author: JON P. WILCOX, J. ANN WALSH BRADLEY, J.

text:
    State of Wisconsin ex rel. Spriggie Hensley, Plaintiff-Appellant, v. Jeffrey P. Endicott, and Wisconsin Department of Corrections, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 00-0076.

      Oral argument May 30, 2001.

    Decided July 11, 2001.

    2001 WI 105
    (Also reported in 629 N.W.2d 686.)

      For the defendants-respondents-petitioners the cause was argued by Michael D. Oeser, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the plaintiff-appellant there was a brief by Beth Ermatinger Hanan and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, and oral argument by Beth E. Hanan.

    An amicus curiae brief was filed by Michael P. May and Boardman, Suhr, Curry & Field LLP, Madison, on behalf of the American Civil Liberties Union of Wisconsin Foundation.
   JON P. WILCOX, J.

¶ 1. This is a review of a published decision of the court of appeals, State ex rel. Hensley v. Endicott, 2000 WI App 189, 238 Wis. 2d 649, 618 N.W.2d 245, reversing an order of the Dane County Circuit Court, Steven D. Ebert, Judge. There are two issues. The first issue is whether there is a common law futility exception to the Prisoner Litigation Reform Act's (PLRA), codified at Wis. Stat. § 801.02(7)(b)(1997 — 98), statutory exhaustion requirement. We find that the statute is clear on its face in requiring prisoners to exhaust their administrative remedies prior to bringing an action in circuit court. Accordingly, there is no common law futility exception to the PLRA. The second issue is whether the court of appeals' holding that Wis. Stat. § 227.40, a declaratory judgment statute, trumps the PLRA was contrary to rules of statutory construction. Because the PLRA is more specific and passed later in time than § 227.40, it should have been applied to require the prisoner to exhaust his administrative remedies.

I

¶ 2. Spriggie Hensley (Hensley), incarcerated in the Columbia Correctional Institution in Portage County, filed a complaint for declaratory judgment against the Department of Corrections (DOC) in Dane County Circuit Court challenging the validity of two administrative regulations on First Amendment and Equal Protection grounds. The first regulation prohibited prisoners from having pornographic materials while the second prohibited prisoners from having cassette tapes and tape players. The DOC responded with a motion to dismiss because Hensley failed to plead exhaustion of administrative remedies per the PLEA. Although the circuit court found that Hensley stated a claim, it concluded that he was required to exhaust his administrative remedies under the PLRA and therefore dismissed his complaint. Hensley appealed.

¶ 3. The court of appeals reversed the decision of the circuit court. In so doing, the court observed that Hensley claimed the rules "are unconstitutional; and that question is unsuited to resolution through an inmate complaint review process in a particular correctional institution." Hensley, 2000 WI App 189, ¶ 5. The court then found two cases "persuasive" on the issue of exhaustion, Cravatt v. Thomas, 399 F.Supp. 956 (W.D. Wis. 1975), and Green v. Nelson, 442 F. Supp. 1047 (D. Conn. 1977). Hensley, 2000 WI App 189, ¶¶ 6-7. Sharing the "sentiments" expressed in those cases, the court of appeals asserted "that to require Hensley to advance his constitutional challenges to the rules in question before his institution's complaint review committees and appeal personnel as a precondition to raising them is unnecessary." Id. at ¶¶ 7-8. Instead, the court found that Wis. Stat. § 806.04, which sets forth the general rules governing declaratory relief, and Wis. Stat. § 227.40(1), which deals with contesting the validity of administrative rules through declaratory judgment proceedings, trumped the PLRA's exhaustion requirement. Id. at ¶ 3.

¶ 4. We subsequently accepted the DOC's petition for review.

! — I 1 — I

¶ 5. Before reaching the first substantive issue, we must address Hensley's threshold assertion, urged at oral argument, that we should decline to review whether there is a common law futility exception to the PLRA because the underlying dispute in this case has been rendered moot by the implementation of an emergency administrative rule, temporarily supplanting the particular prison rules challenged by Hensley. Wis. Admin. Reg. No. 543 (Mar. 2001). Even though an issue may be moot, this court will nevertheless address that issue if: (1) the issue is of great public importance; (2) the situation occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) the issue is likely to arise again and a decision from the court would alleviate uncertainty; or (4) the issue will likely be repeated but evades appellate review because the appellate process cannot be completed or even undertaken in time to have a practical effect on the parties. State v. Gray, 225 Wis. 2d 39, 66, 590 N.W.2d 918 (1999). Here, the first issue is whether the PLRA applies to a broad class of constitutional challenges raised by prisoners. This issue is likely to arise again and a decision from this court will alleviate uncertainty circuit courts may have on whether they should find that a particular prisoner has exhausted his or her administrative remedies as a precondition for a challenge to a condition of the facility in which he or she is confined. Thus, we will address this issue as presented and briefed by the parties. Id. For the sake of completeness, we will address the second related issue of whether Wis. Stat. § 227.40(1) trumps the PLRA on the requirement of exhaustion.

¶ 6. Hensley asserts that there is common law futility exception to the PLRA's exhaustion requirement. He therefore presents an issue of statutory construction. We review questions of statutory construction de novo. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶ 17, 236 Wis. 2d 473, 613 N.W.2d 591.

¶ 7. The analytical framework for Wisconsin courts when confronted with a dispute that necessarily entails resolution of a point of statutory construction is well-established law. When we are confronted with a case that presents an unresolved point of statutory construction, we engage in statutory interpretation to discern the legislative intent. State v. Sprosty, 227 Wis. 2d 316, 323-24, 595 N.W.2d 692 (1999). As we have previously commented, "[o]ur duty to fulfill legislative intent ensures that we uphold the separation of powers by not substituting judicial policy views for the views of the legislature." Cramer, 2000 WI 86 at ¶ 17.

¶ 8. In adhering to our adjudicative role, we employ our established analytical framework on a point of statutory construction, which avoids invading the province of the legislature. First, we look at the plain language of the statute. Id. at ¶ 18. Where the language of the statute is clear, we do not look beyond the language of the statute to discern legislative intent. Sprosty, 227 Wis. 2d at 324. It is only upon a finding of ambiguity that a court turns to extrinsic materials in order to discern the legislative intent. Cramer, 2000 WI 86 at ¶ 18.

¶ 9. The PLRA, codified at Wis. Stat. § 801.02(7)(b), provides:

No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners.

The plain language of the PLRA here indicates the intent of the legislature. It encompasses all prisoners who challenge "conditions in the facility in which he or she is or has been incarcerated, imprisoned, or detained" through civil actions or special proceedings, as well as common law writs of certiorari. Id. No such proceeding can be commenced unless the prisoner "exhausted all available administrative remedies." Id. The plain language contains no exception regarding futility. It is not within our judicial function to insert the phrase "where they are not shown to be futile" after "administrative remedies" in the statute. Therefore, we conclude that the plain language of the PLRA requires prisoners to exhaust all their administrative remedies prior to challenging a condition in their respective facilities through any civil actions or special proceedings, including common law writs of certiorari.

