source: Caselaw Access Project

author: CURLEY, J.

license: Public Domain

text:
    Milwaukee Metropolitan Sewerage District, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.

    Court of Appeals

      No. 02-2961.

      Submitted on briefs August 5, 2003.—

      Decided September 30, 2003.

    2003 WI App 209
    (Also reported in 671 N.W.2d 346.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. McCabe and James H. Petersen, of the Milwaukee Metropolitan Sewerage District.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Susan E. happen, assistant city attorney.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review granted 2-24-04.

   CURLEY, J.

¶ 1. Milwaukee Metropolitan Sewerage District appeals the grant of summary judgment to the City of Milwaukee in its suit claiming that the City engaged in negligence and created a nuisance. The District seeks to recoup $700,000, the cost of rebuilding a metropolitan interceptor sewer that it contends was destroyed when a City water main collapsed. The District argues that the trial court erred: (1) in concluding that the City was entitled to either actual or constructive notice before it could be held liable for creating a nuisance; (2) in finding that no notice was given to the City concerning the condition of its water main; (3) in finding that the City was immune from suit under Wis. Stat. § 893.80(4) (2001-02); (4) in ruling that, at trial, the District could not avail itself of the res ipsa loquitor doctrine; and (5) in awarding the City costs for its photocopies. Because the District's allegations form the basis for a claim of private nuisance, no notice was required, and Wis. Stat. § 893.80(4) does not shield the City from liability for nuisances. We also conclude that the trial court prematurely decided whether the evidence supported the use of the res ipsa loquitor doctrine at trial and mistakenly permitted photocopying costs to be charged against the City. Therefore, we reverse.

I. Background.

¶ 2. Early in the morning of December 9, 1999, a City of Milwaukee water main, located under the roadway near the intersection of North 40th Street and West Bluemound Road, collapsed. The authorities were first alerted to the collapse when an area resident noticed two to three feet of water rushing into her basement. Directly below the water main, but twenty feet deeper, was a District metropolitan interceptor sewer that ran parallel to the water main. The sewer also collapsed, but the District contends that the sewer's cave-in happened as a direct result of the water main collapse. The foundation for the District's theory is the statement of a District employee who claimed to have seen the sewer functioning twelve hours after the water main broke, proof that the water main collapsed first causing the sewer to collapse later. The District sued the City to recoup its losses in rebuilding the sewer.

¶ 3. The District's complaint alleged negligence, nuisance and unjust enrichment. In its complaint, the District stated that the City was negligent because it failed "to properly maintain and operate the water main ... in that it did not properly monitor the volume of water through the pipeline, did not properly inspect the pipeline, did not notice unusual water flows ... and did not properly repair/replace the City's water main in the vicinity. .. ." With respect to the nuisance claim, the District alleged that the City "permitted a nuisance condition to exist, to wit: the existence of a broken water main, which nuisance caused the collapse of the District's MIS."

¶ 4. The City brought a summary judgment motion. In its motion, the City reasoned that because: (1) it had no notice of the water main break and notice was required; (2) it had immunity for both the negligence and nuisance claims pursuant to Wis. Stat. § 893.80(4); and (3) in any event, the doctrine of res ipsa loquitor did not apply to the facts presented here, it was entitled to summary judgment. The trial court agreed. A dispute also arose concerning the City's photocopying costs. The trial court ruled that the City's photocopying costs were properly taxed as costs to the District.

II. Analysis.

¶ 5. In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under Wis. Stat. § 802.08. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987); Wright v. Hasley, 86 Wis. 2d 572, 579, 273 N.W.2d 319 (1979).

¶ 6. In Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983), we set out the methodology to be applied in evaluating a summary judgment motion.

Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint... states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense [that] would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.
Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment.

Id. (citations omitted).

A. Notice is not a requirement for a nuisance claim of the type alleged.

¶ 7. The trial court ruled that the District's nuisance claim failed because the City had neither actual nor constructive notice of the broken water main. The District submits that the trial court "improperly en-grafted a notice requirement upon a claim of 'nuisance by invasion of property interests.'" We agree.

¶ 8. The brief submitted in opposition to the City's summary judgment motion included a report of an expert witness, hired by the District, who opined that the water main in question had been leaking for between .8 and 2.6 years. The District also documented that the broken water main, installed in 1926, was made of gray cast iron, a material no longer used by the City because of its tendency to break. The City conceded that the pipe also had no casing or gravel surrounding it, unlike the current standard for buried pipes. Further, this pipe had a history of breaking; it had broken twice before in the general vicinity of the break that occurred here. In 1992-93, the City installed a larger pipe, lower in the ground, at the intersection near where the break occurred. The District theorized that this stressed the eight-inch water main and eventually caused it to break. The District also filed records that indicated that, after the 1992-93 construction, the City intended to inspect the water mains in the area, but never did so because it ceased pressure testing as a cost-cutting measure. The District noted that the City's current maintenance program only consists of fixing and replacing water mains as they break, and it does no testing of any kind to identify weakened pipes, despite the fact that many of the water mains are extremely old.

¶ 9. In Physicians Plus Insurance Corp. v. Midwest Mutual Insurance Co., 2002 WI 80, ¶ 21, 254 Wis. 2d 77, 646 N.W.2d 777, the supreme court set forth the distinctions between a public and a private nuisance.

In Schiro, this court quoted with approval the following language defining a private nuisance: "As commonly used, [nuisance] connotes a condition or activity which unduly interferes with the use of land or of a public place. Conduct which interferes solely with the use of a relatively small area of private land is tortious but not criminal and is called a private nuisance."

Id., ¶ 21, n.14 (citing Schiro v. Oriental Realty Co., 272 Wis. 537, 546, 76 N.W.2d 355 (1956)). "A public nuisance is a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community." Id., ¶ 21 (footnote omitted).

¶ 10. The Restatement (Second) of Torts § 82 IB (1979), defines a public nuisance and lists factors to consider:

(1) A public nuisance is an unreasonable interference with a right common to the general public.
(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has the reason to know, has a significant effect upon the public right.

Thus, a nuisance can be either private or public. The trial court expressed the opinion that the nuisance law is confusing; the trial court's confusion is understandable. In Physicians Plus, the supreme court acknowledged that considerable confusion exists in the law over the meaning of a nuisance:

As this court has recognized, nuisance is a "slippery term," and often the best way to determine whether a nuisance exists is by determining whether or not there is liability for the activity or condition. Wisconsin Power & Light Co. v. Columbia County, 3 Wis. 2d 1, 10, 87 N.W.2d 279 (1958); see also Schiro v. Oriental Realty Co., 272 Wis. 537, 545, 76 N.W.2d 355 (1956) ("It would be difficult to find a term which has been the subject of more mystifying confusion of utterance in the reports and texts.").

254 Wis. 2d 77, ¶ 20 n.13.

¶ 11. Despite its uncertainty, the trial court ruled that the holding in Physicians Plus required that the City have either actual or constructive notice of the nuisance before it could be sued. In doing so, the trial court failed to distinguish between a nuisance action like that in Physicians Plus, where the City did not create the nuisance but negligently failed to trim trees that obscured a stop sign causing an accident, from a nuisance suit like the one alleged here, where the District claims the City's actions created the nuisance when it failed to monitor an old water pipe susceptible to breakage. In the latter, no notice is required; in the former, notice is essential to find the City liable.

¶ 12. The reasoning behind this difference is simple — in a nuisance claim, like that in Physicians Plus, the governmental bodies that were sued did not create the nuisance, they merely failed to take action to correct it within a reasonable period of time. Thus, before the governmental bodies could be held liable for a condition not of their own making, they had to have actual or constructive notice of the condition or activity. See Brown v. Milwaukee Terminal Railway Co., 199 Wis. 575, 227 N.W. 385 (1929) (the seminal case regarding this proposition). Here, however, the City is accused of actually creating the alleged nuisance — placing and then leaving unmonitored the old water pipe that eventually burst and destroyed the sewer. Regardless of the type, public or private, notice is a necessary component of a nuisance claim only when the party being sued did not create the nuisance.

¶ 13. The supreme court in Physicians Plus acknowledged this importance distinction:

Brown distinguishes liability for maintaining a public nuisance from liability for creating a public nuisance, by requiring actual or constructive notice in maintenance of public nuisance cases. Based on this distinction, we interpret Brown as essentially dividing public nuisance cases into two classes. The first class, maintenance of a public nuisance, bases liability on the defendant's failure to abate a public nuisance of which the defendant had actual or constructive notice. The defendant did not affirmatively create the nuisance, so liability is necessarily predicated on the defendant's notice of the hazardous condition. ... In contrast, the second class of cases focuses on the defendant's creation of the public nuisance and likewise does not require proof that the defendant had actual or constructive notice of the hazardous condition.

254 Wis. 2d 77, ¶ 24 n.19.

¶ 14. Here, the District's allegations track those of a private nuisance claim not requiring notice. The broken water main was a City-made condition which unduly interfered with the District's sewer.

¶ 15. Additional support for this conclusion, that no notice is required in a private nuisance suit of this species, comes from the Wisconsin Jury Instructions. Neither Wisconsin Jury Instruction dealing with private nuisances mentions a notice requirement. Wis JI — Civil 1920 discusses nuisances in general. Wis JI— Civil 1922 is specifically geared to municipal nuisances. It provides:

You are instructed that a municipality must so conduct and operate its business so as not to create or maintain a nuisance. A municipality, in the conduct of its business, is held to the same duty with regard to nuisances as any owner of private property or any operator of a private business.
You are further instructed that legislative authority granted to a municipality to operate a business . . . does not permit such municipality to so operate such business so as to create or maintain a nuisance.

