author: WEDEMEYER, P.J. FINE, J.

text:
    In the Matter of the Estate of Carl Flejter, Deceased: Patricia A. Flejter, Appellant. v. Estate of Carl Flejter, by its Personal Representative, Diane Migacz, Respondent.
    Court of Appeals

      No. 99-2863.

      Submitted on briefs October 3, 2000.

    Decided December 5, 2000.

    2001 WI App 26
    (Also reported in 623 N.W.2d 552.)

      On behalf of the appellant, the cause was submitted on the briefs of Bruce A. Tammi of Tammi, Cohn & Cavey, Milwaukee.
    On behalf of the respondent, the cause was submitted on the brief of Charles H. Barr of Croen & Barr LLP, Milwaukee.
    Before Wedemeyer, P.J., Fine and Curley, JJ.

      Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. Patricia A. Flejter appeals from that part of an order for summary judgment concluding that the personal representative of the Estate of Carl Flejter timely served and filed an objection to her claim. She also appeals from that part of a judgment denying her claim to the proceeds of an insurance policy and her claim for reimbursement for real estate taxes paid.

¶ 2. Patricia raises two issues: (1) whether the trial court erred as a matter of law when it concluded that the personal representative's objection to her claim against the estate was timely filed; and (2) whether the trial court improperly construed the final stipulation in the judgment for divorce to deny her proceeds from a life insurance policy; and to deny her reimbursement for real estate taxes she paid on her homestead. Because the trial court did not err in any respect, we affirm.

I. BACKGROUND

¶ 3. Patricia and the decedent, Carl, were divorced by a judgment entered February 15,1979. The divorce judgment incorporated a final stipulation signed by both parties. The final stipulation was drafted by Patricia's attorney. Carl died on July 5, 1997.

¶ 4. On November 11, 1997, the personal representative filed an application for informal administration of Carl's estate. Pursuant to statute, the probate registrar set November 19, 1997, as the date for barring claims. On November 11, 1997, Patricia filed a claim against the estate for $65,774, which was later reduced by amendment to $57,001.13. On November 12, 1997, Patricia's counsel mailed a copy of the claim to the attorney for the estate. On January 14, 1998, the personal representative served and filed an objection to the claim and demanded formal proceedings. After discovery, both parties moved for summary judgment. The issue of whether the objection to the claim was timely served and filed was raised for the first time in Patricia's summary judgment brief.

¶ 5. After hearing the summary judgment motion, the trial court ruled that the objection was timely filed. The court also found that the documentary evidence from the Social Security Administration, and the testimony of the personal representative, established that Carl was in fact, disabled. No other issues were decided at that hearing.

¶ 6. The contested claim, however, proceeded to a bench trial. As pertinent to this appeal, the claim consisted of: (1) fourteen alleged payments of real estate taxes for the claimant's homestead for the years 1992 through 1996; and (2) proceeds of an insurance policy on Carl's life in the amount of $15,000. After hearing the evidence, the trial court dismissed Patricia's claim in its entirety. She now appeals.

II. DISCUSSION

A. Objection to Claim.

¶ 7. Patricia first contends that the trial court erred when it found that the personal representative's objection to her claim was timely pursuant to WlS. STAT. § 859.33(1) (1997-98). She states her counsel filed her claim on November 11, 1997, and mailed a copy of the claim to the estate's counsel on November 12, 1997. The estate objected on January 14, 1998, sixty-three days after Patricia filed her claim. Patricia argues that the estate's objection violated the sixty-day deadline set forth in § 859.33(1). The trial court found that the objection was timely because it was served on Patricia by mail, thereby triggering the three-day mailing extension in § 801.15(5)(a).

¶ 8. Patricia claims that the trial court's application of the three-day mailing extension is not supported by the language of Wis. STAT. § 859.33, its legislative history, or Wisconsin case law. The estate responds that Wis. Stat. § 801.15(5)(a), which applies generally to all civil proceedings, permits adding on three extra days to the deadline for the objection because service by mail is permitted under § 859.33(1). Thus, the objection was timely executed. We conclude that the trial court did not err in applying § 801.15(5)(a) to the sixty-day deadline for objections in § 859.33(1).