¶ 10. In interpreting Wisconsin's PLRA on the issue of exhaustion, we can take guidance from the United States Supreme Court's recent interpretation of the federal PLRA, upon which the Wisconsin PLRA is based, in Booth v. Churner, 121 S. Ct. 1819 (2001). See Cramer, 2000 WI 86 at ¶ 38. In Booth, a state prisoner in Pennsylvania brought a 42 U.S.C. § 1983 action in federal court alleging violation of his Eighth Amendment right to be free from cruel and unusual punishment by corrections officers. 121 S. Ct. at 1821. Booth, like Hensley, asserted that he was not required to exhaust his administrative remedies when the "prison's process simply cannot satisfy the inmate's sole demand, the odds of keeping the matter out of court are slim." Id. at 1823. Therefore, the Supreme Court focused on the phrase "administrative remedies. . .available" in the federal PLRA which is the same as "available administrative remedies" in Wisconsin's PLRA. Id. To resolve the issue raised by Booth, the Supreme Court looked to the context of this phrase and the statutory history of the federal PLRA. Id. at 1824. Both points are instructive in the present case regarding Wisconsin's PLRA.

¶ 11. On the first point, the context of the word "exhausted," the Supreme Court noted that "[w]hile the modifier 'available' requires the possibility of some relief for the action complained of. . ., the word 'exhausted' has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered." Id. We adopt the Supreme Court's interpretation of "exhausted" for the Wisconsin PLRA. The word "exhausted" in Wisconsin's PLRA refers to the procedural means, not the specific relief Hensley requested.

¶ 12. On the second point, the statutory history of the federal PLRA, the Supreme Court observed an earlier version gave a court discretion "to require a state inmate to exhaust 'such.. .remedies as are available,' but only if those remedies were 'plain, speedy, and effective.’ 42 U.S.C. § 1997e(a)(1994 edHowever, Congress eliminated the phrase referring to "plain, speedy, and effective" remedies. Id. at 1825. In light of this deletion by Congress, the Supreme Court asserted that "we think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Id. at 1825. In contrast, the Wisconsin PLRA never had any such contingent phrase. Because Wisconsin's PLRA does not contain any contingent language regarding exhaustion, it follows that the PLRA eliminated any common law futility exception in the context of prisoner litigation that may have existed prior to its passage and mandated exhaustion regardless of the relief sought by the prisoner.

¶ 13. But the court of appeals found a futility exception to the exhaustion requirement in Wisconsin's PLRA as asserted by Hensley. Although neither the court of appeals nor Hensley highlight any ambiguity within the statute that enables them to reach beyond its plain language for extrinsic evidence, both cite State ex. rel. Smith v. McCaughtry, 222 Wis. 2d 68, 72, 586 N.W.2d 63 (Ct. App. 1998), as authority for a futility exception to the exhaustion requirement in the PLRA. In Smith, the court of appeals stated that "[f]ailure to plead exhaustion of remedies, where they are not shown to be futile, is fatal to a complaint." Id. In support, the Smith court cited State ex. rel. Braun v. Krenke, 146 Wis. 2d 31, 39, 429 N.W.2d 114 (Ct. App. 1988). Braun, however, was decided prior to the passage of both Wisconsin’s PLRA and the federal PLRA. See Cramer, 2000 WI 86, ¶ 38 (recounting the history and passage of the PLRA). It did not confront the plain unambiguous language present in the PLRA. It follows, then, that this sentence in Smith regarding exhaustion of remedies does not create a futility exception to the exhaustion requirement because it relied on Braun, which was superseded by the legislature's subsequent passage of the PLRA. To the same vein, the court of appeals' reliance on Cravatt, 399 F. Supp. 956, and Green, 442 F. Supp. 1047, is misplaced — both cases were decided prior to the passage of Wisconsin's PLRA and therefore did not confront the plain unambiguous language at bar in the PLRA.

¶ 14. Hensley, however, argues that the PLRA is inapplicable here because it applies to the conditions of confinement in a particular institution. In contrast, he contends, his challenge is statewide and constitutionally based. And "[n]othing in the language of the statute or the pertinent administrative code provisions expressly requires exhaustion when the scope of the challenge is state-wide, and constitutionally based." To be sure, the DOC administrative rules Hensley challenged applied to all correctional facilities under the ambit of the DOC, not just the Columbia Correctional Institution. Nevertheless, Hensley's argument makes a distinction without a difference. The PLRA refers to challenges made "with respect to the prison or jail conditions in the facility in which he or she has been incarcerated, imprisoned or detained." Wis. Stat. § 801.02(7)(b). The plain language of the PLRA, then, does not make the distinction that Hensley presses. That is, so long as the conditions at issue relate to the institution in which the prisoner is incarcerated, the PLRA applies. It is irrelevant whether those conditions relate to other institutions as well.

¶ 15. Finally, Hensley contends that only the courts, not the DOC administrative staff, have the power to declare the rules and procedures unconstitutional. According to Hensley, the alleged inability of the DOC to declare its own rules and procedures unconstitutional renders the exhaustion requirement superfluous. As previously discussed, we reject this argument in light of the Supreme Court's interpretation of "exhausted" in the substantially similar federal PLRA statute.

¶ 16. Moreover, we find that Hensley's argument falls short because the exhaustion requirement does not prohibit prisoners from pursuing constitutional challenges against the DOC; instead, it creates a preliminary procedure that must be completed before a prisoner can mount such a challenge in circuit court. As the seventh circuit observed in interpreting the analogous federal PLRA, "[s]ection 1997e [the federal PLRA] would not be worth much if prisoners could evade it simply by asking for relief that the administrative process is unable to provide. An administrative claim may help to narrow a dispute or avoid the need for litigation." Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 537 (7th Cir. 1999). Hensley would disrupt the sweeping simplicity of the PLRA in order to get into circuit court sooner. By introducing this exception to the exhaustion requirement into Wisconsin's PLRA, Hensley would subvert the legislature's intent and dramatically increase the number of prospective litigants as well as associated costs — which we have previously noted the PLRA was intended to reduce — in order to have his first go before a circuit court rather than a DOC administrator. See Cramer, 2000 WI 86, ¶ 39 (noting that the PLRA "illustrates that the legislature intended to address the costly problems caused by prisoner litigation more expansively than the federal law"). As Judge Easterbrook queried in Perez: "What's the harm in waiting to see how the administrative process turns out?" 182 F.3d at 537. On that same thread, at oral argument, Justice Bablitch asked Hensley's counsel, "as a practical matter, why does Mr. Hensley want to avoid the administrative process?" Hensley's response was essentially that he wanted "to stop this deprivation before it got started." Thus, the crux of Hensley's argument, repeated throughout his brief and again at oral argument, is that the administrative process cannot grant him the relief he requested. But see Booth, 121 S.Ct. at 1823 (federal PLRA "requires a prisoner to exhaust the grievance procedures offered, whether or not the possible responses cover the specific relief the prisoner demands"). He believes that an administrative law judge, in contrast to a circuit court judge, would not have stopped the implementation of the regulations at issue. In short, he rests on his unsupported assumption that the administrative process would be futile. But Hensley cannot know, anymore than we can know, how the administrative process will turn out. His argument against the exhaustion requirement, then, is one sounding in policy rather than law. However, the legislature has already made that policy decision in passing the PLRA and it is the adjudicative role of the courts to apply the plain unambiguous language of the PLRA to the case at hand.

III

¶ 17. Turning to the second issue, which is whether the court of appeals' holding that Wis. Stat. § 227.40(1), a declaratory judgment statute, trumps the PLRA in this context was contrary to rules of statutory construction, we begin with the arguments of Hensley and the State. Hensley maintains that § 227.40(1) is more specific than the PLRA in "terms of the form of relief requested." Hensley further contends that the legislature was aware of this declaratory judgment statute when it passed the PLRA in 1997 and would have made it expressly subject to the PLRA if that was its intention. Finally, Hensley argues that the canon requiring harmonization of conflicting statutes mandates that facial constitutional challenges to statewide rules are exempt from the exhaustion requirement.

