-appeal.

¶ 11. The court of appeals issued an order dated April 2, 2002, directing the wife to file either a responsive brief in the cross-appeal or a brief letter stating that she had decided not to file the responsive brief with the understanding that any issues raised in the cross-appeal and not refuted may be construed by the court as conceded. The court of appeals' order reads, in relevant part, as follows:

Before accepting [respondent's letter] in lieu of a responsive brief in the cross-appeal, this court must be assured that the cross-respondent has decided not to file a responsive brief with a full understanding of the possible consequences ... Therefore, IT IS ORDERED that counsel for Brown shall, within ten days of the date of this order, either file a responsive brief in the cross-appeal or file a brief letter indicating that Brown has decided not to file a responsive brief with the complete understanding that any issues raised in the cross-appeal and not refuted as a result of not filing the responsive brief may be construed by this court as conceded.

¶ 12. The wife's counsel responded to this order by letter dated April 4, 2002, advising the court of appeals that the wife would not file a response brief because the husband's cross-appeal lacked merit. The April 4, 2002, letter stated as follows:

Counsel for [the wife] has previously discussed with [the wife] the consequences of not filing a brief in response to that filed by [the husband]. Counsel for [the wife] and his client have discussed on several occasions the total lack of merit set forth in the [husband's] brief. It is also noted that the Attorney General's Office opted not to file a brief in response to the constitutional challenges raised in [the husband's] brief. Further, it is the opinion of [the wife's] counsel that assuming, for argument purposes, all of [the husband's] arguments were accepted by the court, they do not raise questions sufficient to challenge the constitutionality of the statutes. Also, it is [the wife's] position that should the court find the statutes unconstitutional, such a finding would require a retrial on all of the issues which are currently before the Court of Appeals with regard to the substantive aspects of the trial court's decision.

¶ 13. The court of appeals issued a decision on the merits affirming the circuit court with regard to the claims the wife raised on appeal. As to the claims raised by the husband on cross-appeal, the court of appeals summarily reversed the circuit court (without reaching the merits) "as a sanction" against the wife. The court of appeals concluded that the wife violated the rules of appellate procedure by not filing a response brief within the time set forth in Wis. Stat. § (Rule) 809.19(3)(a) (1999-2000) and explained that it declined to do her work for her. Consequently, the court of appeals summarily reversed the circuit court's order on the issues raised in the husband's cross-appeal.

¶ 14. A decision by the court of appeals to grant summary reversal as a sanction against a party who fails to file a brief by the date due involves an exercise of discretion. This court does not normally review a discretionary decision of the court of appeals. However, when we do review a discretionary act of the court of appeals, we review the decision as we would any other exercise of discretion.

¶ 15. A discretionary decision will be upheld if the court being reviewed examined the relevant facts, applied a proper standard of law, and used a demonstrative rational process in reaching a decision that a reasonable judge could reach. A discretionary decision will be reversed as an erroneous exercise of discretion if we conclude that the decision was based on an improper standard of law.

¶ 16. Wisconsin Stat. § (Rule) 809.83(2) (1999-2000) sets out several sanctions a court of appeals may impose in response to a litigant's failure to follow appellate rules of procedure. The sanctions include dismissal of the appeal, summary reversal, imposition of a penalty or costs on a party or counsel, or such other actions "the court considers appropriate." Section 809.83(2) reads as follows:

809.83(2). Noncompliance with rules. Failure of a person to comply with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.

¶ 17. In State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999), this court recognized that some sanctions under Wis. Stat. § (Rule) 809.83(2) constitute more severe punishment than others. In particular, we concluded that "dismissal with prejudice is a drastic sanction." Dismissal of an appeal represents an abrupt termination of litigation, and, like the dismissal of a complaint by a circuit court, "in many cases it imposes a finality to both issues and claims." When an appellate court grants a dismissal, an appellant loses the right to a review on the merits; dismissal with prejudice is therefore reserved for extreme situations where there is compelling evidence of willful default. Consequently, we held in Smythe that for the court of appeals to dismiss an appeal under the sanction provisions of § 809.83(2) there must be a showing that an appellant or an appellant's attorney has demonstrated bad faith or egregious conduct, or there must be a common sense finding that the appeal has been abandoned.

¶ 18. We conclude that the Smythe standard is applicable here even though the present case involves a summary reversal as a sanction rather than a dismissal. Dismissal of . an appeal results in an appellant losing and the respondent winning. Summary reversal results in an appellant (here the cross-appellant) winning and the respondent losing. In both a dismissal and a summary reversal, however, there is an abrupt termination of litigation and one party loses as a sanction without a consideration on the merits. Dismissal and summary reversal are therefore both drastic sanctions. Consequently, the court of appeals may not grant summary reversal of a circuit court order on appeal as a sanction without a finding of bad faith, egregious conduct, or a litigant's abandonment of the appeal.