STANDARD OF REVIEW

¶ 9. The issue in this case involves statutory construction, which presents a question of law. See Sprague v. Sprague, 132 Wis. 2d 68, 71, 389 N.W.2d 823, 824 (Ct. App. 1986). We review questions of law independent of the trial court's decision, although we often profit greatly from the trial court's careful and thorough analysis.

¶ 10. "Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible." N. SINGER, 2B SUTHERLAND ON Statutes and Statutory Construction § 51.02, at 122 (5th ed. 1992); see also State v. Wagner, 136 Wis. 2d 1, 5, 400 N.W.2d 519 (Ct. App. 1986). "Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. To be in pari materia, statutes need not have been enacted simultaneously or refer to one another." SUTHERLAND, §51.03.

¶ 11. In State Farm Mutual Automobile Ins. Co. v. Kelly, 132 Wis. 2d 187, 389 N.W.2d 838 (Ct. App. 1986), quoting SUTHERLAND, we stated:

When determining the meaning and effect of statutory sections in pari materia,
"[i]t is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes. Thus, they all should be construed together."

Id. at 190 (citation omitted). Professor Sutherland further instructs that:

"General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail."

State v. Amato, 126 Wis. 2d 212, 217, 376 N.W.2d 75 (Ct. App. 1985) (emphasis omitted).

ANALYSIS

¶ 12. Patricia contends that the sixty-day deadline in WlS. Stat. § 859.33(1) cannot be extended by the three-day mailing provision ofWlS. Stat. § 801.15(5)(a). This court disagrees with that assertion. First, the rules of civil procedure, which encompass WlS. STAT. chapters 801-847, apply in all civil actions and special proceedings, except where a different procedure is prescribed by statute or rule. See WlS. STAT. § 801.01(2). Probate proceedings are special proceedings to which the rules of civil procedure apply. See Estate of Stoeber v. Pierce, 36 Wis. 2d 448, 452, 153 N.W.2d 599 (1967). There is no language in § 859.33(1) prohibiting the application of the three-day mailing extension.

¶ 13. Second, an examination of the development of the two statutes throughout the course of history demonstrates that the two statutes are not in conflict with each other and, in fact, can be read in harmony consistent with the trial court's decision in this case. Because we conclude that the statutes do not actually conflict, the statutory construction rule indicating that specific statutes control over general statutes does not apply. See Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 22, 353 N.W.2d 812 (Ct. App. 1984). Here there is no dispute that mailing is an alternative method of service for personal service in civil actions and special proceedings. In a historical context, from the earliest years of our state's existence, service by mail has been recognized as an alternate method of service of process.

¶ 14. The key feature associated with service by mail is extending the time for a response, under the theory that service is complete at the moment of mailing. The general concept of adding time to documents served by mail was part of the original Field Code. Laws of 1856, ch. 120, § 315. The Field Code had an add-on provision of one day per fifty mile formula for mail service. See id. When the legislature adopted the Field Code, it rejected the per/mile formula and instead "simply doubled the time required when personal service was used" for a response. Charles D. Clausen & David P. Lowe, The New Wisconsin Rules of Civil Procedure Chapters 801-803, 59 Marq. L. Rev. 31 (1976). In 1956, by supreme court rule, WlS. STAT. § 269.36 (1955) was amended to replace the "doubling rule" with a five-day extension to the deadline when documents were served by mail. See id. The current three-day add-on for mailing provision contained in WlS. STAT. § 801.15(5) was created by supreme court order effective January 1, 1976. See id. The Judicial Council felt that three extra days for mailing was sufficient. See id. Thus, it can be seen that the "add-on" feature, when service is accomplished by mail, has been a constant part of our procedural statutory history.