Wis JI — CrviL 1922.

¶ 16. The absence of any reference to a notice requirement in the instruction strongly suggests that in many instances, no notice is required. We are satisfied that no notice was required under the circumstances alleged here.

B. The City has no immunity under Wis. Stat. § 893.80(4) to create or maintain a nuisance.

¶ 17. Wisconsin Stat. § 893.80(4) limits suits brought against governmental bodies. It states:

(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judiciál or quasi-judicial functions.

¶ 18. The City contends that it has immunity from the District's suit, pursuant to Wis. Stat. § 893.80(4), because its employees were engaged in quasi-judicial or quasi-legislative acts in the course of overseeing the water main. However, this argument was soundly rejected in Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986). In that case, this court stated:

Neither sec. 893.80(4) nor the common law immunity that predated its enactment empowered a public body to create or maintain a nuisance. See Winchell v. City of Waukesha, 110 Wis. 101, 109, 85 N.W.2d 668, 670 (1901)....
... The law of governmental immunity as it relates to private nuisance suits remains unchanged since the Winchell decision. The creation and maintenance of private nuisances are simply not recognized as legislative acts subject to protection under sec. 893.80(34).

Id. at 438-40.

¶ 19. In fact, this holding dates as far back as 1872, when our supreme court determined that municipalities could be sued for maintaining a nuisance:

The general rule of law is that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses, and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible, in any case in which, under like circumstances, an action could be maintained against an individual.

Harper v. City of Milwaukee, 30 Wis. 365, 372 (1872).

¶ 20. The rule was recently reaffirmed in Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), although there the plaintiffs did not prevail for other reasons. Menick sued the City of Menasha for damages resulting from the City's sewer flooding Menick's basement on two separate occasions. This court reasoned:

While we conclude that the City cannot claim immunity against the assertion of a private nuisance action, we agree that § 844.01, Stats., does not confer a statutory basis for this claim. Furthermore, while there exists a cause of action in private nuisance, we conclude that Menick's failure to offer an expert's opinion as to the legal cause of the flooding defeats her claim.

Menick, 200 Wis. 2d at 744-45. While Menick dealt with city sewers, with respect to the immunity issue, we can discern no significant legal differences between a city's operation of its water works and that of its sewers.

¶ 21. The City also insists that it is immune under Wis. Stat. § 893.80(4) because the acts alleged to have occurred here, which resulted in the creation of the nuisance, were all negligence-based and the City is immunized against the negligent acts of its employees. The City is wrong.

¶ 22. As we have explained, a city has no immunity for its creation of a nuisance. Further, a nuisance may be proved by a showing of negligent conduct:

. Private nuisance is a term applied to an unreasonable interference with the interests of an individual in the use or enjoyment of land. The interference may result from negligent conduct. Wisconsin Power & Light Co. v. Columbia County (1958), 3 Wis. (2d) 1, 10, 87 N. W. (2d) 279; Schiro v. Oriental Realty Co. (1956), 272 Wis. 537, 545, 76 N. W. (2d) 355, 73 A.L.R.2d 1368. See Restatement, 4 Torts, p. 221, ch. 40, and Prosser, Law of Torts (2d ed.), pp. 389-391, sec. 70 (Hornbook, 2d ed. 1955).

Hoene v. City of Milwaukee, 17 Wis. 2d 209, 214, 116 N.W.2d 112 (1962). Therefore, while a cause of action alleging negligence is immunized, a nuisance created by negligent conduct is not protected by the governmental immunity statute.

¶ 23. The City also suggests that public policy should bar the Districts nuisance suit. The law is well settled that nuisance actions can be brought against municipalities. Moreover, some jurisdictions have held cities strictly liable for damages caused by water mains. See, e.g., Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964).

It is neither just nor reasonable that the city engaged in a propriety activity can deliberately and intentionally plan to leave a watermain underground beyond inspection and maintenance until a break occurs and escape liability. A city or corporation so operating knows that eventually a break will occur, water will escape and in all probability flow onto the premises of another with resulting damage. We do not ordinarily think of water-mains as being extra-hazardous but when such a practice is followed, they become "inherently dangerous and likely to damage the neighbor's property" within the meaning of Pumphrey v. J.A. Jones Construction Co., [94 N.W.2d 737 (Iowa 1959)].

Lubin, 131 N.W.2d at 390-91.

¶ 24. While no Wisconsin case deals with an aging water main, the circumstances here are similar to those found in Tarzia v. Town of Hingham, 622 N.E.2d 1372, 1375-76 (Mass. App. Ct. 1993). There, the Massachusetts appellate court reversed a trial court that found a landowner, whose land was damaged by the flooding of a pond, could not recover from the municipality that controlled the dam, its control gates and sluices located on the pond. Id. at 1376. While affirming the trial court's determination that immunity existed for the negligence cause of action, the appellate court ruled that the town had no immunity for a nuisance action grounded in the town's failure to monitor the dam and control the dam's gates and the sluices. Id. at 1374-75. The court, referencing the Restatement (Second) of Torts § 840, ruled that the town had no immunity for the nuisance action because "[a]n artificial structure that was harmless when created but that has become dangerous through natural decay is not a natural condition." Tarzia, 622 N.E.2d at 1375 (citation omitted).

¶ 25. For the reasons stated, the City's attempt to avoid the District's nuisance suit through immunity under Wis. Stat. § 893.80(4) fails.

C. The trial court's ruling on the doctrine of res ipsa loquitor was premature.

¶ 26. The District submits that the trial court should have waited until all the evidence was admitted at a trial before ruling on whether the jury could be instructed on the doctrine of res ipsa loquitor. The City urges us to affirm the trial court's decision because the City did not have exclusive control of the area surrounding its water main. We agree that the ruling was premature.

¶ 27. The doctrine of res ipsa loquitur is an evi-dentiary rule that ordinarily arises at trial when determining the instructions the trial court should give to the jury. Res ipsa loquitur is a rule of circumstantial evidence that permits a fact finder to infer a defendants negligence from the mere occurrence of the event. See Lambrecht v. Estate of Kacmarczyk, 2001 WI 25, 3, 241 Wis. 2d 804, 623 N.W.2d 751. Two conditions must be present before the doctrine of res ipsa loquitur is applicable. [T]he event in question must be of a kind which does not ordinarily occur in the absence of negligence and the agency of instrumentality causing the harm must have been within [the] exclusive control of the defendant. Wis JICivil 1145, cmt. The jury is free to accept or reject this permissible inference.

¶ 28. The District advances that the trial court should hear all the evidence before concluding whether the doctrine is applicable. This is a reasonable request. Further, while we could find no Wisconsin case that applied the doctrine to water mains, other jurisdictions have done so. See, e.g., Quigley v. Village of Hibbing, 129 N.W.2d 765 (Minn. 1964) (We conclude that upon the record before us the prerequisites for the application of the doctrine of res ipsa loquitur appear as a matter of law, and that the plaintiffs were entitled to have their case submitted to the jury with appropriate instructions on this theory.). Thus, depending on the proffered evidence, at the conclusion of the case, the trial court can decide whether the jury instruction is appropriate.

D. Photocopying expenses are not a taxable cost.

¶ 29. Finally, we address the District's contention that the trial court erred in awarding the City photocopying expenses. We recognize that our decision overturns the trial court's grant of summary judgment, thus rendering the earlier costs a nullity, but the issue may well occur again, so we decide it. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("[T]o further judicial economy and guide trial courts and litigants, we may consider additional issues [that] have been fully briefed and are likely to recur.").

¶ 30. After prevailing on the motion for summary judgment, the City submitted a bill of costs to the clerk of the circuit court. The District took exception to paying for a "mediation service fee," listed as a taxable cost. Ultimately, judgment was entered without the mediation fee. The City then filed an amended judgment seeking to include the "mediation service fee" and, for the first time, its photocopying costs of $1862.21. The District objected. The trial court denied the request to include the "mediation service fee," but awarded the photocopying fees. The District argues that the trial court erred for two reasons. First, the City did not follow the proper procedure, outlined in Wis. Stat. § 814.10(4), for the taxing of costs; and second, the photocopying expenses are not taxable under Wis. Stat. § 814.04, the statute listing allowable costs. We agree with the District's second argument.

¶ 31. Section 814.10(4), provides, in relevant part:

The clerk shall note on the bill all items disallowed, and all items allowed, to which objections have been made. This action may be reviewed by the court on motion of the party aggrieved made and served within 10 days after taxation. The review shall be founded on the bill of costs and the objections and proof on file in respect to the bill of costs. No objection shall be entertained on review which was not made before the clerk, except to prevent great hardship or manifest injustice.

(Emphasis added.) Thus, the proper procedure, unless unusual circumstances exist, is for the trial court to refrain from entertaining a motion for costs until the matter has been addressed by the clerk of circuit court. Here, the judgment clerk refused to assess the photocopying expenses as costs unless the trial court ordered it. Thus, the City followed the proper procedure. However, we reject the City's attempt to transmute the photocopies into certified copies by arguing that the copies were sworn public documents anil, therefore, became a type of "certified copies" that are taxable costs under the statute. Affidavits filed by government workers, like those filed here, are not certified copies.

¶ 32. Moreover, in Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), the supreme court determined that photocopy expenses are not allowable costs under the statutes.