¶ 18. The State counters that Wisconsin PLRA is more specific than the declaratory judgment statute and, therefore, under the rule of statutory construction that the more specific statute controls over the more general, is controlling. Furthermore, the State asserts that because the PLRA was enacted later than § 227.40(1), it should control. Finally, the State maintains that the PLRA and the declaratory judgment statute could be harmonized because the PLRA only adds an additional pleading requirement.

¶ 19. It is well-settled "that where two conflicting statutes apply to the same subject, the more specific controls." Jones v. State, 226 Wis. 2d 565, 576, 594 N.W.2d 738 (1999). Importantly, "conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed." Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 553, 150 N.W.2d 137 (1967). It therefore follows that the statutes in question "must be construed in a manner that serves each statute's purpose." Jones, 226 Wis. 2d at 576.

¶ 20. Hensley sought declaratory judgment on the validity of administrative rules; such actions are typically governed by Wis. Stat. § 806.04, which provides the general rules for declaratory relief, and Wis. Stat. § 227.40, which provides the procedures for contesting the validity of administrative rules. In particular, Hensley relies on § 227.40(1), which states that a declaratory judgment may be rendered "whether or not the plaintiff has first requested the agency to pass upon the validity of the rule." According to Hensley, a conflict exists between this language in § 227.40(1) and the PLRA, which mandates that a prisoner exhaust his or her administrative remedies prior to seeking relief in circuit court. Hensley argues that this language in § 227.40(1) trumps the exhaustion requirement in the PLRA. He asserts that the PLRA is not a more specific statute in terms of the form of the relief requested, and therefore, it should not control over § 227.40(1).

¶ 21. We reject Hensley's argument. The rule of statutory construction that a more specific statute controls over a more general statute is not measured by the relief requested, but by the subject matter in question. See Sigma Tau Gamma Fraternity House v. City of Menomonie, 93 Wis. 2d 392, 402, 288 N.W.2d 85 (1980). To be sure, there is a slight overlap between the PLRA and § 227.40(1) in that both relate to bringing causes of actions. However, the PLRA is more specific than § 227.40(1) in that it is targeted at challenges to "conditions in the facility" while § 227.40(1) broadly allows judicial review of any administrative "rule." The PLRA, then, is confined to prison conditions while § 227.40(1) encompasses all rules promulgated by all administrative agencies in Wisconsin. Therefore, the breadth of § 227.40(1) is much greater than the PLRA. That the PLRA trumps § 227.40(1) where challenges are made to a condition in the facility where a prisoner is incarcerated is bolstered by the fact that the PLRA was passed later in time than § 227.40(1). See Martineau v. State Conservation Comm'n, 46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (ruling that a specific statute controls over a general statute is especially true when the specific statute is enacted after the general statute). Accordingly, where a prisoner challenges a condition in the facility in which he or she has been incarcerated, the PLRA controls.

IV

¶ 22. In sum, we rule that pursuant to the plain text of the statute, there is no common law futility exception to Wisconsin's PLRA. Moreover, we find that the recently passed PLRA, which is specifically targeted at requiring prisoners to exhaust their administrative remedies before bringing an action to challenge a condition at the institutions where they are incarcerated or detained, controls over the much broader § 227.40(1), which in some cases allows an individual to obtain declaratory judgment on administrative rules regardless of whether he or she has exhausted all administrative remedies. Accordingly, we find that the PLRA requires Hensley to exhaust his administrative remedies before bringing an action in circuit court.

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

ANN WALSH BRADLEY, J.

¶ 23. (dissenting). Spriggie Hensley sought to constitutionally challenge the facial validity of administrative rules. Apparently, his First Amendment challenge had merit. As the majority opinion explains, that constitutional challenge has been rendered moot by the implementation of an emergency administrative rule suspending the very rule challenged by Hensley. This emergency suspension was the result of a class action lawsuit filed in federal court, challenging the same administrative rule on First Amendment grounds.

¶ 24. Having asserted a meritorious constitutional challenge, this case now only involves the question of what procedural route a prisoner must take in a limited circumstance — when a prisoner raises a constitutional challenge to the facial validity of an administrative rule. I conclude that Wis. Stat. § 227.40(1) is controlling because it more specifically applies to a facial challenge to an administrative rule. Because of the interplay between the PLRA's exhaustion requirements and the Department of Corrections' (DOC) complaint procedure, a conclusion to the contrary would lead to an absurd result. Accordingly, I respectfully dissent.

¶ 25. This case involves the collision of two statutory provisions. On the one hand, the PLRA requires exhaustion of administrative remedies prior to bringing an action in circuit court regarding "prison or jail conditions." Wis. Stat. § 801.02(7)(b). On the other hand, Wis. Stat. § 227.40(1) states that "the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County." Wis. Stat. § 227.40(1) (emphasis added). Under that statute, exhaustion of administrative remedies is expressly not required. Id.

¶ 26. There is an inevitable overlap between these two statutes where a prisoner seeks to challenge the facial validity of a rule relating to prison or jail conditions, as in the case at hand. I agree with the majority that we are to determine which statute is more specific. However, I disagree with the majority as to which aspect of the statutes we are to examine to determine that specificity: the specificity in a prisoner's challenge to a condition of confinement under the PLRA or the specificity in a challenge to the facial validity of a rule under § 227.40(1).

¶ 27. The majority concludes that Wisconsin's PLRA trumps Wis. Stat. § 227.40(1) on the grounds that the PLRA is more specific because it is confined to challenges to prison conditions, whereas § 227.40(1) encompasses all rules promulgated by a Wisconsin administrative agency. While the majority correctly notes that Wis. Stat. § 227.40(1) broadly applies to any administrative agency's rules, it also fails to note thát it quite specifically applies to a challenge to the facial validity of a rule. Likewise, while the majority accurately explains that the PLRA applies to any action by a prisoner relating to the conditions of confinement, it ignores that the PLRA quite generally applies to a broad array of challenges: facial challenges to administrative rules, challenges to the application of administrative rules, and challenges relating to conduct or action of DOC personnel, unrelated to administrative rules.

¶ 28. I believe that we should focus on the application of Wis. Stat. § 227.40(1) to facial challenges addressing the validity of a rule. Ultimately, in resolving the conflict between the PLRA and § 227.40(1) in this case, we are asked to determine which procedure is to be employed in a specific type of challenge. As a result, I believe the nature of that challenge, rather than the substance of the challenge, should be determinative.

¶ 29. I am compelled in this conclusion because a conclusion to the contrary would lead to an absurd result. In interpreting and harmonizing statutes, we are to avoid an interpretation which would lead to an absurd result. Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395 (1999).

¶ 30. Wisconsin Admin. Code ch. DOC 310, which sets forth the inmate complaint procedure that the majority would have an inmate exhaust, requires the filing of a complaint within 14 days of "the occurrence giving rise to the complaint." Wis. Admin. Code § DOC 310.09(3) (Apr. 1998). Presumably, where an inmate seeks to challenge an administrative rule on its face, rather than as applied, "the occurrence giving rise to the complaint" is the promulgation of the challenged rule. Thus, there is no administrative remedy — as a matter of right — to address a facial challenge to a DOC rule after the initial two weeks of the rule's existence. Such a limitation to a constitutional facial challenge is absurd.