¶ 15. The procedure, however, for filing' a claim against an estate and serving an objection to it was not introduced until May 1, 1953, by supreme court order. It was codified as WlS. STAT. § 313.05(3). As pertinent to our analysis, this subsection provided that the personal representative could contest a claim by mailing a copy of the objection to the claimant within sixty days after either the time limited by the court for filing claims, or any order extending the time for filing the claim.

¶ 16. In 1969, WlS. STAT. § 313.05(3) was repealed and recreated as WlS. STAT. § 859.33. The mailing provision was retained, and the alternative method of personally serving the objection upon the claimant by the personal representative was added. Either method had to be accomplished "within 60 days after the last date for filing a claim or 60 days after a copy of the claim has been served upon the personal representative, whichever expires last." Laws of 1969, ch. 339, § 859.33(1).

¶ 17. In 1973, the statute was amended to provide that if a notice of claim was served upon the personal representative or attorney for the estate, any objection to the claim had to be served or mailed to the claimant within sixty days of the last date for filing a claim. See Laws of 1973, ch. 233, § 4.

¶ 18. In 1989, WlS. Stat. § 859.33 was amended again to expressly provide an alternate method of initiating a claim by mail. This is the current version of the statute, which provides in pertinent part:

[I]f a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection . . . shall be served upon or mailed to the claimant. . . within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate.

WlS. Stat. § 859.33(1) (emphasis added). This provision provided a triggering event for calculating the time in which an objection must be made other than by personal service.

¶ 19. There is no doubt that the "add-on" provision in the case of service by mail had been a feature of our statutory procedural law for decades before the procedure for handling contested claims appeared in our statutes. On four separate occasions, while both provisions coexisted, our Legislature and Supreme Court have reviewed the procedure for processing claims in probate proceedings. Nevertheless, with the presumed knowledge of the mailing "add-on" provision and its consequences, neither governmental body has addressed any apparent conflict between the two statutes. If the legislature did not want § 801.15(5)(a)'s three-day mailing provision to apply to § 859.33(l)'s sixty-day time deadline, it easily could have amended either statute to so indicate.

¶ 20. Initiating the filing of a claim by mail in a probate proceeding starts the clock running for asserting any objection to the claim. Because service is complete by the act of mailing, yet its date is initially unknown by the intended recipient, WlS. STAT. § 801.15(5)(a) operates to equalize service by mail with ordinary personal service, where the person served knows the exact date on which the response time begins to run. We conclude that any alleged conflict is only superficial and the statutes are not inconsistent. Thus, the two statutes are not in conflict and ought to be construed in harmony.

¶ 21. Patricia cites Leonard v. Cattahach, 214 Wis. 2d 236, 248, 571 N.W.2d 444 (Ct. App. 1997) for the proposition that a twenty-day period for an insurer to answer a summons and complaint mailed to it under WlS. Stat. § 601.73 is not extended by the three-day rule of WlS. Stat. § 801.15(5)(a). Therefore, she argues, the sixty-day period in WlS. STAT. § 859.33(1) ought not be extended in the case of objecting to a claim filed against an estate. Because Leonard is clearly distinguishable from the facts in the instant case, we are not convinced.

¶ 22. In Leonard, the insurer was deemed served for the purpose of commencing a cause of action by the substitute service provision of WlS. STAT. § 601.73(1). See id. at 242. Under § 601.73(2)(b), after the insurance commissioner has been served with two copies of the summons and complaint, he or she is required to mail a copy to the insurer who, in turn, is required to answer within twenty days of service. See id. In Leonard, the insurer failed to serve and file an answer within the twenty-day period; therefore, the victim of a default judgment argued that WlS. STAT. § 801.15(5)(a) added three days to the twenty-day period. See id. at 246-47.

¶ 23. We found that Wis. Stat. § 801.15(5)(a) did not apply because the mailing from the commissioner's office to the insurer, after it accepted service on the insurer's behalf, did not constitute "service of a notice or other paper," which is the language used in § 801.15(5)(a). See Leonard, 214 Wis. 2d at 247-48. We also held that § 801.15(5)(a) does not apply when special rules require service to be effected through the commissioner. See id.