[T]he trial court erred as a matter of law in allowing as taxable costs the expenses incurred by the plaintiffs in photocopying medical records, appraisals, and exhibits. In Ramsey v. Ellis [citation omitted], the court of appeals held that photocopies could not be taxed against a party pursuant to the costs statute. It ruled that the only statutory authorization for an award of copying costs is "for certified copies of papers and records in any public office." Wis. Stat. § 814.04(2). The court of appeals' interpretation of Wis. Stat. § 814.04(2) comports with its plain meaning and is correct.

Kleinke, 202 Wis. 2d at 148.

¶ 33. For all the reasons stated, we reverse the trial court's grant of summary judgment and remand to the trial court.

By the Court. — Judgment and order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       There are a great many factual disputes. As we explain later, we are obligated to accept the District's version for summary judgment purposes.

       The claim based on negligence was abandoned by the District on appeal. The unjust enrichment claim, seeking to recoup monies spent in fixing the City's water main, was resolved and is not before us.


author: HOOVER, PJ.

text:
    Randy Houle and Rhonda Houle, individually, and their minor son, Dustin Houle, by and through them as Guardians, Plaintiffs-Respondents, v. School District of Ashland, BCI Burke Company, LLC, EMC/Employers Mutual Company, Travelers Property Casualty and Student Assurance Services, Inc., Defendants, Bad River Band of Lake Superior Tribe of Chippewa Indians, Defendant-Appellant.
    Court of Appeals

      No. 03-0020.

      Submitted on briefs September 9, 2003.—

      Decided September 30, 2003.

    2003 WI App 214
    (Also reported in 671 N.W.2d 395.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Erick J. Arnold and Bad River Band of Lake Superior Tribe of Chippewa Indians of Odanah.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of David J. Malban of Duluth, MN.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. The Bad River Band of Lake Superior Tribe of Chippewa Indians appeals an order determining that the Rimes made whole doctrine applies to prevent its recovery of health care costs paid on behalf of tribe member Dustin Houle. See Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). Bad River contends that federal law authorizes recovery and abrogates Rimes and, in any event, the costs were not paid pursuant to an insurance contract. Because the federal law on which Bad River relies does not expressly abrogate the common law, we conclude that Rimes applies to this case and accordingly affirm the order on that basis.

Background

¶ 2. The facts are undisputed. In 1996, Bad River Band member Dustin Houle fell on a public school playground during recess. Among other injuries, he fractured his skull and lost hearing in one ear. He sued the school district and the manufacturer, distributor, and installer of the playground equipment from which he fell. Bad River was included in the suit because of a potential subrogation interest after it paid approximately $9,000 toward Dustin's medical expenses.

¶ 3. Congress enacted legislation known as the Indian Health Care Improvement Act. 25 U.S.C. §§ 1601 through 1683 (1994). The Act creates the Indian Health Service (IHS), an agency within the Department of Health and Human Services. 25 U.S.C. § 1661. Individual tribes may assume control from IHS to locally administer health services and programs in their communities. Bad River has opted for this local control and operates its own Contract Health Service office. Bad River made payments under the auspices of this legislation.

¶ 4. Dustin settled for $120,000 total recovery from the other defendants, then asked for a Rimes hearing to determine whether Bad River was entitled to payment on its subrogation claim. Following a finding that Dustin had not been made whole, the trial court interpreted certain provisions of the Act to conclude that Bad River was not entitled to subrogation because Dustin was not actually required to pay for his medical treatment. Bad River appeals.

Discussion

¶ 5. Bad River claims that federal law grants it a subrogation right against Contract Health Service patients and that Bad River may exercise this right regardless whether the patient has been made whole. Whether a party's subrogation rights limit a plaintiffs right to recovery is a question of law we review de novo. See Koffman v. Leichtfuss, 2001 WI 111, ¶ 20, 246 Wis. 2d 31, 630 N.W.2d 201. The application of the made whole doctrine to undisputed facts is also a question of law, Ruckel v. Gassner, 2002 WI 67, ¶ 13, 253 Wis. 2d 280, 646 N.W.2d 11, as is application of a statute to a set of facts. United Methodist Church v. Culver, 2000 WI App 132, ¶ 26, 237 Wis. 2d 343, 614 N.W.2d 523.

¶ 6. Subrogation is broadly defined as the substitution of one person in the place of another with reference to a legal right or claim. See 73 Am. Jur 2d Subrogation § 1 (2002); Black's Law Dictionary 1440 (7th ed. 1999). Here, for example, Bad River sought to be substituted for Dustin as the entity with the right to collect $9,000 from the defendants.

¶ 7. The subrogation doctrine is based on equitable principles. Schulte v. Frazin, 176 Wis. 2d 622, 628, 500 N.W.2d 305 (1993). "Equity does not lend itself to the application of black letter rules." Id. (citation omitted). "To resolve the issue in this case we must apply equitable principles to the facts." Id. (citation omitted).

¶ 8. There are three main types of subrogation: conventional, legal/equitable, and statutory. American Ins. Co. v. City of Milwaukee, 51 Wis. 2d 346, 351, 187 N.W.2d 142 (1971); see 73 Am. Jur 2d Subrogation § 3 (2002). Conventional subrogation is based in contract, such as an insurance policy. See 73 Am. Jur 2d Subro-gation § 4 (2002); American Ins., 51 Wis. 2d at 351. Legal subrogation, also known as equitable subrogation, derives from the doctrine of preventing unjust enrichment and it applies when a person other than a mere volunteer pays a debt that in equity and good conscience, another should pay. Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 620, 547 N.W.2d 578 (1996). It is not dependent on contract or privity, and we allow it when injustice would follow its denial. Id. Statutory subrogation, as its name suggests, arises from a legislative act' that vests a right of subrogation with a party or class of parties. See 73 Am. Jur 2d Subrogation § 3 (2002).

¶ 9. Bad River does not specifically argue that it has any one specific type of subrogation right, although it does point out that there is no insurance contract here, thus excluding conventional subrogation as the basis for its claim. Bad River appears to imply a statutory subrogation right based on 25 U.S.C. § 1621e. This section states in relevant part:

(a) Right of recovery
Except as provided in subsection (f) of this section, the United States, an Indian tribe, or a tribal organization shall have the right to recover reasonable expenses incurred ... in providing health services ... to any individual to the same extent that such individual, or any nongovernmental provider of such services, would be eligible to receive reimbursement or indemnification for such expenses if—
(1) such services had been provided by a nongovernmental provider, and
(2) such individual had been required to pay such expenses and did pay such expenses.

¶ 10. It is 25 U.S.C. § 1682, though, that literally conveys a right of subrogation to Indian Health Services. Alternatively, there may be an equitable right to subrogation because the federal rules essentially function to place Bad River in a position similar to that of an insurer when it pays for members' health care. Either theory is sufficient to allow us to assume Bad River has a subrogation right, although we question its interpretation and application of 25 U.S.C. § 1621e.

¶ 11. Even assuming Bad River has a subrogation right, subrogation is not always available as a remedy. Sometimes its application is precluded by the anti-subrogation rule, also known as the made whole doctrine and codified in Wisconsin as the Rimes doctrine. Under Rimes, one who claims subrogation rights is barred from recovery unless and until the injured party is made whole. Rimes, 106 Wis. 2d at 272.

¶ 12. While Rimes dealt with an automobile insurance company's subrogation rights, Rimes is not limited to its facts. Rimes noted that its predecessor, Garrity v. Rural Mut. Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977), observed that conventional and equitable subrogation have the same effect and accordingly both are subject to the equitable rules regarding subrogation. Rimes, 106 Wis. 2d at 270-71. The purpose of subrogation is to prevent double recovery, and this is true regardless how the subrogation arises.

¶ 13. Rimes is a common law doctrine, and the common law may be abrogated by statute. Waukesha County v. Johnson, 107 Wis. 2d 155, 162, 320 N.W.2d 1 (Ct. App. 1982). A statute does not abrogate or alter the common law unless it is so clearly expressed as to leave no doubt of the legislature's intent. Id.

¶ 14. Bad River essentially argues that Rimes has been abrogated by 25 U.S.C. §§ 1621e, 1682 and 42 C.F.R. § 36.61 and cites two lines of cases to support that argument. The cases Bad River cites, however, deal with Wis. Stat. § 49.65 and the federal ERISA rules. In both cases, we concluded that legislative language specifically abrogated Rimes. Merely drawing parallels here is inadequate; Bad River fails to demonstrate how any of the regulations it cites serve to abrogate Rimes.

¶ 15. Absent clearly expressed legislative intent, the mere grant of a subrogation right such as in 25 U.S.C. § 1682 is insufficient to abrogate the application of Rimes. Indeed, such a statute functions like a subro-gation clause in an insurance policy. In Ruckel, our supreme court held such a clause in a policy does not prevent application of the made whole doctrine, even when it contains specific language elevating the insured's subrogation right over the insured's right to be made whole. See Ruckel, 253 Wis. 2d 280, ¶ 41. The court concluded that such clauses are inequitable because they do not serve to prevent double recovery or unjust enrichment. Instead,- the insurance company had no right to recover payments it made unless the insured was made whole. Id., ¶ 40. Similarly, here 25 U.S.C. § 1682 does not specifically abrogate Rimes and therefore, like an insurance clause, simply authorizes subrogation after an IHS client has been made whole.

¶ 16. Bad River acknowledges that IHS's goal is to provide gratuitous health care to Indians. Requiring Dustin and his parents to pay Bad River when they have not fully recouped their own losses would be contrary to both this goal and equity as stated in Rimes.