¶ 19. The court of appeals in the present case did not apply the standard of law announced in Smythe when reaching its decision to sanction the wife, nor did it make a finding of bad faith, egregious conduct, or a litigant's abandonment of the appeal. The court of appeals granted summary reversal as a sanction because the wife did not file a brief within the time prescribed by Wis. Stat. § (Rule) 809.19(3)(a), and the court declined to do the wife's work for her. The court of appeals explained simply that it is a "fast-paced, high-volume court" that cannot serve as "both an advocate and judge." We thus conclude that the court of appeals' exercise of discretion was clearly erroneous.

¶ 20. Because the court of appeals did not apply the Smythe standard to the facts of this case, we now do so. This case turns on a paper record that we can review as well as the court of appeals.

¶ 21. The husband argues that the actions of the wife and her counsel meet the criteria for sanctions established in Smythe. According to the husband, the wife's decision not to file a response brief in the face of the court of appeals' April 2, 2002, order represents contempt for the order and a choice to be in default. In addition, the husband asserts that the wife's conduct throughout the history of this case, and that of her counsel, have been egregious and in bad faith as evidenced by her failure to respond to his overtures to resolve their issues without litigation and her repeated filing of motions for reconsideration and appeal. This conduct, the husband contends, would be sufficient to warrant the imposition of attorney fees under Wis. Stat. § 767.262(l)(a), which governs the award of attorney fees in actions affecting the family, or as a penalty under the overtrial doctrine.

¶ 22. The wife, in turn, argues that her decision not to file a response brief was not in bad faith, egregious conduct, or an abandonment of her appeal. The wife contends that neither Wis. Stat. § (Rule) 809.19(6) governing the timing of filing briefs nor the April 2 court order required her to file a response brief in the present case. Moreover, according to the wife, the husband's claims had been rejected by the court of appeals in a prior case between the two parties in 1997, and it was therefore reasonable to assume these claims would be rejected in the present case, making a response brief unnecessary.

¶ 23. We agree with the wife that her conduct and that of her counsel was not egregious, done in bad faith, or an abandonment of her appeal.

¶ 24. Instead of filing a response brief to the husband's cross-appeal, the wife sent a letter to the court of appeals within the time limit prescribed for filing her brief. The letter explained very simply that the wife would not be filing either a reply brief or a "responsive brief in the cross-appeal."

¶ 25. The court of appeals responded to this letter by issuing an "order" that neither required the wife to file a response brief nor threatened summary reversal for her failure to do so. The order explained that her failure to file a response brief may result in the court of appeals construing any issues raised in the cross-appeal as conceded. The order quoted Charolais Breeding Ranches v. FPC Securities, 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979), for the proposition that "respondents on appeal cannot complain if propositions of appellants are taken as confessed when they do not undertake to refute them."

¶ 26. The order then gave the wife a choice to be made "within ten days." She had to either "file a responsive brief in the cross-appeal or file a brief letter indicating that [she] has decided not to file a responsive brief." The wife's response fully complied with this order. Two days after the order was issued, she filed a letter (through her attorney) indicating that she was aware of the consequences of not filing a response brief and elected not to file one because the arguments in the cross-appeal lacked merit.

¶ 27. The wife's decision to file a letter instead of a response brief, therefore, cannot be considered egregious or conduct undertaken in bad faith. The wife fully and timely complied with the court's order and through the wife's letter the court of appeals was made aware of her position that the husband's constitutional claims lacked merit and should be rejected. Moreover, the wife cannot be said to have abandoned her appeal since she timely sent letters to the court in lieu of a response brief after the court of appeals expressly gave her the invitation to do so.

¶ 28. The present case should be compared with State ex rel. Blackdeer v. Township of Levis, 176 Wis.2d 252, 500 N.W.2d 339 (Ct. App. 1993). The Blackdeer case, like the present case, involved a summary reversal as a sanction for failure to file a response brief. Unlike the present case, however, the Blackdeer decision appropriately applied the sanction on a party that had abandoned its appeal.

¶ 29. In Blackdeer, the circuit court dismissed the plaintiffs complaint against the Town of Levis and the plaintiff appealed to the court of appeals. The Town, the respondent, failed to file a response brief in the court of appeals.

¶ 30. The Town's response brief was due on September 26,1990, but was not filed. The court of appeals in Blackdeer sua sponte gave the Town several extensions of time to file its brief and ordered the Town to file a brief, warning that if no brief were filed it could result in summary reversal. The Town did not file a brief; it did not respond to the court of appeals' orders; it did not move to extend its briefing deadline.

¶ 31. On November 6, 1990, the court of appeals in Blackdeer summarily reversed the circuit court's order. The court of appeals dismissed the complaint against the Town of Levis as a sanction "solely on the basis of the [Town's] failure to file its brief and without regard to the merits of the appeal."