¶ 24. Unlike Leonard, Patricia's mailing of her claim to the personal representative, and the response objecting to the claim, constituted "service of a notice or paper," as that phrase is used in WlS. STAT. § 801.15(5)(a). Thus, our decision in Leonard, consistent with earlier case law, supports the estate's position and § 801.15(5)(a) does apply here.

¶ 25. In First Wisconsin National Bank v. Nicholaou, 87 Wis. 2d 360, 364-65, 274 N.W.2d 704 (1979), our supreme court held that Wis. Stat. § 801.15(5)(a) was inapplicable to a petition for review of a court of appeals decision because WlS. STAT. § 808.10 provides that the time limit runs from the date of the decision of the court of appeals, not from the date of service or receipt of the opinion. Similarly, in Fredrick v. City of Janesville, 91 Wis. 2d 572, 577-78, 283 N.W.2d 480 (Ct. App.), rev'd on other grounds, 92 Wis. 2d 685, 285 N.W.2d 655 (1979) we declared that § 801.15(5)(a) was inapplicable to save a filing of a notice of appeal because the time for appeal runs from the date of entry of an order or judgment, not from the date of service by mail of the notice of entry of the order or judgment.

¶ 26. The holdings in these cases lead to a simple conclusion: the "add-on" provision of WlS. STAT. § 801.15(5)(a) will apply only when service by mail is the triggering event for the counting of time in which an action is required. That condition is exactly what was present here. Therefore, we conclude that the trial court did not err when it applied the three-day mailing extension in this case.

B. Life Insurance Proceeds.

¶ 27. Next, Patricia asserts that the trial court erred when it construed paragraph seven of the stipulation incorporated in the judgment of divorce to deny her the proceeds of a $15,000 life insurance policy. We are not convinced.

STANDARD OF REVIEW

¶ 28. Judgments are construed at the time of their entry and in the same manner as other written instruments. See Wright v. Wright, 92 Wis. 2d 246, 255, 284 N.W.2d 894 (1979). Whether a judgment is ambiguous is itself a question of law. See Washington v. Washington, 2000 WI 47, ¶ 26, 234 Wis. 2d 689, 611 N.W.2d 261. Words or phrases are ambiguous when they are reasonably or fairly susceptible to more than one construction. If a judgment is ambiguous, construction is allowed and the court will consider the whole record, including pleadings, findings of fact, and conclusions of law. See Wright, 92 Wis. 2d at 255. Lastly, the construction of a document that gives reasonable meaning to all provisions is preferable to one that leaves part of the language useless or inexplicable or creates surplusage. See Goldmann Trust v. Goldmann, 26 Wis. 2d 141, 147, 131 N.W.2d 902 (1965).

ANALYSIS

¶ 29. The paragraph of the stipulation in question reads:

The defendant [Carl] shall be awarded the following life insurance policies and he shall name and designate the plaintiff as beneficiary, and the minor children of the parties as secondary beneficiaries of the same during his lifetime, without hypothecation, but with the exception that if the defendant became disabled, the defendant would remain the beneficiary.
American Bankers Life Assurance of Florida
Policy No. 127854
Face Amount $15,000.

Specific to our analysis are the two clauses, "but with the exception that if the defendant became disabled, the defendant should remain the beneficiary." We agree, as did the parties, that these two clauses, when read together, are ambiguous.

¶ 30. Ambiguity is present for several reasons. First, while Carl can be the owner of a life insurance policy, it is an impossibility for him to also be the beneficiary. Second, in the divorce judgment, Carl was not named as the beneficiary of any life insurance policy. Third, although the divorce judgment named Carl as the owner of various life insurance policies, it required him to name his former wife and his minor children as beneficiaries of the policies. The trial court construed the ambiguity to mean that if Carl became disabled, he could name his estate as the beneficiary of the policy. We agree that this is the correct interpretation.