By the Court. — Order affirmed.

       All references to the United States Code are to the 1994 version unless otherwise noted.

       We note that in Yukon-Kuskokwim Health Corp. v. Trust Ins. Plan, 884 F. Supp. 1360 (D. Alaska 1994), the court examined the legislative history of this section and determined it was created to allow collection against recalcitrant private insurers that refused to pay insureds eligible for federal funds, even though the insureds had paid premiums. Id. at 1365-66.

       25 U.S.C. § 1682 reads in relevant part: "Indian Health Service may seek subrogation of claims including but not bmited to . .. personal injury ... the proceeds of which shall be credited to the funds established by sections 401 and 402 of the Indian Health Care Improvement Act." This is the only section that expressly grants a right to seek subrogation, and we note that the right is granted only to IHS. Individual tribes and their organizations are not mentioned as they are in § 162 le.

       42 C.F.R. § 36.61 (1996) states that IHS is the payor of last resort for persons eligible under the Indian Health Care regulations. This section was renumbered 42 C.F.R. § 136.61 (2003).

        See, e.g., Coplien v. DHSS, 119 Wis. 2d 52, 349 N.W.2d 92 (Ct. App. 1984) (Wis. Stat. § 49.65); Ramsey Cty. Med. Ctr. v. Breault, 189 Wis. 2d 269, 525 N.W.2d 321 (Ct. App. 1994) (ERISA).

       The Employee Retirement Income Security Act of 1974.

        See Coplien, 119 Wis. 2d at 57; Ramsey Cty. Med. Ctr., 189 Wis. 2d at 277-78.


author: FINE, J.

text:
    No. 02CV007447
    No. 02CV007448
    No. 02CV007449
    No. 02CV007450
    No. 02CV007451
    U.S. Bank National Association, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent. Milwaukee Landmark Apartments, LLC, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Milwaukee City Center, LLC, Plaintiff, v. City of Milwaukee, Defendant. Metro Homes Company, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Mitchell Associates, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† David J. Barnett, Plaintiff, v. City of Milwaukee, Defendant. Bay Development Company, LLC, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Marvin A. Behnke Trust and Betty J. Behnke Trust, Plaintiffs, v. City of Milwaukee, Defendant. County Clare Ltd., Plaintiff, v. City of Milwaukee, Defendant. Great Lakes REIT, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Edward L. Kaiser as Trustee of Kaiser Land Trust, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† North Aurora Realty Holdings, Inc., Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† 105/111 LLC, Plaintiff, v. City of Milwaukee, Defendant. Yankee Hill Housing Partners, Plaintiff, v. City of Milwaukee, Defendant. Pace Development Corporation of Milwaukee, Plaintiff, v. City of Milwaukee, Defendant. Park Club Partnership, Plaintiff, v. City of Milwaukee, Defendant. Inland Real Estate Corporation, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Shady Grove Road Associates, LLC, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Respondent.† Leo R. Lichter, Plaintiff, v. City of Milwaukee, Defendant. Kohl's Food Stores, Inc., Alice M. Allen Convertible Trust, and Hall Properties Company, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent.† Harold Sampson and B.J. Sampson d/b/a Sampson Investments, and Sampson Trusts Venture, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent.†

      No. 02CV007452
    No. 02CV007453
    No. 02CV007454
    No. 02CV007455
    No. 02CV007456

      No. 02CV007457
    No. 02CV007458
    No. 02CV007459
    No. 02CV007460
    No. 02CV007461

      No. 02CV007462
    No. 02CV007463
    No. 02CV007464
    No. 02CV007465
    No. 02CV007466

      No. 02CV007467
    Court of Appeals

      No. 03-0724.

      Submitted on briefs September 2, 2003.—

      Decided September 30, 2003.

    2003 WI App 220
    (Also reported in 672 N.W.2d 492.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert L. Gordon and Man Marcuvitz of Weiss Berzowski Brady LLP, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Gregg C. Hagopian, assistant city attorney, Milwaukee.
    Before Wedemeyer, PJ., Fine and Dykman, JJ.

      Petition to review denied 12-16-03.

   FINE, J.

¶ 1. Fourteen City of Milwaukee property-taxpayers appeal an order dismissing their actions brought under Wis. Stat. § 74.37 against the City for property-tax refunds. Before Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, § 74.37 could only be used to challenge tax assessments on property located outside of Milwaukee County. Nankin declared this restriction to be unconstitutional.

¶ 2. The trial court granted the City's motion to dismiss these consolidated cases. It held that despite Nankin, Wis. Stat. § 74.37 could not be used to challenge tax assessments on property in the City of Milwaukee. We disagree and reverse.

¶ 3. This appeal requires us to analyze not only Wis. Stat. § 74.37, as it survives Nankin, but also related statutes. Our review is de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-365, 560 N.W.2d 315, 317 (Ct. App. 1997) (trial court's statutory interpretation subject to de novo review). The goal of statutory analysis is, of course, to discern and apply the legislature's intent. Wisconsin Patients Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App 248, ¶ 9, 239 Wis. 2d 360, 368, 620 N.W.2d 457, 460-461. Here, as we will see, we have a statute that survives the excision of a part that Nankin held was unconstitutional. Accordingly, some special rules come into play to help us harmonize provisions that were once fully compatible with § 74.37 hut, as a result of Nankin, now conflict with that statute.

¶ 4. Wisconsin Stat. § 74.37 permits a taxpayer who contends that the "amount of general property tax imposed" is "excessive" to file a claim against "the taxation district" that "collected the tax." Wis. Stat. § 74.37(1) & (2)(a). The City is a "taxation district." See Wis. Stat. § 74.01(6). A taxpayer filing a claim under § 74.37 must do the following:

• put the claim "in writing" — § 74.37(2)(b)l;
• "[s]tate the alleged circumstances giving rise to the claim" — § 74.37(2)(b)2;
• "[s]tate as accurately as possible the amount of the claim" — § 74.37(2)(b)3;
• sign the claim — § 74.37(2)(b)4; and
• serve the claim "on the clerk of the taxation district... in the manner prescribed in s. 801.11 (4) by January 31 of the year in which the tax based upon the contested assessment is payable" —§ 74.37(2)(b)5.

Once all this is done, the "taxation district. . . shall notify the claimant by certified or registered mail whether the claim is allowed or disallowed within 90 days after the claim is filed." Wis. Stat. § 74.37(3)(b). If the claim is disallowed in whole or in part, "the claimant may commence an action in circuit court to recover the amount of the claim not allowed." Wis. Stat. § 74.37(3) (d). Any action the taxpayer brings must be commenced "within 90 days after the claimant receives notice by registered or certified mail that the claim is disallowed." Ibid.

¶ 5. Before Nankin, every property taxpayer in Wisconsin could use Wis. Stat. § 74.37 except those contesting taxes on property within Milwaukee County; Wis. Stat. § 74.37(6) provided: "This section does not apply in counties with a population of 500,000 or more." Milwaukee County is the only county with a population exceeding 500,000, and the City of Milwaukee is within Milwaukee County. Nankin declared that § 74.37(6) violated the rights of Milwaukee County taxpayers to equal protection of the law guaranteed by Wis. Const. art. I, § 1. Nankin, 2001 WI 92, ¶¶ 13-46, 245 Wis. 2d at 99-115, 630 N.W.2d at 147-155. Nankin thus struck § 74.37(6), severing it from the remainder of § 74.37, which Nankin held "will remain fully operative." Nankin, 2001 WI 92, ¶¶ 48-50, 245 Wis. 2d at 116-117, 630 N.W.2d at 155. The City contends that § 74.37 is "fully operative" except for taxpayers challenging assessments on property in the City of Milwaukee, and the trial court agreed, pointing to various provisions of the Wisconsin Statutes that it determined were inconsistent with the use of § 74.37 by these taxpayers. We now turn to those provisions.

A. Wisconsin Stat. § 74.37(2)(b)5.

• ¶ 6. As we have already seen, Wis. Stat. § 74.37(2)(b)5 requires that a refund claim under Wis. Stat. § 74.37: "Be served on the clerk of the taxation district... in the manner prescribed in s. 801.11 (4) by January 31 of the year in which the tax based upon the contested assessment is payable." The trial court held that this was impossible, given the City's workload. The trial court reflected:

Both sides agree this is an impossibility for City of Milwaukee taxpayers. Given the large number of tax parcels and volume of business of the Board of Review, the Milwaukee Board is never be [sic] done by Jan. 31 and the taxpayers could never meet that deadline. To harmonize this inconsistency, the court would have to ignore the Jan. 31st deadline in order to permit a City of Milwaukee claim.

There are two problems with this rationale.

¶ 7. First, a citizen's resort to the courts may not be frustrated because inaction by the governmental body whose action the citizen seeks to contest makes impossible the citizen's compliance with rules requiring the citizen to act within a certain time. See Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1115 (D.C. Cir. 1971) (procedural mandates imposed on agency may not be avoided by "[considerations of administrative difficulty, delay or economic cost"); State v. Gorsuch, 554 F. Supp. 1060, 1066 (S.D.N.Y. 1983) (public comment on proposed agency rules should not be "undermined by the [agency] Administrator's delay in carrying out her duties").