¶ 32. As the Smythe case has interpreted Wis. Stat. § (Rule) 809.83(2), a common sense abandonment of an appeal provides sufficient reason for imposing the drastic sanction of summary reversal. In Blackdeer, the Town abandoned its position on appeal by not responding to numerous requests by the court of appeals to file a brief. In the present case, in contrast, the wife did not abandon her position opposing the appeal. The wife sent two letters to the court of appeals explaining her interest in proceeding with the appeal and her reasons for not filing a brief. One letter was sent to satisfy the rule prescribing the time for filing a brief. The other letter was sent in response to the order of the court of appeals, explaining why no further brief would be filed.

¶ 33. The husband's assertions that the wife and her counsel are guilty of egregious conduct and bad faith for actions committed at the circuit court level do not alter our conclusion. Assuming arguendo that his accusations are true, we are reviewing the court of appeals' sua sponte decision to summarily reverse a circuit court order as a sanction against a party for violating rules of appellate procedure, a decision made without reference to or regard for either party's conduct in the circuit court. Issues of egregious conduct or bad faith in the circuit court are not relevant in the present case relating to the court of appeals' imposing sanctions for conduct in the court of appeals.

¶ 34. The husband's claim that the sanction is appropriate under Wis. Stat. § 767.262(1), which governs attorney fees, also misses the mark. Section 767.262(1) authorizes a court to order one party in an action affecting the family to pay for the costs or attorney fees associated with maintaining or responding to the action. It mentions nothing about summary reversal.

¶ 35. Similarly, the overtrial doctrine allows a party in a family law case to seek attorney fees when another party's unreasonable approach to litigation causes him to incur unnecessary fees. The proper procedure is to bring a claim in the circuit court where the unreasonable litigation occurs and the proper remedy is attorney fees. In the present case, the husband has not properly raised any such claim.

¶ 36. We appreciate that the Wisconsin Court of Appeals faces a heavy caseload and that it is entitled to wide latitude when enforcing procedural rules designed to make the appellate process more efficient. However, where the court of appeals elects to impose the drastic sanction of summary reversal for failure to file a response brief, it may do so only after unequivocally ordering the filing of a brief and clearly stating the consequences for failure to comply. Here, the wife apparently did not conclude that she would be sanctioned by a summary reversal based on the court of appeals' order. Nothing in this case should be read as-prohibiting summary reversal as a sanction on different facts, should the court of appeals find egregious conduct, bad faith, or an abandonment of the appeal.

¶ 37. For the foregoing reasons, the decision of the court of appeals to summarily reverse the circuit court on the issues raised in the husband's cross-appeal is reversed and the case is remanded to the court of appeals for a determination on the merits of the issues raised on cross-appeal including award of costs, if any. If a response brief is necessary to reach a determination on the merits, the court of appeals may order one to be filed.

By the Court. — The decision of the court of appeals is reversed and cause remanded.

        Raz v. Brown, No. 01-2436, unpublished slip op. (Wis. Ct. App. July 16, 2002).

       The husband also argues that his cross-appeal was not meritless or repetitious. In addition, he devotes much of his response brief to arguing the unconstitutionality of the Wisconsin placement and child support statutes and invites this court to address this issue. We decline to do so. We denied his petition for review in our order of November 12, 2002.

        See Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997).

       The wife filed a motion for reconsideration that was heard and denied on July 9, 2001.

         Raz v. Brown, No. 01-2436, unpublished slip op. ¶ 41 (Wis. Ct. App. July 16, 2002).

         Id.

         The court of appeals remanded the cause to the circuit court to determine the costs the husband incurred as a result of litigating the alleged violation of the Fourteenth Amendment and for a hearing to determine the amount of child support the husband is due from October 22, 1998, to June 7, 2001.

        State v. Smythe, 225 Wis. 2d 456, 462, 592 N.W.2d 628 (1999) (dismissing an appeal as a sanction for failure to file a brief is a discretionary act).

         Id.

        Smythe, 225 Wis. 2d at 462-63 ("If this court does review, we must review the court of appeals' decision as we would any other exercise of discretion.") (quoting State v. Johnson, 149 Wis. 2d 418, 429, 439 N.W.2d 122 (1989), confirmed on reconsideration, 153 Wis. 2d 121, 449 N.W.2d 845 (1989)).

        Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

        Smythe, 225 Wis. 2d at 463.

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

        Smythe, 225 Wis. 2d at 468.

        Id. at 469.

        Id. at 468 n.10.

        Id. at 469.

       Raz v. Brown, No. 01-2436, unpublished slip op., ¶ 41 (quoting State v. Pettit, 171 Wis. 2d 627, 674, 492 N.W.2d 633 (Ct. App. 1992)).

       The overtrial doctrine may be invoked in family law cases when, for example, one party's unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. Ondrasek v. Ondrasek, 126 Wis. 2d 469, 484, 377 N.W.2d 190 (1985). A court may order the party who engaged in overtrial to pay the opposing party's attorney fees.

        State ex rel. Blackdeer v. Township of Levis, 176 Wis.2d 252, 257-58, 500 N.W.2d 339 (Ct. App. 1993).

       Wisconsin Stat. § 767.262(1) reads in pertinent part:
      767.262. Award of attorney fees. (1) The court, after considering the financial resources of both parties, may do the following: (a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.