¶ 31. Asa result of the majority's decision, a prisoner has only two weeks from the date that the rule is enacted to file a complaint facially challenging the constitutionality of the rule. Such a time limit would require that notice of the enactment be given with relative lightning speed to the prisoners. Such speed is often inconsistent with the realities of prison administration.

¶ 32. Likewise, inconsistent with reality is the requirement that a prisoner challenge the facial validity of a rule within two weeks of its enactment even if a prisoner is not placed in the prison system until years after the enactment. As a result of the majority's decision, absent the good graces of the prison administration to allow for a late filing, there is no avenue, whatsoever, for a person imprisoned more than two weeks after the enactment of the rule to raise a constitutional challenge addressing the facial validity of a rule. This means that meritorious challenges to unconstitutional rules can be forever foreclosed if raised outside the two-week window of opportunity. I do not believe the legislature intended such an absurd result.

¶ 33. While the inmate complaint system is capable of addressing an "as applied" challenge to an administrative rule, to the extent that the DOC complaint procedure forecloses all facial challenges that a prisoner seeks to bring after the initial 14 days of the rule's existence, the system is wholly inadequate to address such a challenge. Because Wis. Stat. § 227.40(1) specifically applies to facial challenges to the validity of an administrative rule and because it does not require exhaustion and therefore does not suffer from the same infirmities as the procedure under the PLRA, I conclude that it should be controlling.

¶ 34. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       The federal PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e (a)(2000). Thus, there is only a slight variation between the federal PLRA and the Wisconsin PLRA statutes. Hensley places great emphasis on the difference between the two statutes, arguing that it undercuts the persuasive force of Booth v. Churner, 121 S. Ct. 1819 (2001), as well as other federal decisions interpreting the federal PLRA. We disagree. Our purpose in interpreting a statute is to discern the intent of the legislature. State v. Sprosty, 227 Wis. 2d 316, 323, 595 N.W.2d 692 (1999). In a case decided just last year, we said that the federal PLRA was the model for the Wisconsin PLRA. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶ 38, 236 Wis. 2d 473, 613 N.W.2d 591. Hensley has presented no special justification that compels us to rescind that recent determination. Accordingly, we find the United State Supreme Court’s recent decision in Booth persuasive on the issue before us: whether a prisoner needs to exhaust administrative remedies when challenging a condition in the facility where he or she has been incarcerated or detained.

       Hensley attempts to distinguish Booth from the present case on the ground that he did not file a claim in federal court or under 42 U.S.C. § 1983, but rather filed under Wis. Stat. § 227.40(1), which allows a challenge to an administrative rule. We find Hensley's distinction lacking because the holding in Booth was not confined to the procedural posture of the specific fact pattern before the court; instead the Booth court discussed the meaning of the word "exhaustion" in the federal PLRA and resolved a split among the federal circuits on that issue. 121 S. Ct. 1819,1824-25. The meaning of the word "exhaustion" in the Wisconsin PLRA is similarly at issue in the present case.

       As noted previously, the Supreme Court also explained that it had granted certiorari to address conflict among the federal circuits on the issue of exhaustion, and in the process, overruled Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998) and Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997), which are relied on by Hensley. Booth v. Churner, 121 S.Ct. at 1822.

       Hensley attempts to buttress his argument on this point by comparing the PLRA with Wis. Stat. § 801.02(7) (1995-96). Hensley notes that in creating the PLRA in 1997, the legislature changed the exhaustion requirement from applying to actions involving DOC personnel to actions involving "the prison or jail conditions in the facility in which he or she is or has been incarcerated." Wis. Stat. § 801.02(7)(b)(1997-98). Nevertheless, Hensley's argument is unpersuasive for two reasons. First, as we observed in Cramer, the PLRA as passed in 1997 was directed at curtailing "frivolous prisoner lawsuits related to prison or jail conditions." 2000 WI 86, ¶ 38 (citing the fiscal estimate LRB 4463/1, 1997 AB 688). Thus, the PLRA is substantively different than Wis. Stat. § 801.02(7) (1995-96), not just a later variation of that statute. Second, the fact that the legislature intended to ground challenges to a specific institution does not imply that the regulation being challenged has to be unique to that institution. As noted above, there is no evidence in the plain language of the statute of such legislative intent.

       The PLRA was first passed in 1997, while Wis. Stat. § 227.40(1) was passed in 1955. See Cramer, 2000 WI 86, ¶ 38; § 13, ch. 221, Laws of 1955; Wis. Stat. § 227.05 (1955).

        See Wis. Admin. Reg. No. 543,4 (Mar. 2001).

         See Aiello v. Litscher, 104 F. Supp. 2d 1068 (W.D. Wis. 2000).

       Wisconsin Admin. Code §DOC 310.09(3) also provides that an institution examiner "may accept a late complaint for good cause." Wis. Admin. Code § DOC 310.09(3) (Apr. 1998).


source: Caselaw Access Project

author:
ANN WALSH BRADLEY, J.
      N. PATRICK CROOKS, J. DIANE S. SYKES, J.

license: Public Domain

text:
    Robert J. Baierl, d/b/a Supreme Builders, Plaintiff-Appellant, v. John McTaggart and Susan McTaggart, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 98-3329.

      Oral argument May 29, 2001.

    Decided July 11, 2001.

    2001 WI 107
    (Also reported in 629 N.W.2d 277.)

      For the defendants-respondents-petitioners there were briefs by David R. Sparer, Jason H. Klimowicz and King Street Law Collective, Inc., Madison, and oral argument by David R. Sparer.

    For the plaintiff-appellant there was a brief by Thomas L. Frenn, Roy H. Nelson and Petrie & Stocking S.C., Milwaukee, and oral argument by Thomas L. Frenn.

    An amicus curiae brief was filed by Teel D. Haas, assistant legal counsel, Wisconsin Department of Agriculture, Trade and Consumer Protection, and oral argument by Teel D. Haas.

    An amicus curiae brief was filed by Laurence J. Dupuis, Jeffrey R. Myer, Mark A. Silverman and Legal

      Action of Wisconsin, Inc., Milwaukee, on behalf of Legal Action of Wisconsin, Inc.
   ANN WALSH BRADLEY, J.

¶ 1. The defendant-tenants, John and Susan McTaggart (McTaggarts), seek review of a published decision of the court of appeals reversing the circuit court's grant of summary judgment in their favor. The McTaggarts assert that the landlord-plaintiff, Robert Baierl (Baierl), d/b/a Supreme Builders, may not enforce a residential lease that includes a provision which is specifically prohibited by Wis. Admin. Code § ATCP 134.08(3) (Apr. 1993). The circuit court agreed and invalidated the lease, concluding that the provision violated § ATCP 134.08(3).

¶ 2. We determine that because the lease includes a provision in violation of § ATCP 134.08(3), the landlord, Baierl, may not enforce the lease against the tenants. Holding the lease unenforceable by the landlord not only advances the intent underlying § ATCP 134.08(3), but prevents the objectives of the regulation from being wholly undermined. Accordingly, summary judgment was properly granted in the McTaggarts' favor and we reverse the decision of the court of appeals.

HH

¶ 3. The controlling facts are not in dispute. In July 1996, the McTaggarts entered into a residential lease with Baierl. Under the lease, the McTaggarts agreed to rent an Oconomowoc apartment owned by Baierl for a period of one year. The lease was to run from August 1,1996, to July 31,1997.