¶ 8. Second, "[t]he cardinal principle of statutory construction is to save and not to destroy." Town of Madison v. City of Madison, 269 Wis. 609, 614, 70 N.W.2d 249, 252 (1955). Thus, where part of a statute is struck, portions of other statutes that conflict with the surviving statute should not be allowed to nullify full operation of the surviving statute — especially when those now-inconsistent provisions were compatible with the statute before the excised part was removed. See Turner v. City of Milwaukee, 193 Wis. 2d 412, 420, 535 N.W.2d 15, 17 (Ct. App. 1995) (when statutes on the same subject conflict or are inconsistent with one another, courts must attempt to harmonize them in order to effectuate the legislature's intent); cf. Pritchard v. Madison Metro. Sch. Dist., 2001 WI App 62, ¶ 13, 242 Wis. 2d 301, 312-313, 625 N.W.2d 613, 618 (sometimes, but not always, a later-enacted statute will prevail over earlier legislation with which it conflicts). Obeisance to legislative intent is so important that we may even insert words in a statute when that is necessary "to avoid conflicting provisions and an absurd result" that the legislature did not intend. State v. Gould, 56 Wis. 2d 808, 812, 202 N.W.2d 903, 906 (1973); Foster v. Sawyer County, 197 Wis. 218, 223, 221 N.W. 768, 770 (1928) (Courts may "reject words, or read words in place which seem to be there by necessary or reasonable inference, and substitute the right word for one clearly wrong, and so find the real legislative intent, though it be out of harmony with, or even contradict, the letter of the enactment.") (quoted source omitted).

¶ 9. The legislature's overarching intent in enacting Wis. Stat. § 74.37 was to ensure that most property taxpayers in Wisconsin had access to the courts with the full panoply of civil-action procedures with which to challenge a taxing district's property-tax assessment. Nankin, 2001 WI 92, ¶¶ 19-33, 245 Wis. 2d at 101-108, 630 N.W.2d at 148-155. Although the legislature also intended to deprive Milwaukee County property-taxpayers of the civil-action procedures it deemed appropriate for others in Wisconsin, such preference violated the right of Milwaukee County taxpayers to equal protection of the law. Id., 2001 WI 92, ¶¶ 13-46, 245 Wis. 2d at 99-115, 630 N.W.2d at 147-155. There is nothing in the legislative history — either as explored by Nankin, or provided to us by the parties — that suggests that the legislature would have intended the whole of § 74.37 to sink if the preference given to non-Milwaukee County taxpayers by Wis. Stat. § 74.37(6) was nullified. Indeed, as Nankin held, the history is to the contrary. Nankin, 2001 WI 92, ¶¶ 48-50, 245 Wis. 2d at 116-117, 630 N.W.2d at 155. We thus assume that the legislature — if forced to choose between either permitting every property taxpayer to use § 74.37, or permitting no taxpayer to use it — would have extended the statute's benefits to all. See Nankin, 2001 WI 92, ¶ 50, 245 Wis. 2d at 117, 630 N.W.2d at 155. After Nankin, we see the state-wide application of § 74.37 as the predominant legislative purpose, which must prevail over any statutes that would defeat its implementation. See Byers v. Labor & Indus. Review Comm'n, 208 Wis. 2d 388, 395, 561 N.W.2d 678, 681 (1997) (legislative intent is the key to resolution of conflicts between statutes).

¶ 10. It would make little sense and would defeat the intent of the legislature to apply provisions that were once — but no longer are — consistent with Wis. Stat. § 74.37, to deprive Milwaukee County property-taxpayers the use of § 74.37 merely because those taxpayers seek to contest City of Milwaukee tax assessments. Indeed, Nankin recognized that the legislature had made special rules for City of Milwaukee property-taxpayers, Nankin, 2001 WI 92, ¶¶ 16 n.6; 17 n.7; 26 n.10, 245 Wis. 2d at 100 nn.6, 7; 105 n.10, 630 N.W.2d at 147 nn.6, 7; 150 n. 10, but never even hinted that these provisions, some of which predated and were sheltered by Wis. Stat. § 74.37(6), would survive excision of that subsection if they conflicted with the rest of § 74.37. Other than rhetoric and desire, the City offers nothing that would justify carving out — and imposing on § 74.37 by judicial fiat — a subsection-(6)-like exception for the City of Milwaukee. Significantly, Nankin recognized that full use of § 74.37 by all Wisconsin taxpayers would not unduly burden any of the counties' courts. Nankin, 2001 WI 92, ¶ 42, 245 Wis. 2d at 112-113, 630 N.W.2d at 153.

¶ 11. As we have seen, Wis. Stat. §§ 74.37(2)(a) and 74.37(2)(b)5 require that: "A claim for an excessive assessment... [b]e served on the clerk of the taxation district... by January 31 of the year in which the tax based upon the contested assessment is payable." This conflicts with Wis. Stat. § 70.47(16), which says that "[i]n 1st class cities," that is, in the City of Milwaukee, "all objections to the amount or valuation of real... property shall be first made in writing and filed with the commissioner of assessments on or before the 3rd Monday in May." Given the workload problems in the City asserted by the City and mentioned by the trial court, there is no reason why the January 31 deadline in § 74.37(2)(b)5 need be inviolable; there is no indication that the specific January 31 deadline is essential to any legislative purpose in connection with claims brought by Milwaukee County taxpayers challenging tax assessments by the City of Milwaukee. We thus see no reason why the "3rd Monday in May" deadline cannot, under the rules of statutory' construction we have already discussed, be applied to taxpayers using Wis. Stat. § 74.37 to challenge assessments of their City of Milwaukee property. Accordingly, a claim filed by a City taxpayer using § 74.37 is timely if the claim is filed with the commissioner of assessments on or before the third Monday in May. Additionally, an action seeking court review of an adverse action by the City Board of Review is timely if the action is commenced within ninety days after the taxpayer receives the notice of decision under Wis. Stat. § 70.47(12). This, of course, is also consistent with Wis. Stat. § 74.37(3)(d).

B. Wisconsin Stat. §§ 74.37(4)(a) & 70.47.

¶ 12. The trial court determined that what it saw as the irreconcilable conflict between Wis. Stat. §§ 74.37(4)(a) and 70.47 as preventing City of Milwaukee property-taxpayers from using Wis. Stat. § 74.37. We disagree.

¶ 13. Wisconsin Stat. § 74.37(4)(a) provides:

No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under s. 70.47 (13), have been complied with. This paragraph ■does not apply if notice under s. 70.365 was not given.

(Footnote added.) Wisconsin Stat. § 70.47(13) provides:

Except as provided in s. 70.85, appeal from the determination of the board of review shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice under sub. (12) . The action shall be given preference. If the court on the appeal finds any error in the proceedings of the board which renders the assessment or the proceedings void, it shall remand the assessment to the board for further proceedings in accordance with the court's determination and retain jurisdiction of the matter until the board has determined an assessment in accordance with the court's order. For this purpose, if final adjournment of the board occurs prior to the court's decision on the appeal, the court may order the governing body of the assessing authority to reconvene the board.

(Footnote added.) The trial court recognized, as phrased in its written decision, that § 70.47(13) "doesn't apply to City of Milwaukee taxpayers," and further opined:

It is the Writ of Certiorari option for non-First Class City appellants only. To harmonize this inconsistency, the court would have to either, read into the statute a reference to [Wis. Stat. § 70.471(16) which is the Writ of Certiorari option for First Class City appellants, or ignore the reference to (13) as mere surplusage in cases of City of Milwaukee claimants.

We see no inconsistency between § 74.37(4)(a) and Wis. Stat. § 70.47 in this regard; § 74.37(4)(a) says that taxpayers need not comply with § 70.47(13) before they may use Wis. Stat. § 74.37. It is immaterial that City of Milwaukee taxpayers cannot comply with § 70.47(13); they never had to comply with it.

C. Wisconsin Stat. § 74.37(4)(b).

¶ 14. The trial court pointed to Wis. Stat. § 74.37(4)(b) as another provision with which it would be impossible for City of Milwaukee taxpayers to comply. Section 74.37(4)(b) reads:

No claim or action for an excessive assessment may be brought or maintained under this section unless the tax for which the claim is filed, or any authorized installment of the tax, is timely paid under s. 74.11 or 74.12.

The trial court noted in its written decision that Wis. Stat. §§ 74.11 and 74.12 do not apply to City of Milwaukee taxpayers, who are governed by another schedule, Wis. Stat. § 74.87. The trial court further wrote: "In order to harmonize the conflict here, the court would either have to add [74.87] or ignore the references to 74.11 and 74.12 as mere surplusage."

¶ 15. As we have already seen, however, things are different in the post -Nankin world than they were before. Again, under the rules of statutory construction we have already discussed, the intent of the legislature that protesting taxpayers must first pay their taxes before they may use Wis. Stat. § 74.37 can be easily obeyed by, as the trial court recognized, substituting the provision applicable to City of Milwaukee taxpayers; the pre-payment concept is the significant part of the legislative scheme, not the specific provision implementing that scheme. Thus, we reaffirm that no taxpayer may use § 74.37 "unless the tax for which the claim is filed, or any authorized installment of the tax, is timely paid" but hold that what is or what is not "timely" must be ascertained by the statutes applicable to the City of Milwaukee.

D. Wisconsin Stat. § 74.37(4)(c).

¶ 16. The trial court also pointed to Wis. Stat. § 74.37(4)(c) as another provision with which it would be impossible for City of Milwaukee taxpayers to comply. Section 74.37(4)(c) provides:

No claim or action for an excessive assessment may be brought or maintained under this section if the assessment of the property for the same year is contested under s. 70.47 (13) or 70.85. No assessment may be contested under s. 70.47 (13) or 70.85 if a claim is brought and maintained under this section based on the same assessment.