        In re Attorney's Fees in Yu v. Zhang, 2001 WI App 267, ¶ 13, 248 Wis. 2d 913, 637 N.W.2d 754 (quoting Ondrasek v. Ondrasek, 126 Wis. 2d 469, 484, 377 N.W.2d 190 (1985)).

        See, e.g., Johnson v. Johnson, 199 Wis. 2d 367, 376-78, 545 N.W.2d 239 (Ct. App. 1996).

       The husband filed a Motion for Costs, Damages, and Additional Sanctions with this court on December 30,2002. The motion seeks two things. First, it seeks the husband's costs, measured in terms of lost work hours, for preparing his petition for review, his response to the wife's petition for review, and his response brief in this case. According to the defendant, he was required to incur these costs as a result of the wife's "willful default and contempt of the Court of Appeals April 2, 2002 order." Second, the motion seeks sanctions against the wife's counsel for failing in his responsibility "to provide truthful statements of fact and law" despite being admonished by the court of appeals for misrepresenting the record on appeal.
      The husband's motion was held in abeyance pending this decision and we now deny the husband's motion. For the reasons set forth in this opinion, we conclude that the wife fully and timely complied with the April 2 order of the court of appeals. Consequently, any resulting costs associated with proceedings in this court that the husband has incurred cannot be attributed to the wife's "willful default and contempt." Furthermore, we do not find that any statements made by wife's counsel in the present case constitute professional misconduct or otherwise warrant sanctions.


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

text:
    James Bruno, James Schindler, Edgar Wesling, Fred Antonich, William J. Beam, Lyle H. Bonnin, George A. Bowman, Martha Clark, Rosario Consiglio, Robert G. Francis, John Glowacki, Herbert A. Goetsch, Dorothy Haynes, Kenneth Henrics, George Kozik, Pearl Kulinski, Mary Landis, William Moser, Virginia E. O'Connell, William O. Polley, Rosemary Pulito, Chester Sobush, William Stead, Shirley Whittow, and Bernard Wood, Plaintiffs-Appellants-Petitioners, v. Milwaukee County, Milwaukee County Employees Retirement System, and Milwaukee County Pension Board, Defendants-Respondents.
    Supreme Court

      No. 01-1970.

      Oral argument January 16, 2003.

    Decided May 1, 2003.

    2003 WI 28
    (Also reported in 660 N.W.2d 656.)

      For the plaintiffs-appellants-petitioners there were briefs by Lynne A. Layber, Milwaukee, and oral argument by Lynne A. Layber.

    For the defendants-respondents there was a brief and oral argument by John F. Jorgensen, principal assistant corporation counsel.
   DIANE S. SYKES, J.

¶ .1. The issue in this case is whether certain former Milwaukee County employees who qualified for "deferred vested pensions" at the time they terminated their county employment have "retired from the county" within the meaning of the Milwaukee County Code for purposes of receiving a military service pension credit. Applying the plain language of the applicable ordinance provisions, we conclude that the former employees were "retired from the county" and are therefore eligible for the military service pension credit.

¶ 2. In November of 1996, the Milwaukee County Board enacted an ordinance granting a military service pension credit to certain members of the Milwaukee County Employees' Retirement System ("retirement system") who had served in the military during specified timeframes. The ordinance took effect, prospectively only, on January 1,1997, and applies to "all retirees who retired from the county before July 1,1985." Milwaukee County General Ordinances § 201.24(2.10).

¶ 3. After applying for the credit and being denied, 25 former Milwaukee County employees filed this action in Milwaukee County Circuit Court requesting a declaration of entitlement to the military service pension credit. Each former employee is a member of the retirement system, left county employment before July 1, 1985, with a "deferred vested pension," and later (although still prior to July 1, 1985) began receiving payment on the deferred vested pension. See M.C.G.O. §§ 201.24(4.5) and 201.24(2.5).

¶ 4. Judge David A. Hansher, Milwaukee County Circuit Court, concluded that the plaintiffs were not eligible for the military service credit, and the court of appeals affirmed. Bruno v. Milwaukee County, No. 01-1970, unpublished slip. op. (Wis. Ct. App. Apr. 9, 2002). Both the circuit court and the court of appeals concluded that in order to have "retired from the county" for purposes of the military service credit, a retirement system member must have been old enough to immediately begin drawing a pension at the time he or she left county employment. According to this interpretation of the applicable ordinance provisions, retirement system members who left county service with deferred vested pensions had not "retired from the county."

¶ 5. We granted the retirees' petition for review, and now reverse. Although none of these retirement system members began collecting a pension immediately upon leaving county employment, each one qualified for a deferred vested pension at the time of termination, and this meets the definition of "retirement" in the Milwaukee County Code. See M.C.G.O § 201.24(2.19). Retirement system members who leave county employment with deferred vested pensions have "retired from the county" for purposes of the military service credit.