¶ 4. The lease documents consisted of a standard form residential lease and several addenda. Important to our discussion is Addendum A, which contained the following provision purportedly requiring the tenant to indemnify the landlord for all costs and attorneys fees incurred in enforcing the lease agreement:

In the event that Supreme Builders shall be obliged to commence legal action in order to enforce the terms and conditions of any portion of this lease and amendment, the tenant shall be liable to Supreme Builders for all Supreme Builders' costs, disbursements and expenses incurred including, without limitation, reasonable attorney fees incurred.

The provision in the lease is in direct violation of Wis. Admin. Code § ATCP 134.08(3), which prohibits as an unfair trade practice the inclusion of any clause requiring a tenant to pay a landlord's attorneys fees and costs:

ATCP 134.08 Prohibited rental agreement provisions. No rental agreement may:
(3) Require payment, by the tenant, of attorney's fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney's fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

Wis. Admin. Code § ATCP 134.08(3) (Apr. 1993).

¶ 5. In November 1996, the McTaggarts informed Baierl that they would be vacating the apartment in January 1997, prior to the expiration of the lease term. The following January, the McTaggarts vacated the apartment and moved to Ohio for employment reasons. At that time, the McTaggarts instructed Baierl to deduct the January 1997 rent from the security deposit they had paid upon leasing the apartment.

¶ 6. Subsequent to the McTaggarts' premature departure from the apartment, Baierl deducted costs for damages and the January rent from the McTag-garts' security deposit. Unable to re-rent the apartment, Baierl then withheld the remainder of the deposit and sought to enforce the lease. After unsuccessfully demanding payment, Baierl brought this action in Milwaukee County Circuit Court to collect damages under the lease.

¶ 7. In response, the McTaggarts asserted that the lease was void and unenforceable on the grounds that the inclusion of the provision requiring the tenants to pay attorneys fees and costs violated § ATCP 134.08(3). The McTaggarts also counterclaimed that Baierl wrongfully retained their security deposit under § ATCP 134.06 to satisfy rent for which they had no liability under the void lease. Accordingly, they sought double damages and costs and attorneys fees under Wis. Stat. § 100.20(5) (1995-96).

¶ 8. Upon the McTaggarts' motion, the circuit court granted summary judgment in their favor. The circuit court concluded that because the inclusion of that provision was prohibited by § ATCP 134.08(3), the entire lease was void. As a consequence of the invalidation of the lease, the court awarded damages to the McTaggarts in the amount of the security deposit remaining after deduction of the January 1997 rent and other uncontested deductions. Pursuant to Wis. Stat. § 100.20(5), the court doubled these damages and awarded the McTaggarts reasonable attorneys fees.

¶ 9. After unsuccessfully seeking reconsideration of the circuit court's grant of summary judgment, Baierl appealed. In a divided decision, the court of appeals reversed. Baierl v. McTaggart, 2000 WI App 193, 238 Wis. 2d 555, 618 N.W.2d 754. The majority explained that under common law contract principles, as expressed in Simenstad v. Hagen, 22 Wis. 2d 653, 126 N.W.2d 529 (1964), a contract containing an illegal provision may nonetheless be enforced if severance of the illegal provision would not defeat the primary purpose of the contract. 2000 WI App 193, ¶¶ 7-8. The court concluded that the purpose of the lease could be satisfied absent the illegal clause. Id. at ¶ 10. It then examined the equities of this case and determined that given the McTaggarts' breach, the equities favored Baierl. Id. at ¶ 11 & ¶ 13.

¶ 10. The dissent argued that the illegal lease provision could not merely be severed and the remainder of the contract enforced. Id. at ¶¶ 23-31 (Schudson, J., dissenting). To do so, the dissent maintained, undermines the protection provided to consumers by Wis. Admin. Code ATCP ch. 134 and removes the deterrent effect of § ATCP 134.08(3). Id.

II

¶ 11. We review a grant of summary judgment applying the same methodology as employed by the circuit court. Grams v. Boss, 97 Wis. 2d 332, 337 — 39, 294 N.W.2d 473 (1980). Summary judgment is appropriate if the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 12. As a general matter, Wisconsin courts seek to enforce contracts deliberately made by the parties rather than set them aside. Burstein v. Phillips, 154 Wis. 591, 594, 143 N.W. 679 (1913). However, the preference for enforcing bargains may give way where a contract "violates a statute, rule of law, or public policy." Continental Cas. Co. v. Wisconsin Patients Comp. Fund, 164 Wis. 2d 110, 117, 473 N.W.2d 584 (Ct. App. 1991).

¶ 13. In the present case it is undisputed that the inclusion of this lease provision, requiring the tenant to indemnify the landlord for costs and attorneys fees incurred in enforcing the lease, is a violation of Wisconsin law. The Department of Agriculture, Trade and Consumer Protection (Department) has exercised its rule-making authority under Wis. Stat. § 100.20(2)(a) and specifically determined that the inclusion of such a clause in a residential lease is an unfair trade practice. The conduct of inserting the clause into a lease constitutes the violation and is punishable by law. Under § 100.26(3), a person who "neglects or fails to obey any regulation or order" promulgated under § 100.20 is subject to a fine and potential imprisonment. Wis. Stat. § 100.26(3).

¶ 14. The sole disputed question before us is whether Baierl may enforce the lease in light of the illegal inclusion of this lease provision. This presents us with a question of law. We review such questions independently of the legal conclusions reached by the circuit court and the court of appeals. Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 79-80, 591 N.W.2d 583 (1999).

¶ 15. In addressing whether Baierl may enforce the lease, the parties have staked out two divergent positions grounded in Wisconsin case law. On the one hand, Baierl, like the court of appeals majority, relies on the rule of severability articulated in Simenstad v. Hagen, 22 Wis. 2d 653. In Simenstad the court determined that a contract may survive if an illegal clause can be severed from the remainder of the contract without defeating the primary purpose of the bargain. Id. at 662. Baierl argues that here the lease may be enforced, notwithstanding the illegal provision, because that provision is a nonessential clause that is properly sev-erable from the remainder of the lease.

¶ 16. On the other hand, the McTaggarts advance that a violation of an administrative regulation promulgated under § 100.20 results in the unenforceability of a contract. They rely on two cases where that result was obtained. In Perma-Stone Corp. v. Merkel, 255 Wis. 565, 39 N.W.2d 730 (1949), this court declared a home repair contract void where a roofing and siding contractor had required a customer to sign a judgment note as part of the contract, in violation of an administrative regulation directed at that industry. Similarly, in Huff & Morse, Inc. v. Riordon, 118 Wis. 2d 1, 345 N.W.2d 504 (Ct. App. 1984), the court of appeals concluded that an automobile repair shop's violation of a regulation requiring a written estimate prior to repair rendered a contract invalid and prevented the shop from collecting under the contract.

¶ 17. Having examined both parties' arguments, we conclude that neither party's position is tenable as an absolute proposition. Both positions fail to give due consideration to the principle that is ultimately controlling: the intent underlying the statute or regulation that was violated.

¶ 18. The rule of severability announced in Simenstad is not unconditional. Where the illegality of a contractual provision arises from the violation of a statute, the rule of severability is qualified by the controlling statute. See Simenstad, 22 Wis. 2d at 661 ("unless this result is prohibited by statute"). Thus, even if a lease provision is collateral to the underlying bargain of the lease, the severability analysis requires an examination of the controlling statute or, as in this case, the administrative regulation.