The trial court wrote in its decision:

This section states that a claim may not be brought if a taxpayer brings a Writ of Certiorari under 70.47(13). But City of Milwaukee taxpayers don't bring Writs of Cert, under (13). They bring them under (16), which are specifically entitled Appeals for First Class taxpayers. The omission of any reference to (16) in 74.37(4)(c) read literally, means that City of Milwaukee taxpayers could bring BOTH a Writ of Certiorari and a claim under 74.37. But that reading would clearly frustrate the long-established legislative intent of exclusivity of methods of tax appeal. To harmonize the statutes, the court would either have to frustrate the clear legislative intent or to read-in a reference to (16).

(Uppercasing in original.) We disagree.

¶ 17. First, as we have already discussed, Wis. Stat. § 70.47(13) does not apply to City of Milwaukee taxpayers. There is thus no conflict. Second, as to the trial court's concern that City of Milwaukee taxpayers will attempt to use both Wis. Stat. §§ 74.37 and 70.47(16) to challenge a tax assessment, we question whether, given the clear advantages of the procedures authorized by § 74.37, Nankin, 2001 WI 92, ¶¶ 19-33, 245 Wis. 2d at 101-108, 630 N.W.2d at 148-151, any City of Milwaukee taxpayer would be tempted to also use the writ-of-certiorari procedure set out in § 70.47(16). We need not venture there now: "Grotesque or fanciful situations, such as those supposed, will have to be dealt with when they arise." Gaines v. City of New York, 109 N.E. 594, 596 (N.Y. 1915) (Cardozo, J.).

E. Wisconsin Stat. § 70.47(16).

¶ 18. As we have seen, Wis. Stat. § 70.47(16) provides that an appeal from a decision by the City of Milwaukee Board of Review "shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice [of decision] under [Wis. Stat. § 70.47(12)]." This, of course, conflicts with the post-Nankin Wis. Stat. § 74.37. As such, it must give way. As Byers teaches, resolution of a direct conflict between statutes must implement the predominant legislative goal. See Byers, 208 Wis. 2d at 395, 561 Wis. 2d at 681. Here, once Nankin struck Wis. Stat. § 74.37(6), the remainder of the "fully operative" § 74.37, Nankin, 2001 WI92, ¶ 50, 245 Wis. 2d at 117, 630 N.W.2d at 155, and its resulting state-wide application, must govern. Stated another way, § 74.37 trumps any provision that was once, but no longer is, consistent with its provisions, and this includes that part of § 70.47(16) that says that those contesting City of Milwaukee property-tax assessments may only seek judicial review of those assessments via certiorari.

By the Court. — Order reversed, motions denied and causes remanded.

       The trial court did not assess the validity of the City's other defenses, and they will have to be decided by the circuit courts to which these cases will be assigned. See Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145-146 (1980) (appellate courts will generally not consider matters not previously ruled on by the trial court). We also do not discuss alternative arguments asserted by the taxpayers in support of their contention that the trial court's order should be reversed. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
      We deny the City of Milwaukee's motion to either strike the reply brief filed by the taxpayers, or for permission to file a surreply brief. The City also seeks consolidation of this appeal with another appeal, No. 03-0092. This court has already issued an order in that case, denying the motion to consolidate and summarily reversing the trial court. 5616 Corp. v. Reavey, No. 03-0092, unpublished slip op. (WI App Aug. 29, 2003).

       Wisconsin Stat. § 70.365 requires assessors to tell taxpayers if a new assessment is "different" than an assessment "for the previous year" and is not material to our analysis here.

       Wisconsin Stat. § 70.85(1) permits taxpayers who contend that an assessment "is radically out of proportion to the general level of assessment of all other property" in a taxation district to "file a written complaint" with the Wisconsin Department of Revenue, and is not material to our analysis here.

       The brief submitted to us by the City of Milwaukee is overly tendentious and lacks the civility that lawyers owe to both their adversaries and to the courts. The following has no place in a brief before any court in this state: accusing an opposing party of seeking "political anarchy" (capitalization omitted), "anarchy," "anarchy with a vengeance," and "taxpayer anarchy," which the City's brief does on pages fifteen, nineteen, twenty, and twenty-two; accusing an opposing party of "creating a 'sideshow,'" which the City's brief does on page twenty; accusing an opposing party of advancing "crazy arguments" that "are ludicrous," which the City's brief does on page twenty-two; characterizing an opponent's arguments as "hogwash" (capitalization omitted), which the City's brief does on pages twenty-two and twenty-four; accusing an opposing party of being an "obstructionist," which the City's brief does on page forty-two; accusing opposing parties of being "obstructionist-anarchists," which the City's brief does on page fifty; contending that a decision in an opponent's favor would "reward anarchy," which the City's brief does on page fifty; characterizing an opponent's argument as "ridiculous," which the City's brief does on page fifty-two; and characterizing an opponent's argument as "crazy," which the City's brief does on page fifty-two.
      In our view, these comments violate SCR 62.02(l)(a), because they do not reflect a "cordial and respectful demeanor"; SCR 62.02(l)(b), because they are not "civil"; SCR 62.02(l)(c), because they are "disparaging, demeaning [and] sarcastic"; and SCR 62.02(l)(d), because they are "uncivil, abrasive, abusive, hostile, [and] obstructive." We have previously warned appellate lawyers for the City, although not current counsel, that hyperbole is "unworthy of government lawyers." Milwaukee Police Ass'n v. City of Milwaukee, 2002 WI App 43, ¶ 13 n.3, 250 Wis. 2d 676, 688 n.3, 641 N.W.2d 709, 715 n.3. It is unworthy of all lawyers. See Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 509, 583 N.W.2d 849, 856 (Ct. App. 1998) ("Civility is one aspect of professionalism that all attorneys should strive for.").


author: SNYDER, J.

text:
    In re the Commitment of Elizabeth M. P.: Fond du Lac County, Petitioner-Respondent, v. Elizabeth M. P., Respondent-Appellant.
    Court of Appeals

      No. 02-3221.

      Submitted on briefs May 15, 2003.—

      Decided October 1, 2003.

    2003 WI App 232
    (Also reported in 672 N.W.2d 88.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Thomas K. Voss of Thomas K. Voss, Attorney at Law, S.C., Waukesha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of William J. Bendt, Corporation Counsel.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Elizabeth M. P appeals from orders of the circuit court denying her motion for immediate transfer from inpatient status to outpatient status and her motion for reconsideration of that decision. Elizabeth argues that the hearing pursuant to Wis. Stat. § 51.35(l)(e) (2001-02), to transfer her to inpatient status, was held outside the mandatory ten-day time period and thus the circuit court was without jurisdiction. We agree and reverse the orders of the circuit court.

FACTS

¶ 2. On November 20, 2001, the circuit court extended the commitment of Elizabeth to the Fond du Lac County Department of Community Programs (County) for treatment of her mental illness from November 4, 2001, until November 3, 2002. The circuit court found Elizabeth incompetent to refuse psychotropic medication and entered an order for involuntary medication and treatment pursuant to Wis. Stat. § 51.61(l)(g) and (h). The court found that Elizabeth was mentally ill and dangerous because she "[ejvidences a substantial likelihood, based on [her] treatment record, that [she] would be a proper subject for commitment if treatment were withdrawn." Elizabeth was committed to the County under Wis. Stat. § 51.42 or § 51.437 for treatment with the Trempealeau County Health Care Center as the designated facility to receive her, which may include a locked inpatient facility as the maximum level of treatment, with a transfer to a group home or community based residential facility within sixty days.

¶ 3. In March 2002, Elizabeth was transferred from a locked inpatient facility to the Bletzinger House, a group home treatment facility. On May 28, 2002, a notice to transfer Elizabeth from outpatient to inpatient status was filed pursuant to Wis. Stat. § 51.35(1). This notice stated that Elizabeth was being transferred from outpatient to inpatient status effective May 28, 2002. The notice also stated that Elizabeth had the right to contact a member of her immediate family, the right to be represented by an attorney, the right to be represented by an attorney at public expense if she was indigent, and the right to request the court to review her transfer within ten days.

¶ 4. An affidavit by the corporation counsel for Fond du Lac county, attached to this notice, indicated that since Elizabeth's outpatient placement she had refused to take her court-ordered medication, had become delusional, argumentative and aggressive, and had failed to take her psychotropic medication as prescribed. The affidavit further indicated that Elizabeth's mental condition had substantially deteriorated,'that she was unable to meet the demands of everyday life, and that she had violated conditions of her commitment "in that she has failed to comply with recommended treatment."

¶ 5. That same day, May 28, 2002, the circuit court signed an order directing the sheriffs department or a designated law officer to take Elizabeth into custody at the Bletzinger House and transfer her to the Fond du Lac County Health Care Center's acute unit. The circuit court further ordered that Elizabeth's commitment be transferred from outpatient status to inpatient status until her condition stabilized as determined by her treating physician.

¶ 6. On May 29, 2002, Elizabeth received a "Notice of Transfer from Outpatient to Inpatient Status Chapter 51.35(l)(e)," which advised her of her rights as provided under Wis. Stat. § 51.35(l)(e)l.