¶ 6. This case involves the interpretation and application of an ordinance to an undisputed set of facts. "The rules for the construction of statutes and municipal ordinances are the same." County of Columbia v. Bylewski, 94 Wis. 2d 153, 169 n.7, 288 N.W.2d 129 (1980). The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo. County of Adams v. Romeo, 191 Wis. 2d 379, 383, 528 N.W.2d 418 (1995).

¶ 7. We begin with the language of the applicable ordinances. "If the plain meaning of the [ordinance] is clear, a court need not look to rules of statutory construction or other extrinsic aids. Instead, a court should simply apply the clear meaning of the [ordinance] to the facts before it." UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-282, 548 N.W.2d 57 (1996) (internal citations omitted).

¶ 8. We have "long recognized that when a court construes an ordinance or statute, words must be given their common meaning." Weber v. Town of Saukville, 209 Wis. 2d 214, 224, 562 N.W.2d 412 (1997) (citing State v. Martin, 162 Wis. 2d 883, 904, 470 N.W.2d 900 (1991) (citations omitted in original)). It is also "well established that technical words or phrases with a peculiar meaning in the law must be construed according to such meaning." Id.

¶ 9. The Milwaukee County Code establishes several categories of retirement and sets forth the various requirements a retirement system member must meet in order to qualify for a pension. See generally M.C.G.O. § 201.24(4.1) ("normal retirement"); § 201.24(4.2) ("early retirement"); § 201.24(4.3) ("accidental disability retirement"); § 201.24(4.4) ("ordinary disability retirement"); and § 201.24(4.5) ("deferred vested retirement").

¶ 10. Section 201.24(4.5) sets forth the requirements for "deferred vested retirement," also referred to in the code as a "deferred vested pension." See M.C.G.O. § 201.24(4.1). Section 201.24(2.19) defines "retirement":

Retirement shall mean termination of employment after a member has fulfilled all requirements for a pension. Retirement shall be considered as commencing on the day immediately following a member's last day of employment (or authorized leave of absence, if later), and terminating upon date of death of retiree or beneficiary under option.

M.C.G.O. § 201.24(2.19).

¶ 11. Section 201.24(2.10) states that the military service pension credit "shall apply to all retirees who retired from the county before July 1, 1985." M.C.G.O. § 201.24(2.10). It is undisputed that each of the retirement system members here met all of the requirements for a deferred vested pension and terminated county service prior to July 1, 1985.

¶ 12. Whether these retirement system members are entitled to receive the military service pension credit provided for in section 201.24(2.10) of the Milwaukee County Code depends upon whether they "retired from the county" within the meaning of that section and the related definitional sections of the code. As noted above, "retirement" is a defined term in the code: it means "termination of employment after a member has fulfilled all requirements for a pension." M.C.G.O. § 201.24(2.19). A "deferred vested pension" is a "pension" under the code. M.C.G.O. §§ 201.24(2.6) and (4.5). Indeed, section 201.24(4.5), which sets forth the criteria for deferred vested pensions, is entitled "Deferred vested retirement." M.C.G.O. § 201.24(4.5) (emphasis added). The code's definition of "retirement" also states that retirement commences "on the day immediately following a member's last day of employment." M.C.G.O. § 201.24(2.19).

¶ 13. These terms, phrases, and definitions are not ambiguous. A retirement system member who leaves county service having qualified for a deferred vested pension has "retired from the county" within the meaning of the code. Although an employee leaving county service with a deferred vested pension does not immediately begin to collect payments on that pension, he or she has "fulfilled all requirements for a pension" at the time of termination, which satisfies the definition of "retirement" in the code.

¶ 14. Milwaukee County argues that in order to be "retired from the county" a retirement system member must leave county service and begin drawing pension payments immediately. This interpretation adds words to the definition of "retirement." The code does not define "retirement" as "termination of employment after a member has fulfilled all requirements for a pension and is old enough to immediately begin receiving pension payments." It defines "retirement" as "termination of employment after a member has fulfilled all requirements for a pension." The definition does not mention receipt of pension payments.

¶ 15. The ordinance does not confine the term "retirement" to terminations of county service with immediate eligibility to begin drawing a pension. It requires only that the terminating employee has fulfilled the requirements for a pension. Each of the employees in this case terminated employment after having fulfilled all requirements for a pension — a "deferred vested pension." M.C.G.O. §§ 201.24(2.19) and 201.24(4.5). Because "Retirement shall be considered as commencing on the day immediately following a member's last day of employment," M.C.G.O. § 201.24(2.19), these deferred vested retirement system members "retired from the county before July 1, 1985" for purposes of the military service credit. Payment of the deferred vested pension did not begin until each member's "normal retirement date," although this, too, occurred before July 1, 1985, for each of these retirement system members.

¶ 16. The Milwaukee County ordinance extending military service pension credit to all those who "retired from the county before July 1, 1985" is clear and unambiguous, as is the definition of "retirement" in the Milwaukee County Code. Together, they plainly state that all those who retired from the county before that date — that is, terminated county employment having "fulfilled all the requirements for a pension" — are entitled to the credit. The county's interpretation of the applicable ordinance provisions ignores their plain language and adds words that are not there. Because these retirement system members terminated county employment before July 1, 1985 and had fulfilled all the requirements for a deferred vested pension at the time of termination, they are entitled to the military service pension credit provided for in M.C.G.O. § 201.24(2.10).