¶ 19. The McTaggarts' position also sweeps too broadly. A violation of a regulation promulgated under § 100.20 does not result in per se unenforceability of a contract. We have explained that it is "grave error" to assert that all contracts in violation of a statute are unenforceable. Chapman v. Zakzaska, 273 Wis. 64, 66, 76 N.W.2d 537 (1956). The controlling analysis in determining whether a statutory or regulatory violation renders a contract unenforceable is the intent underlying the provision that was violated. Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106, 117, 203 N.W.2d 728 (1973); Posnanski v. Hood, 46 Wis. 2d 172, 181, 174 N.W.2d 528 (1970) (applying legislative intent analysis to determine whether violation renders lease unenforceable); cf. Huff & Morse, Inc., 118 Wis. 2d at 10 (examining "major purpose" behind administrative regulation).

¶ 20. Moreover, the McTaggarts' arguments have focused on the question of whether the lease is "void." We do not view the question as whether the lease is void, i.e., a legal nullity, because in such case no party could enforce the lease. Where a statute is intended to protect one party to a contract, that party may seek enforcement notwithstanding the violation of the statute enacted for their protection. See Restatement (Second) of Contracts § 179 cmt. c (1981). Thus, the question in this case is not whether the lease is void. If it were, not even the tenants could enforce the lease. The question is one of the enforceability of the lease by Baierl in light of the intent underlying the regulation at issue.

¶ 21. Because it is ultimately the intent underlying the regulation that dictates whether the clause is severable and or whether the inclusion of the clause renders the entire contract unenforceable, we must examine § ATCP 134.08(3). Administrative rules and regulations are construed in the same manner as statutes. Moonlight v. Boyce, 125 Wis. 2d 298, 303, 372 N.W.2d 479 (Ct. App. 1985). It is fundamental that we must favor a construction of a statute or regulation which will fulfill the intent of the statute or regulation over one which defeats its manifest object. Shands v. Castrovinci, 115 Wis. 2d 352, 356, 340 N.W.2d 506 (1983). Where one of several interpretations of a statute or regulation is possible, the court must ascertain the underlying intent from the language in relation to the subject matter, history, and object intended to be accomplished. Id.

¶ 22. We look first to the language of § ATCP 134.08 to determine whether the regulatory violation renders the entire lease unenforceable or whether the illegal clause is properly severable. An examination of the language provides important insight into the nature of the regulatory prohibition. The regulation is entitled "Prohibited rental agreement provisions" and states that "no rental agreement may require" the tenant to be obligated for the landlord's costs and attorneys fees incurred in enforcing the lease. Wis. Admin. Code § ATCP 134.08(3). The language of § ATCP 134.08(3) indicates that the prohibited act is the inclusion of a clause claiming to obligate the tenant to reimburse the landlord's costs and attorneys fees.

¶ 23. The language of the enabling statute, Wis. Stat. § 100.20, also provides insight into the nature of the prohibition in § ATCP 134.08(3). Section 100.20 generally prohibits ”[u]nfair methods of competition and unfair trade practices in business." Wis. Stat. § 100.20(1). The Department is given the mandate of promulgating rules, such as § ATCP 134.08, to proscribe specific unfair trade practices. Wis. Stat. § 100.20(2). Thus, not only is the inclusion of the provision at issue a prohibited act under § ATCP 134.08(3), but it is also properly denominated an unfair trade practice.

¶ 24. While we are able to glean much from the language of the regulation and statute, ultimately § ATCP 134.08 is silent as to the effect of a violation on a residential lease. This silence renders the regulation ambiguous as to its effect, if any, on a lease that violates its provisions. See Forest County v. Goode, 219 Wis. 2d 654, 664, 579 N.W.2d 715 (1998). Accordingly, we turn to the subject matter, history, and object of the regulation to further ascertain the Department's intent.

¶ 25. The subject matter of § ATCP 134.08, and ATCP chapter 134 in general, reflects the Department's foray into the realm of residential landlord-tenant relations, an area fraught with consumer protection concerns. Courts have long acknowledged an inherent inequality of bargaining power between landlords and tenants. See, e.g., Javins v. First Nat'l Realty, 428 F.2d 1071, 1080 (D.C. Cir. 1970). As one court has explained:

Clearly, landlords have greater bargaining power than tenants in residential leases. A tenant must live somewhere. The tenant has no meaningful choices. He can accept this landlord or go to another landlord who charges the same rent and asks the tenant to sign the same standard form lease.

Taylor v. Leedy & Co., 412 So. 2d 763, 766 (Ala. 1982). Thus, when examining the history and object of § ATCP 134.08(3), we bear in mind that the Department regulates against this backdrop. Its regulations are an attempt to alleviate the residential tenant's limited bargaining power. With § ATCP 134.08, the Department has sought to do this by prohibiting as unfair trade practices the inclusion of certain provisions in residential leases.

¶ 26. We next examine the history of § ATCP 134.08(3). That history is well-documented and confirms that the Department sought not only to prevent a source óf unfairness to residential tenants, but also sought the more particularized goal of preventing tenants from being intimidated into forgoing their legal rights.

¶ 27. The Department promulgated § ATCP 134.08 following an extensive study of Wisconsin landlord-tenant relations at the request of the legislature. See Wisconsin Department of Agriculture, Trade and Consumer Protection, Landlord-Tenant Report to the Joint Committee on Finance of the Wisconsin Legislature (Dec. 1, 1978). After holding fact-finding hearings at which landlord and tenant representatives testified, the Department found that among the areas in need of regulation were written lease provisions commonly found in residential leases. Id. at 11. The Department identified certain objectionable provisions, the inclusion of which could be considered unfair trade practices. Id. at 61-62. Among these were provisions that require a tenant to pay all attorneys fees and costs incurred by the landlord in a dispute between the two parties. Id.

¶ 28. In concluding that such clauses could be subject to regulation, the Department noted that residential leases are not usually negotiated contracts, but standard pre-printed form documents. Id. at 60. The Department also focused on witness testimony explaining that the inclusion of objectionable clauses in these form leases, whether or not they are enforced, has the consequence of intimidating tenants into forgoing their legal rights. Id. at 61. The Department placed emphasis on the following testimony:

"The general problem with respect to lease provisions is not only the concessions that they force from tenants but also the extent to which they intimidate tenants from pursing their rights. In other words, many lease provisions have been found to be void because they are either unconscionable or unconstitutional; but their existence in a lease continues to have an unjust effect because tenants believe them to be valid. As a result, tenants either concede to unreasonable requests of the landlords or fail to pursue their own lawful rights."

Id.

¶ 29. The Department also noted testimony from some landlords who explained that these objectionable provisions were not enforced, and therefore caused the tenant no serious problems. Id. at 62. The Department concluded that this fact, if true, merely aggravated the unfairness of these objectionable provisions:

If [these provisions are not actually enforced], however, there can be no explanation for the inclusion of the provisions in the rental agreement, unless they are intended solely for the purpose of intimidation. This purpose, far from legitimizing the provisions, merely compounds the alleged unfairness.

Id. at 62.