¶ 7. On June 13, 2002, Elizabeth filed a motion for her immediate release from inpatient treatment, arguing that a hearing to review her transfer to inpatient status was not held within ten days of the transfer, as required by Wis. Stat. § 51.35(l)(e)3. On June 19, 2002, the circuit court denied this motion, finding that the transfer to inpatient status was made pursuant to § 51.35(l)(e)l, not § 51.35(l)(e)3, and that Elizabeth had been properly provided with notice of the transfer. The court further concluded that a transfer under § 51.35(l)(e)l does not require a hearing within ten days of the transfer. The court also found that Elizabeth had the right to judicial review of her transfer and ordered a judicial review hearing at a future time and date.

¶ 8. On July 8, 2002, Elizabeth filed a motion for reconsideration of this decision, arguing that her transfer was, in fact, done pursuant to Wis. Stat. § 51.35(l)(e)3, not § 51.35(l)(e)l, as indicated by implicit admissions by the corporation counsel. The circuit court denied this motion.

¶ 9. Elizabeth's judicial review hearing took place on July 9, 2002. The circuit court approved the transfer, finding that the least restrictive environment consistent with Elizabeth's needs was inpatient status. Elizabeth appeals from this latter order.

DISCUSSION

¶ 10. The issue presented is whether the circuit court had jurisdiction to transfer Elizabeth to inpatient status when judicial review of the County's decision to transfer her was not held within ten days as required by Wis. Stat. § 51.35(l)(e)3. The circuit court concluded that a transfer under § 51.35(l)(e)l does not require a hearing within ten days of transfer. Resolution of this issue requires that we interpret § 51.35.

¶ 11. Statutory interpretation is a question of law which we review de novo. State v. Anthony D.B., 2000 WI 94, ¶ 8, 237 Wis. 2d 1, 614 N.W.2d 435. The goal of statutory interpretation is to discern the intent of the legislature. Id. Therefore, deference with regard to the circuit court's interpretation of the statute is not required. However, we give deference to the circuit court's findings of fact upon which it based its decision. A trial court's findings of fact will be upheld unless clearly erroneous. State v. Carlson, 2003 WI 40, ¶ 24, 261 Wis. 2d 97, 661 N.W.2d 51.

¶ 12. Elizabeth makes the following arguments: the County did not have the authority to detain her or transfer her from outpatient to inpatient status; the circuit court lacked jurisdiction to enter its May 28, 2002 order directing her detention and ordering her commitment be transferred to inpatient status; and the circuit court's order for her detention and transfer to inpatient status violated her due process rights. Elizabeth's motions before the circuit court concerned the validity of transfer under Wis. Stat. § 51.35(l)(e)l without making reference to § 51.35(1) (e) 3. On appeal, Elizabeth continues to raise her objection to the court's jurisdiction.

¶ 13. Elizabeth was taken into inpatient status on May 28, 2002. An initial hearing on this transfer from outpatient was held on June 18, 2002. At the hearing, Elizabeth argued that the time limits of Wis. Stat. § 51.35(l)(e) are jurisdictional and because the hearing occurred outside of the jurisdictional ten-day time frame, she should be transferred back to outpatient status. Meanwhile, the County argued that "[u]nder [Wis. Stat. § 51.35(l)(e)l], you don't have to have a hearing within 10 days." The County further argued that a patient who was originally inpatient and was transferred to outpatient but then violated certain terms or conditions of release can be transferred back to inpatient status without a hearing within ten days because § 51.35(l)(e)2 allows for a different form of transfer. Elizabeth, the County argued, had not been transferred due to violating a term of her release to outpatient but was transferred because her mental state had "decompensated." The County argued that as a result of the above, she was transferred in accordance with § 51.35(l)(e)l, not § 51.35(l)(e)2.

¶ 14. The circuit court wrestled with its decision in interpreting the statute, eventually adopting the County's interpretation as indicated in the record:

[ELIZABETH'S COUNSEL]: ... Lockman v. Gerhardi-stein says the statutes are jurisdictional....
[T]he time limits are jurisdictional whether it's, you know, [Wis. Stat. §] 51.35 or 51.20 or 51.15 ....
[THE COUNTY]: But clearly, the notice that was given to her by [mental health specialist] Joseph Dum-baskas at the time and the notice of transfer indicated that this was a transfer under (e)l, not under (e)2.
THE COURT: Well, you are reading those separately. But as I look at it, it says: In addition to the rights and requirements specified in subsection 1, within 24 hours after any transfer which results ... in a greater restriction ....
I don't think it's separate. I don't think it's 1 or 2.1 think it's 1 and 2.
THE COURT: What bothers me, I think, about this statute is the fact that I don't know if it can be interpreted separately, as section 1 is just geared towards a certain situation and then section 2 kicks in on another specific set of circumstances. But that's your argument.
[THE COUNTY]: Right.
THE COURT: You are saying otherwise to one situation and not the other because the other one is confronted with Subsection 2. But it's poorly written because it says, "In addition to the rights and requirements specified in Subsection 1, within 24 hours after any transfer"...
[THE COUNTY]: But [it also] says, "If the transfer is due to an alleged violation of a condition of a transfer." That — that's the key to that paragraph.
If you are transferred to inpatient status because there is an allegation that you failed to comply with a condition of transfer from inpatient to outpatient status, in other words, the department transfers you from inpatient to outpatient status and then establishes ... conditions for you to meet in order to do that, and if you violate one of those conditions and they then transfer you inpatient, then there is a requirement that you have a hearing within 10 days. And, in fact, you have to waive the hearing, and you can only waive it after consultation with counsel, and you have to waive it in writing with the waiver being witnessed by the patient's counsel. But it is a different set of rights.
Otherwise, what they have is a right for judicial review, ask the court at any time after the transfer .... This other hearing that they are talking about is heard by a hearing officer at the level of the department. It's a completely different kind of hearing, and it's certainly not required in every case.
THE COURT: The Court feels that under the arguments and presentations made by respective counsel, pro and con, as to the interpretation of [Wis. Stat. §] 51.35(l)(e)3, which is — being the context of [Elizabeth] that this Court lacks jurisdiction, that the motion is denied.
The Court grants the opposing view of the [County] that [Wis. Stat. §] 51.35(l)(e) is applicable and that the notice given by Joseph Dumbaskas, a mental health specialist, was in full compliance with that particular statutory subsection and that the court therefore does have jurisdiction to hear the matter, and [Elizabeth] is entitled to have a hearing on her transfer from the less restrictive placement to the more restrictive placement of being treated inpatient.

We disagree with the circuit court's interpretation of § 51.35(l)(e) as applied to Elizabeth's situation.

¶ 15. Wisconsin Stat. § 51.35(l)(a) allows a department or county department to transfer "any patient . . . who is committed to it, or who is admitted to a facility under its supervision or operating under an agreement with it, between treatment facilities or from a facility into the community if such transfer is consistent with reasonable medical and clinical judgment and consistent with s. 51.22(5)." Section 51.35(l)(a) further states that such a "transfer shall be made in accordance with par. (e)" and that if the patient is required to take medication as a condition of transfer, the patient or resident "shall be informed at the time of transfer of the consequences of violating such terms and conditions, including possible transfer back to a facility which imposes a greater restriction on personal freedom of the patient or resident."

¶ 16. Wisconsin Stat. § 51.35(l)(e) states:

1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.
2. In addition to the rights and requirements specified in subd. 1., within 24 hours after any transfer which results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days and if the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the department or the county department specified under par. (a) shall ensure that the patient is provided a written statement of the reasons for the transfer and the facts supporting the transfer and oral and written notice of all of the following:
a.The requirements and rights under subds. 3. to
5.
b. The patient's right to counsel.
c. The patient's right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent.
d. The rights of the patient's counsel to investigate the facts specified in the written statement of reasons for the transfer, to consult with the patient prior to the patient's waiving a hearing under subd. 3., to represent the patient at all proceedings on issues relating to the transfer, and to take any legal steps necessary to challenge the transfer.
3. Within 10 days after the transfer specified in subd. 2., a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under subd. 2. The hearing shall be held before a hearing officer designated by the director of the facility to which the patient has been transferred. The hearing officer may not be a person who has had direct responsibility for making treatment decisions for or providing treatment to the subject individual. The patient may appear at the hearing, either personally or by counsel, and may present and cross-examine witnesses and present documentary evidence. The hearing may be waived by the patient only after consultation with counsel. Any waiver made shall be in writing and witnessed by the patient's counsel.
4. The department or the county department seeking the transfer has the burden of proving, by a preponderance of the evidence, that the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and that the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under subd. 2. Hearsay evidence is admissible if the hearing officer makes a determination that the evidence is reliable. Hearsay evidence may not be the sole basis for the decision of the hearing officer.
5. The hearing officer shall, as soon as possible after the hearing, issue a written statement setting forth his or her decision, the reasons for the decision and the facts upon which the decision is based. Within 30 days after the date on which the statement is issued, the patient or the department or the county department seeking the transfer may appeal the decision to a court in the county in which the facility to which the patient has been transferred is located or to the committing court.
6. This paragraph does not apply to a return to a more restrictive facility if the return occurs within 7 days after a temporary transfer from that facility and the return was part of a previously established plan of which the patient was notified at the time of the temporary transfer. This paragraph does not apply to a return of an inmate to a state or county treatment facility under s. 51.20(13)(cm).

¶ 17. On its face, Wis. Stat. § 51.35(l)(e) does not differentiate between transfers made pursuant to subdivisions 1 and 3. In fact, § 51.35(l)(e)3 clearly references subdivision (l)(e)2, which in turn references subdivision (l)(e)l. However, § 51.35(l)(e)l and (l)(e)2 seem to indicate different forms of transfers. The provisions suggest that while only one transfer provision and its various subdivisions all serve to protect the rights of patients, subdivision 2 exists to further protect the rights of those whose transfer "results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days" where the transfer "is due to an alleged violation of a condition of a transfer to less restrictive treatment." Sec. 51.35(l)(e)2.