¶ 17. In closing, a few words about the concurrence. The concurrence concludes that the ordinance is ambiguous because we have interpreted its "plain meaning" differently than the lower courts did, and worries that competing "plain meaning" interpretations "undermine! ] the integrity of the appellate process." Concurrence, ¶ 32. The concurrence refers to the "oft-quoted maxim" of statutory ambiguity that states that a statute is considered ambiguous "when it is capable of being understood in two or more different senses by reasonably well-informed persons." Concurrence, ¶ 31. The concurrence then suggests that "[i]f judges and courts are considered reasonably well-informed persons, then under this ... rule of construction when they differ about an ordinance's 'plain' meaning, the ordinance should generally be considered ambiguous." Concurrence, ¶ 32.

¶ 18. This distorts the test for ambiguity by placing the focus on the reasonableness of the person offering the interpretation rather than the reasonableness of the interpretation being offered. Of course judges qualify as "reasonably well-informed persons." So do lawyers. But a disagreement between judges and lawyers about the plain meaning of a statute or ordinance does not always or even generally mean that the statute or ordinance is ambiguous. If it did, then no statute or ordinance disputed in the courts could ever be given its plain meaning, because all statutory or ordinance language would be considered ambiguous. This is not the law.

¶ 19. The ambiguity maxim or canon of construction invoked by the concurrence is more completely stated as follows:

Test of Ambiguity
This court has consistently used the same test for ambiguity:
"A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses." State ex rel. Neelen v. Lucas (1964), 24 Wis. 2d 262, 267, 128 N.W.2d 425, citing State ex rel. West Allis v. Dieringer (1957), 275 Wis. 208, 218, 81 N.W. 2d 533.
Whenever a case such as this one is before the court, however, it is obvious that people disagree as to the meaning to be given to a statute. This alone cannot be controlling. The court should look to the language of the statute itself to determine if'well-informed persons' should have become confused.
.. In construing or 'interpreting' a statute the court is not at liberty to disregard the plain, clear words of the statute." State v. Pratt (1967), 36 Wis. 2d 312, 317, 153 N.W.2d 18.

Nat'l Amusement Co. v. Dep't of Revenue, 41 Wis. 2d 261, 267-68, 163 N.W.2d 625 (1969) (emphasis in original). See also Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585, 592, 527 N.W.2d 301 (1995); State v. Lossman, 118 Wis. 2d 526, 534-35, 348 N.W.2d 159 (1984); Standard Theatres v. State Dep't of Transp., 118 Wis. 2d 730, 740, 349 N.W.2d 661 (1984); Town of Ringle v. Marathon County, 104 Wis. 2d 297, 308, 311 N.W.2d 595 (1981).

¶ 20. Accordingly, the test for statutory ambiguity focuses first (as it must) on the language of the statute, not the competing interpretations of it offered by lawyers or judges. The statutory language is given its common and ordinary meaning, and technical or specially-defined terms are given the technical or special definitional meaning assigned to them. Weber, 209 Wis. 2d at 224. If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.

¶ 21. The presence of different "plain meaning" interpretations by lawyers or judges does not authorize the court to skip this process, assume ambiguity, and begin searching for extrinsic sources of legislative intent. Rather, as the cases cited above hold, the court examines the statutory or ordinance language to determine whether " 'well-informed persons' should have become confused," that is, whether the statutory or ordinance language reasonably gives rise to different meanings. Nat'l Amusement Co., 41 Wis. 2d at 267. A statute is ambiguous if it is susceptible of two or more "equally sensible interpretations." State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 122, 561 N.W.2d 729 (1997).

¶ 22. Thus, the court examines the reasonableness of the interpretation, not the general reputation for reasonableness of the person offering the interpretation. Only if there is more than one reasonable interpretation (not more than one interpretation offered by persons generally regarded as reasonable), is there ambiguity. It is the interpretation's reasonableness that counts, not the interpreter's status as a reasonable person.

¶ 23. Here, as we have noted, the circuit court apparently overlooked the ordinance's definition of "retirement" in determining whether these employees were "retired from the county" within the meaning of the military service pension credit. The court of appeals cited but did not apply the definition of "retirement," instead referencing a dictionary definition (without quotation or explanation) that contradicted the conclusion that the court reached. In addition, as we have noted, the interpretation adopted by both lower courts adds words to the ordinance, as the concurrence also recognizes, concurrence, ¶ 34, and thus is not a "plain meaning" interpretation. This, therefore, is not a case of conflicting, reasonable "plain meaning" interpretations; it is a case of lower court error.