¶ 30. The final factor that we examine is the object of the regulation. We are able to accurately identify the object intended by § ATCP 134.08(3) from the documented history of § ATCP 134.08. The regulation was intended not only to prevent the extraction of the concession of reimbursed attorneys fees and costs from tenants by landlords, but also to prevent the chilling effect that the inclusion of a clause claiming to require the payment of attorneys fees and costs has on a tenant's assertion of legal rights. The Department relied on and was persuaded by the fact that, although the clause may be unenforceable, tenants who read such a clause in a residential lease will forgo pursuing their rights under the lease out of fear that they will be forced to bear the landlord's litigation expenses.

¶ 31. This regulatory objective is of particular import in light of the overall statutory and regulatory scheme established to encourage private enforcement of legal rights. The enforcement of private legal rights is a significant goal in the realm of landlord-tenant relations. As this court explained in Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983), the legislature encourages private litigation by tenants to enforce their legal rights through the attorneys fees and double damages provisions of Wis. Stat. § 100.20(5). Private legal actions by tenants not only enforce the individual rights of the tenant, but allow tenants to serve as "private attorneys general," enforcing the tenant rights preserved under the administrative code. Id. at 358. In Shands, we also explained that enforcement of the administrative code through individual actions serves a deterrent effect, curbing impermissible conduct by landlords. Id. Such private action is a necessary backup to state enforcement actions given the limited resources available to the state that prevent state actions against every violator. Id.

¶ 32. As Shands makes clear, private tenant actions are an integral part of the enforcement of ATCP ch. 134. The prohibition of lease provisions tending to intimidate tenants from taking action to enforce their rights must be viewed as part of the overall legislative and regulatory scheme described in Shands.

¶ 33. Having examined the subject matter, history, and object of § ATCP 134.08(3) to determine the intent underlying the regulation, we conclude that enforcement of a lease containing the prohibited provision would not only fail to advance the goals of § ATCP 134.08(3), but would undermine them entirely.

¶ 34. The Department sought to eliminate such clauses and the intimidation of tenants that the inclusion of such unenforceable clauses poses. However, were we to allow the clause to be severed and the remainder of the lease to be enforced, neither of those goals would be advanced. The prohibited clauses, the inclusion of which constitutes an unfair trade practice, would continue to appear in leases. Landlords would have little incentive to omit such clauses and change their practice. A landlord could insert the clauses with relative impunity, knowing that the court will merely ignore this unfair trade practice by severing the clause.

¶ 35. Not only would landlords likely suffer no consequences from the violation, but they would also reap the unfair benefit of the clause's inclusion — the potential intimidation that such a clause poses. By the undeterred inclusion of such clauses, tenants may continue to be intimidated into forgoing their legal rights. Thus, the Department's goal of eliminating tenant intimidation would be frustrated.

¶ 36. Allowing the clause to be severed and the remainder of the lease to be enforced by the landlord also undercuts the effectiveness of the private enforcement contemplated under the regulatory scheme. In other contexts, we have relied upon the existence of administrative enforcement proceedings to conclude that certain legal violations are to be enforced solely by the governmental agency and not by a tenant through invalidation of a lease. Posnanski, 46 Wis. 2d at 181-82. However, in the present context, we cannot ignore that "[pjrivate tenant actions constitute an enforcement mechanism reinforcing that of the justice department." Shands, 115 Wis. 2d at 358-59. In light of the Department's concerns regarding tenant intimidation, permitting a landlord to enforce a lease containing the prohibited provision counteracts the larger goal of encouraging tenant enforcement of the administrative code to deter unlawful conduct on the part of landlords and to enforce public rights. See Shands, 115 Wis. 2d at 358.

¶ 3 7. Given the effect that severance of the illegal clause and enforcement of the remainder of the lease would have on the policy goals of the Department, we conclude that § ATCP 134.08(3) did not intend such a result. Thus, the illegally included lease provision cannot merely be severed and the remainder of the lease enforced. Because the enforcement of the lease would defeat the objectives of the regulation, we determine that the illegal inclusion of the provision renders the contract unenforceable by Baierl.

¶ 38. Finally, we note that Baierl is not being made victim of an obscure regulatory provision of which he could not be expected to be aware. Section ATCP 134.08 has been in existence since 1980, and its terms are made known to the public through Department publications. See Wisconsin Department of Agriculture, Trade & Consumer Protection, The Wis- cousin Way: A Guide for Landlords and Tenants 17, 28 (Aug. 1999).

¶ 39. On the other hand, we also acknowledge that the McTaggarts failed to live up to the terms of their bargain. Nevertheless, the controlling factor is the intent of the Department. That intent does not exclusively address tenants such as the McTaggarts who abandon their contractual obligations. Rather, that intent speaks to the tenants from whom the courts potentially will never hear — tenants who, in the determination of the Department, will forgo their legal rights when faced with a provision that states that they are responsible for their landlord's litigation costs. It is for those tenants that the intent of § ATCP 134.08(3) must be effectuated.

III

¶ 40. In sum, we determine that a landlord who includes a provision specifically prohibited by Wis. Admin. Code § ATCP 134.08(3) in a residential lease may not enforce the terms of that lease. Having examined the underlying intent of § ATCP 134.08(3), we determine that allowing the enforcement of such a lease would not only fail to advance the intent of that regulation, but would undermine its objectives completely. We thus conclude that the circuit court properly granted summary judgment in the McTag-garts' favor. Accordingly, we reverse the decision of the court of appeals.

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

N. PATRICK CROOKS, J.

¶ 41. (concurring). I agree with the majority's decision and write separately to make two additional points. First, the majority opinion should be a clarion call to landlords across the state to review their residential lease forms and ensure that they comply with Wis. Admin. Code § ATCP 134.08, so as not to have their leases inadvertently invalidated as a result of noncompliance.

¶ 42. Second, I write separately to emphasize that nothing in the majority's opinion forecloses a landlord from pursuing non-contract remedies, e.g., quantum meruit, should a residential lease be found invalid because it violates Wis. Admin. Code § ATCP 134.08. Wisconsin courts have long recognized that where there has been a violation of a regulation, such as the one we have here, there may be recovery based upon quantum meruit. In Zbichorski v. Thomas, 10 Wis. 2d 625, 626, 103 N.W.2d 536 (1960), the defendant claimed that the contract she had with the plaintiff to replace the siding on her house with aluminum siding, and to do other work, was illegal. The claimed illegality was based upon a violation of a Wisconsin Department of Agriculture regulation, which required that contracts involving the sale of siding should be in writing, and that a correct copy should be left with the customer. Id. at 627. This court indicated that the plaintiff may be able to recover from the defendant based upon a claim of quantum meruit, even if it was determined that the contract was illegal. Id. at 626-27. The court of appeals has concluded that quantum meruit may be available as a means for an auto repair shop to recover for repairs done, even though the shop failed to comply with a Wisconsin Department of Agriculture regulation requiring the shop to provide a written estimate. See Huff & Morse, Inc. v. Riordon, 118 Wis. 2d 1, 345 N.W.2d 504 (Ct. App. 1984). Similarly, quantum meruit could provide a landlord whose residential lease is invalid with the means to bring a claim for recovery of rent owed.

¶ 43. Here, after the circuit court concluded that the lease was void, the court found that quantum meruit was proper. The court also found that, as a result, Baierl was entitled to the payment of rent through the end of January, 1997, and payment for other miscellaneous items. (See R. at 31:27.) Indeed, the McTaggarts did not contest the payment of rent for the time they lived in the apartment, or the payment of the other items, which were deducted from their security deposit. See majority op. at ¶ 8. They only contested Baierl's attempt to withhold the remainder of their deposit as rent for those months after they vacated the apartment. Quantum meruit was properly applied here, and it is worth reiterating that the majority's decision today does not bar such recovery.