¶ 18. Elizabeth's transfer occurred pursuant to Wis. Stat. § 51.35(l)(e)2 because the document affecting her transfer relates the rights that are enumerated in § 51.35(l)(e)3 to 5. The form given to Elizabeth on May 28, 2002, states:

[Y]ou are being transferred from outpatient status to inpatient status .... This transfer places you in a more restrictive setting. Because of this transfer, you have certain rights that are guaranteed to you. Those rights are:
1. Within 24 hours of your transfer, you are entitled to a written statement of the reasons for your transfer and the facts supporting the transfer.
2. You are to be given oral and written notice of all of the following:
d) You have the right to a hearing on the transfer within ten (10) days after the transfer; this transfer to inpatient status may last for more than five (5) days;
e) The issues at the hearing will be whether you did, in fact, violate a condition of a prior transfer to a less restrictive setting and whether the form of treatment resulting from the transfer is the least restrictive of your personal liberty consistent with your treatment needs;
f) You may appear at the hearing, either without an attorney or with an attorney. You may call witnesses, cross examine witnesses, and present evidence relating to the transfer or alleged violation of conditions of transfer;
g) You may waive the hearing, but only after consultation with an attorney, and any waiver made shall be in writing, and it must be signed by both you and your attorney.

This notice, which was filed on May 28, 2002, mirrors the transfer provisions of § 51.35(l)(e)2.

¶ 19. Moreover, one of the reasons that was stated for the transfer included a "[flailure to take court-ordered medications as prescribed." This indicates that her transfer was "due to an alleged violation of a condition of a transfer to less restrictive treatment." Wis. Stat. § 51.35(l)(e)2.

¶ 20. Thus, we conclude that Elizabeth was transferred pursuant to Wis. Stat. § 51.35(l)(e)2. Because a hearing on her § 51.35(l)(e)2 transfer did not occur within the ten-day period as prescribed by § 51.35(l)(e)3, the only question that remains is whether the provision in § 51.35(1) (e) 3 for a hearing is mandatory or directory. In determining whether a statutory provision is mandatory or directory, the primary concern is to determine the intent of the legislature. Worachek v. Stephenson Town Sch. Dist., 270 Wis. 116, 120, 70 N.W.2d 657 (1955).

¶ 21. Wisconsin Stat. § 51.35(l)(e)3 states that "a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment" within ten days of transfer. The use of the word "shall" suggests that the provision must be interpreted as mandatory. In fact, the normal interpretation of this statutory language is that "the word 'shall' is presumed mandatory when it appears in a statute." State v. Sprosty, 227 Wis. 2d 316, 324, 595 N.W.2d 692 (1999).

¶ 22. However, on occasion, we have held statutory time limits to be directory despite the use of the word "shall." Eby v. Kozarek, 153 Wis. 2d 75, 79-80, 450 N.W.2d 249 (1990). Thus, whether the word "shall" denotes a mandatory or directory action is not "governed by a per se rule." State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 15, 262 Wis. 2d 720, 665 N.W.2d 155. Instead, in order to determine whether a statutory time limit is mandatory or directory, we must consider several factors, including "the existence of penalties for failure to comply with the limitation, the statute's nature, the legislative objective for the statute, and the potential consequences to the parties, such as injuries or wrongs." Id., ¶ 17 (citation omitted).

¶ 23. In Karow v. Milwaukee County Civil Service Commission, 82 Wis. 2d 565, 572, 263 N.W.2d 214 (1978), the Wisconsin Supreme Court acknowledged that provisions may be mandatory or directory:

[A] time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury. But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory.

Injury occurs where an interest is violated. For example, an individual, "who is incarcerated and deprived of [his or] her liberty until the holding of a final commitment hearing, is injured to an even greater degree." State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 330, 320 N.W.2d 27 (Ct. App. 1982). In fact, we have held that the liberty interest of a patient in a civil commitment hearing is a substantial one. Shirley J.C. v. Walworth County, 172 Wis. 2d 371, 375, 493 N.W.2d 382 (Ct. App. 1992). The Wisconsin Supreme Court has also looked at this issue:

A court must balance the desires of mental health professionals, friends, and family members who believe that care and treatment are in the best interests of a person who is mentally ill, and the constitutional liberty interests of individuals to be free from unwanted and unnecessary restraints. In recent decades, this balance has been struck by requiring proof of mental illness and imminent dangerousness to self or others before permitting involuntary civil commitment.

State v. Dennis H., 2002 WI 104, ¶ 48, 255 Wis. 2d 359, 647 N.W.2d 851 (Abrahamson, C.J., concurring) (footnote omitted).

¶ 24. Even if this were not enough to interpret the statute as mandatory, the Wisconsin Supreme Court has indicated that a presumption remains that "shall" indicates a mandatory action. Sprosty, 227 Wis. 2d at 324. "Further support is given to a mandatory interpretation of 'shall' when the legislature uses the words 'shall' and 'may' in a particular statutory section, indicating the legislature was aware of the distinct meanings of the words." Id. (citation omitted). Applying the logic of Sprosty to the matter at hand, we find that the subdivision in question also states:

The hearing shall be held before a hearing officer designated by the director of the facility to which the patient has been transferred. The hearing officer may not be a person who has had direct responsibility for making treatment decisions for or providing treatment to the subject individual. The patient may appear at the hearing, either personally or by counsel, and may present and cross-examine witnesses and present documentary evidence. The hearing may be waived by the patient only after consultation with counsel. Any waiver shall be in writing and witnessed by the patient's counsel.

Wis. Stat. § 51.35(l)(e)3 (emphasis added). The fact that the statute differentiates between "may" and "shall" indicates that the patient may choose to behave as he or she sees fit, but the State must comply with the duties imposed upon it by the statute. Thus, the interpretation of the word "shall" in § 51.35(l)(e) as mandatory is supported by the logic of Sprosty.

¶ 25. This conclusion, that the hearing is mandatory, is further supported by the language of Wis. Stat. § 51.35(l)(e)3: "The hearing may be waived by the patient only after consultation with counsel. Any waiver made shall be in writing and witnessed by the patient's counsel." When a hearing must be waived and can only be waived in writing after consultation with legal counsel, such a provision can only be construed as mandatory.

¶ 26. We therefore reverse the order of the circuit court insofar as it found: (1) that the transfer to inpatient status was made pursuant to Wis. Stat. § 51.35(l)(e)l, not § 51.35(l)(e)3; and (2) that a transfer under § 51.35(1)(e)l does not require a hearing within ten days of the transfer. Transfers pursuant to § 51.35(l)(e) require a hearing within ten days.

¶ 27. Elizabeth also requests release from the underlying commitment order. All of her arguments of error, however, center around the order transferring her to inpatient status. She makes no arguments challenging the commitment order. We decline to address arguments insufficiently developed. Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995). Accord State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

CONCLUSION

¶ 28. Wisconsin Stat. § 51.35(l)(e) mandates that a patient transferred to a more restrictive environment receive a hearing within ten days of said transfer. Elizabeth was not provided with a hearing within ten days in violation of § 51.35(l)(e)3. The circuit court was without jurisdiction to effectuate a transfer to inpatient status. We therefore reverse the orders of the circuit court. Elizabeth shall be returned to outpatient status.

By the Court. — Orders reversed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Statutory time periods exclude Saturdays, Sundays and holidays where a statute governs actions and special proceedings, and the period of time prescribed or allowed is less than eleven days. Wis. Stat. § 801.15. Furthermore, we must calculate time in days, excluding the first day and including the last. Wis. Stat. § 990.001(4)(a). Therefore, the ten-day time frame listed in Wis. Stat. § 51.35(l)(e) for a hearing expired on June 9, 2002.

       WISCONSIN Stat. § 51.35(l)(e)6 states that this section does not apply to persons who have been returned to a more restrictive facility within seven days of a temporary transfer to a less restrictive facility or to inmates who have been transferred under Wis. Stat. § 51.20(13)(cm). Neither of these provisions applies to the matter at hand.

       We understand that the commitment order terminated on November 3,2002, and that this issue may be moot. "An issue is moot when its resolution will have no practical effect on the underlying controversy." State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425. However, an appellate court may consider a moot issue if one of the following conditions is met: (1) it has great public importance; (2) a statute's constitutionality is involved; (3) a decision is needed to guide the trial courts; or (4) where the situation is likely to be repeated but seems to evade review because it is resolved before the completion of the appellate process. Id. This court has also determined that an issue is of great public importance when it affects the liberty interests of all persons subject to an involuntary commitment in Wisconsin. Shirley J.C. v. Walworth County, 172 Wis. 2d 371, 375, 493 N.W.2d 382 (Ct. App. 1992) (examining an involuntary commitment pursuant to Wis. Stat. § 51.20).
      Here, Elizabeth has appealed from the denial of her motion to release her from inpatient treatment under the commitment order and return her to outpatient status. Therefore, we are satisfied that such relief asked for by Elizabeth in her appeal should be addressed. This opinion addresses that seminal issue; however, the current commitment status, if any, may control Elizabeth's current situation, so long as that commitment status was not reached in a manner inconsistent with this opinion. Thus, Elizabeth's present situation might not be altered by this opinion if a circuit court has already reviewed and extended Elizabeth's commitment pursuant to the procedures established in the Wisconsin Statutes.