¶ 24. The concurrence also concludes that the ordinance is ambiguous because the phrase "from the county" is redundant or "unexplained surplusage," inasmuch as this is a county retirement ordinance applicable only to county employees. Concurrence, ¶ 35. While we attempt to construe statutes and ordinances to avoid surplusages, a statutory redundancy or "unexplained surplusage" does not necessarily require a declaration of ambiguity. The phrase "from the county" may have been unnecessary here (because this is a county retirement ordinance), but that does not render either the definition of "retirement" or the military service pension provision ambiguous. The phrase makes explicit what is already implicit in the ordinance, concurrence, ¶ 35; that is, it reinforces its meaning rather than creates ambiguity. That this reinforcement may have been unnecessary does not require us to search for some alternate meaning other than the obvious.

¶ 25. It is odd that the concurrence would suggest that we are reading the ordinance as if it said "retired from the county from the county." Concurrence, ¶ 36. Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity. The concurrence adopts the latter construct and takes it to a new level, manufacturing ambiguity where it does not exist.

¶ 26. A phrase that makes explicit that which is implicit (i.e., states the obvious) is not the same as a phrase that is repeated twice in a row. If it were, the concurrence might be correct in its assertion that there would be a "need to delete a few words for clarity." Concurrence, ¶ 38. As it is, the phrase "from the county" is not in fact repeated twice in this ordinance, and our straightforward "plain meaning" interpretation does not import such a repetition into the ordinance, so there is no need to delete anything in order to arrive at clarity.

¶ 27. For example, if my law clerk gets up from his desk at around lunchtime and says, "I am going out to eat," I readily understand this to mean he is going out to eat lunch. If instead he says, "I am going out to eat lunch," his statement is not rendered ambiguous because he has explicitly (if unnecessarily) identified the meal he is about to eat. The word "lunch" may be surplusage, but there is no ambiguity and certainly no need to look for some alternate meaning or explanation for his inclusion of the word "lunch" where it is otherwise unnecessary. He is only making explicit what is implicit in the shorter statement. A "plain meaning" interpretation of "I am going out to eat lunch" does not "in essence" read "I am going out to eat lunch lunch," as suggested by the concurrence, merely because "lunch" was already implicit. Concurrence, ¶ 36.

¶ 28. In short, the applicable ordinance provisions are unambiguous. These former county employees left county service having qualified for deferred vested pensions and within the applicable time frame specified in the military service pension credit. Deferred vested pensions are "pensions" within the meaning of the code. This meets the definition of "retirement" in the code. Accordingly, the former employees are "retired from the county" within the meaning of the military service pension credit, and are entitled to receive it.

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

¶ 29. JON E WILCOX, J., did not participate.

ANN WALSH BRADLEY, J.

¶ 30. (concurring). I write separately to express my disagreement with the majority opinion's reliance on the plain meaning canon to interpret this Milwaukee County ordinance. I find the ordinance to be ambiguous. Nevertheless, I concur in the majority's result because I find it to be the more reasonable interpretation in light of the language and purpose of the ordinance.

¶ 31. The majority begins and ends its analysis by relying on the plain meaning maxim of statutory/ ordinance construction: "if the plain meaning of the [ordinance] is clear, a court need not look to rules of statutory construction or other extrinsic aids." Majority op., ¶¶ 7,16. What the majority fails to acknowledge in this cursory approach is another oft-quoted maxim of statutory/ordinance interpretation: a statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 222, 550 N.W.2d 96 (1996); Ervin v. City of Kenosha, 159 Wis. 2d 464, 472, 464 N.W.2d 654 (1991); State v. Caldwell, 154 Wis. 2d 683, 687, 454 N.W.2d 13 (Ct. App. 1990).

¶ 32. Here, the circuit court and all three judges of the court of appeals, examining the same language, also found the meaning of this ordinance to be "plain" —but came to the opposite interpretation of what the majority today deems to be "plain." If judges and courts are considered reasonably well-informed persons, then under this latter rule of construction when they differ about an ordinance's "plain" meaning, the ordinance should generally be considered ambiguous. The tug of war between courts over opposite plain meaning constructions undermines the integrity of the appellate process.

¶ 33. Our task is to discern the intent of the legislature. Here, I find the language of the ordinance to be ambiguous, not only because of the opposite plain meaning interpretations but also because I conclude that both interpretations are reasonable.

¶ 34. The phrase in the ordinance that is the subject of interpretation is: "shall apply to all retirees who retire from the county." The circuit court and the judges of the court of appeals reasonably interpreted it to mean that it applies to members who leave county service and begin immediately drawing pension payments. The majority correctly notes that such an interpretation adds words to the definition of "retirement."

¶ 35. The majority's interpretation, however, has its own problems. The majority sets forth the phrase in question, "shall apply to all retirees who retire from the county," but then only focuses on the second part of the phrase. Since this is a county retirement plan, the word "retirees" implicitly means that it applies to those who retire from the county. Thus, the additional words "from the county" is unexplained surplusage. When an ordinance is redundant or contains surplusage, it is not "clear and unambiguous."