¶ 44. For the reasons stated herein, I respectfully concur.

¶ 45. I am authorized to state that Justice JON P. WILCOX joins this opinion.

DIANE S. SYKES, J.

¶ 46. (dissenting). I respectfully dissent. The consumer protection code provides protection against unfair trade practices by, among others, landlords. The majority opinion allows the tenants in this case to use the code not as a shield against an unfair trade practice by their landlord, but as a sword to escape legal responsibility for breaching their lease, and worse, as a means of enriching themselves in the process.

¶ 47. According to the majority, even though the McTaggarts inexcusably walked out on their lease more than six months early, they are entitled to 1) avoid liability for their intentional breach of lease; and 2) recover from their landlord double their security deposit, plus costs and actual attorneys' fees. In other words, the tenants intentionally inflicted a financial loss on the landlord, and the court says the landlord is not only precluded from recovering but is in fact required to pay the tenants who committed the breach in the first place, and who suffered no financial loss at all.

¶ 48. Surely the law does not allow, much less compel this bizarre result. This is nothing but a game of legal "gotcha." An enterprising tenants' attorney, his clients clearly in the wrong, scoured the fine print in the lease and found an obscure, absolutely unessential but nevertheless prohibited clause, and on that basis succeeded in persuading the trial court and five members of this court to deny enforcement of the entire lease, rather than simply invalidate the prohibited clause. This means the tenancy was month-to-month, and the McTaggarts win a windfall judgment of twice their security deposit, costs, and actual attorneys' fees.

¶ 49. Yes, the lease contains an addendum, which contains a clause, which contains a provision purporting to require the tenant to pay costs and attorneys' fees if the landlord ever had to take the tenant to court to enforce the lease. It is clause number 17 (of 27) in Addendum A (there is also a "B" and a "C-2"), and it is definitely prohibited by the consumer code, Wis. Admin. Code § ATCP 134.08(3)(Apr. 1993). The landlord would never be able to enforce such a provision in a court of law. Indeed, the landlord did not try to enforce it in this case.

¶ 50. How this insignificant little clause buried in a six-page lease provides an excuse for the tenants' flagrant breach of lease — much less a basis for them to recover when they have suffered no loss whatsoever — is beyond me. I agree with the court of appeals' conclusion that, because the prohibited clause is nonessential, does not relate to the primary purpose of the bargain, and was not the result of moral turpitude, it can be severed, and the rest of the lease survives its severance. This is, in fact, the common law rule, as reflected in the Restatement of Contracts:

§ 603 UNESSENTIAL ILLEGAL PROVISION
A bargain that is illegal only because of a promise or a provision for a condition, disregard of which will not defeat the primary purpose of the bargain, can be enforced with the omission of the illegal portion by a party to the bargain who is not guilty of serious moral turpitude unless this result is prohibited by statute. Recovery is more readily allowed where there has been part performance of the legal portion of the bargain.

Restatement of the Law of Contracts § 603 (1932).

¶ 51. We cited and applied this rule of severability in Simenstad v. Hagen, 22 Wis. 2d 653, 126 N.W.2d 529 (1964). Simenstad is factually distinguishable, but I see no reason why the common law rule of severability that it applied should not also apply here. This particular clause is unrelated to the primary purposes and conditions of the lease, and therefore Perma-Stone Corp. v. Merkel, 255 Wis. 565, 39 N.W.2d 730 (1949), and Huff & Morse, Inc. v. Riordon, 118 Wis. 2d 1, 345 N.W.2d 504 (Ct. App. 1984), are distinguishable.

¶ 52. There is nothing in the text of the applicable statutes or rules that precludes severability or authorizes denying enforcement of the entire lease. See Wis. Stat. §§ 100.20(2) and (5), 100.26(3) (1995-96); Wis. Admin. Code § ACTP 134.08. The statutes provide for public remedies for unfair trade practice violations, including fines and incarceration. Wis. Stat. § 100.26(3). The statutes also specify a private remedy (suit for double damages, costs and reasonable attorneys' fees), but only for persons "suffering pecuniary loss because of [an unfair trade practice] violation." Wis. Stat. § 100.20(5). The statutes and rules are silent, however, on the issue of how a violation affects the enforceability of a contract. The question, therefore, is whether the lease as a whole, or just the prohibited provision, is unenforceable by the landlord.

¶ 53. I am not persuaded by the rationale of the majority that applying the common law rule of sever-ability in this context would defeat the purpose of the regulatory scheme. Severance of the prohibited clause does not exacerbate unequal bargaining power between landlords and tenants, increase landlord intimidation of tenants, or produce a chilling effect on the assertion of tenants' rights. See majority op. at ¶¶ 25-30.

¶ 54. Landlords who commit unfair trade practices can be prosecuted by the state and sued by their tenants when the tenants suffer pecuniary loss as a result of the landlord's conduct. The majority opinion accurately notes the so-called "private attorneys general" function of the private right of action under the consumer protection code. Majority op. at ¶¶ 31-32. But here, the tenants caused a pecuniary loss, they did not suffer one themselves. The McTaggarts did not sustain any financial loss because of the landlord's inclusion of the illegal attorneys' fees provision in the lease. I doubt they even knew it was there. The landlord never sought or threatened to enforce it. The "loss" only arises if the McTaggarts are allowed to use the attorneys' fees clause as a basis to invalidate the entire lease, thus requiring return of their security deposit. This case represents creative lawyering, but bad precedent.

¶ 55. Under the circumstances of this case, the court should enforce the contract — -minus the prohibited clause — in a way that is consistent with its terms, with the law and the facts, with logic and with common sense. It declines to do so. I would affirm the court of appeals.

¶ 56. I am authorized to state that Justice DAVID T. PROSSER joins this dissenting opinion.

         Baierl v. McTaggart, 2000 WI App 193, 238 Wis. 2d 555, 618 N.W.2d 754 (reversing judgment of Circuit Court for Milwaukee County, Judge Charles F. Kahn, Jr., presiding).

       All subsequent references to Wis. Admin. Code §ATCP 134.08(3) are to the April 1993 version in effect at the time the lease was entered.

       Wisconsin Admin. Code §ATCP 134.06(3)(a) states, in pertinent part:
      (3) SECURITY DEPOSIT WITHHOLDING; RESTRICTIONS.
      (a) A landlord may withhold from a tenant's security deposit only for the following:
      2. Unpaid rent for which the tenant is legally responsible, subject to s. 704.29, Stats.
      Wis. Admin. Code § ATCP 134.06(3)(a)2 (June 1999).

       All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise noted.

       At oral argument, Baierl clarified that he did not dispute the circuit court's calculation of damages, but rather only the legal premise on which they were awarded. Accordingly, because we ultimately agree with the circuit court that Baierl may not enforce the lease provisions, we need not revisit the circuit court's calculation of damages.

       The quoted testimony was that of Attorney Robert Andersen, Legal Action of Wisconsin, Legislative and Administrative Representation Program.

        Quantum meruit is defined as a "claim or right of action for the reasonable value of services rendered." Black's Law Dictionary 1255 (7th ed. 1999). Black's also notes that "[qjuantum meruit is still used today as an equitable remedy to provide restitution for unjust enrichment. It is often pleaded as an alternative claim in a breach-of-contract case so that the plaintiff can recover even if the contract is voided." Id.