¶ 36. The majority explains away its construction which incorporates surplusage as serving merely to reinforce its meaning rather than creating any ambiguity. Majority op., ¶ 24. One could argue that its construction which in essence reads "retired from the county from the county" is not reasonable. I, however, do not advance that position.

¶ 37. The majority's effort to explain away the surplusage is undermined by the fact that the "from the county" phrase was not included in parallel language within the very same section. The parallel language describes the military service credit eligibility of post-1985 retirees rather than the pre-1985 retirees at issue before us. The section reads:

The provisions of this section shall apply to all retirees who retired between July 1,1985 and January 26,1989 and to retirees who retired after January 26, 1989 and were not represented by a collective bargaining unit immediately prior to their retirement.
Effective solely with respect to pension payments payable on and after January 1,1997, the provisions of the preceding paragraph shall apply to all retirees who retired from the county before July 1, 1985.

M.C.G.O. § 201.24(2.10). It is unclear why the County Board would find it necessary to reinforce the meaning of this language by adding "from the county" in one instance and not the other. A reasonable inference is that the County Board intended that its selective use of the phrase have some meaningful effect. The majority's opinion fails to acknowledge or explain this inconsistent treatment.

¶ 38. Nevertheless, I find each interpretation to be reasonable, but not without its own problems. One interpretation is burdened with the need to add a few words for clarity and the other suffers from the need to delete a few words for clarity.

¶ 39. Although I conclude that the ordinance is ambiguous, this does not mean that the language of the ordinance does not favor one interpretation over the other. For the reasons set forth in the majority opinion, I agree that the language of the ordinance supports the petitioners' interpretation more strongly than the county's interpretation.

¶ 40. In addition, given the obvious purpose of the ordinance to recognize the valuable military service provided by county employees, there is no apparent reason why the county board would single out and exclude deferred vested pensioners from this recognition. These factors lead to the conclusion that the ordinance was intended to make the petitioners eligible for the military service credit. Accordingly, I concur.

¶ 41. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this concurrence.

       The credit applies only to retirees who were employed by the county for a certain number of years, and who had also performed military service during the period January 1, 1938, through December 31, 1974. See Milwaukee County General Ordinances § 201.24(2.10).

       In some cases, a member is represented by a spouse who is receiving survivor benefits.

       "Pension" is defined as "a series of periodic payments which are payable to a person who is entitled to receive benefits under the ordinance." M.C.G.O. § 201.24(2.6).

       "A member shall be eligible for a deferred vested pension if his employment is terminated for any cause, other than fault or delinquency on his part, provided that he elects not to withdraw any part of his membership account and that his pension at age sixty (60) is at least ten dollars ($10.00) per month." M.C.G.O. § 201.24(4.5). The ordinance sets forth some exceptions to its general applicability, but none of them are relevant to this case.

       The court of appeals cited Webster's Third New Int'l Dictionary as support for its conclusion that "retirement" requires an employee to leave employment and immediately begin collecting a pension. Bruno v. Milwaukee County, No. 01-1970, unpublished slip op. at ¶ 3 (Wis. Ct. App. Apr. 9, 2002) (citing Webster's Third New Int'l Dictionary at 1939 (1998)). However, the court of appeals failed to supply any definition from Webster's, or any other dictionary definition for that matter. In fact, the Webster's definition of the verb "retire" supports the retirees, not the county: "retire" means "to withdraw from office, public station, business, occupation, or active duty." Webster's at 1939. Webster's defines "retirement" as "withdrawal from office, active service, or business." Id. Though our decision here rests on an application of the definition in the code itself (because "retirement" is a defined term in the code), we can find nothing in the dictionary definition of "retire" or "retirement" that would support the county's or the court of appeals' interpretation.

       The ordinance provides that upon timely application, "[playment of a deferred vested pension shall commence as of the member's normal retirement date" and shall continue until "the date of death of the retired member." M.C.G.O. § 201.24(4.5).
      "Normal retirement date shall be the first day of the month following the date on which the member reaches the minimum ages for normal retirement." M.C.G.O. § 201.24(2.17).
      "Normal retirement age shall be fifty-seven (57) for deputy sheriffs and sixty (60) for all other members." M.C.G.O. § 201.24(2.18).
      Each of these retirement system members reached the "normal retirement age" and began receiving payment for their deferred vested pensions prior to July 1, 1985.

       Wisconsin courts do not "torture ordinary words until they confess to ambiguity." W. States Ins. Co. v. Wis. Wholesale Tire, Inc., 184 F.3d 699, 702 (7th Cir. 1999).

       The concurrence concludes by referring to the "obvious purpose of the ordinance," and asserts that "there is no apparent reason" for the exclusion of deferred vested pensioners from the military service credit. Concurrence, ¶ 40. The concurrence also concludes that "the language of the ordinance supports the petitioners' interpretation more strongly than the county's interpretation." Concurrence, ¶ 39. If the "obvious purpose" and the "language of the ordinance" support one interpretation, and there is "no apparent reason" for any alternate interpretation, then the ordinance is unambiguous.