¶ 31. Patricia concedes that the provisions of the judgment of divorce and the terms of the stipulation incorporated within it were the product of negotiation. Three life insurance policies were part of the marital assets. Patricia was awarded one policy without any conditions attached. Carl was awarded the other two policies, but he had to designate Patricia and their minor children as the beneficiaries. Unlike the first policy awarded to Patricia, the latter two had a qualification attached, which indicated that Carl would remain the beneficiary if he became disabled. Regardless of how inaccurately this condition was drawn, the fact remains it was bargained for, agreed upon, and remains a condition that cannot be written out of the stipulation.

¶ 32. Because it is clear that two of the policies were created by mutual agreement to allow Carl to retain some ownership benefits in the policy in the event of disability, it necessarily follows that he retained the ability to designate his estate as the beneficiary of the policies either expressly or by default. Construing the ambiguity in favor of the estate, however, does not end our analysis. The question of proof of "disability" must also be resolved.

¶ 33. Patricia contends that there was insufficient evidence to support the trial court's finding that Carl was disabled. Specifically, she argues that the trial court erred by admitting into evidence a Notice of Award of Disability Benefits addressed to her former husband. She asserts the trial court found that Carl was disabled solely based on the notice, which was erroneously admitted. We are not persuaded.

¶ 34. When reviewing trial court rulings regarding the admissibility of evidence, we use the erroneous exercise of discretion rubric. In evidentiary matters, vve shall not reverse an erroneous exercise of a discretionary ruling unless it is prejudicial to the adverse party; that is, the result might, within reasonable probabilities, have been more favorable to the complaining party had the error not occurred. See First Federal Financial Serv., Inc. v. Derrington's Chevron, Inc., 230 Wis. 2d 553, 566, 602 N.W.2d 144 (Ct. App. 1999). Findings of fact are reviewed under the clearly erroneous standard. See State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997).

¶ 35. Patricia contends that the contents of the notice of award are inadmissible hearsay. While conceding in her reply brief that the notice was authenticated by the personal representative, she claims it was never authenticated as a public record or some other exception to the hearsay rule to make the contents of the notice admissible. Thus, she argues there is no proof of disability to support the estate's entitlement to the life insurance proceeds. For several reasons, we reject this assertion of error.

¶ 36. Wisconsin Stat. § 909.01 reads: "The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." WISCONSIN Stat. § 909.015 sets forth various standards applied to achieve authentication or identification to satisfy § 909.01. Among the various categories of standards are: (1) testimony of witness with knowledge; (2) distinctive characteristics and the like; and (3) public records or reports. See id.

¶ 37. Applying these standards to the record before us relating to the admission of the notice, we note the following. The personal representative testified that she and Carl had lived together since 1988. He retired from his job because of liver cancer. As the result of his condition, he was filled with fluid and experienced trouble walking and sitting. At the end of May 1997, she took him to a social security office to apply for disability benefits. On July 5,1997, Carl died from liver cancer. After the date of death, she opened a letter addressed to Carl. The envelope containing the letter bore the name and address of the Social Security Administration. The letterhead itself indicates it was from the Social Security Administration's regional office. The letter was entitled Notice of Award and informed Carl that the agency had made a finding that, as of May 27, 1997, under its rules, he had been found to be disabled. It further set forth the date Carl would start receiving benefits and what his appeal rights were if he disagreed with the amount and terms of payment contained within the findings.

¶ 38. From this recitation, we conclude that the personal representative had direct knowledge of Carl's disabling condition. This is sufficient to sustain the trial court's finding that Carl was in fact disabled. The testimony also provides sufficient evidence to satisfy authentication of the document, given the distinct nature of the letterhead, and its contents. Therefore, the trial court did not erroneously exercise its discretion when it admitted the document.

C. Real Estate Taxes.

¶ 39. Lastly, Patricia contends that the trial court erred when it concluded that the doctrine of laches operated to bar her claim seeking reimbursement for real estate taxes she paid on the homestead. We are not persuaded.

STANDARD OF REVIEW

¶ 40. The doctrine of laches has been defined as: "[A] recognition that a party ought not to be heard when he has not asserted his right for unreasonable length of time or that he was lacking in diligence in discovering and asserting his right in such a manner so as to place the other party at a disadvantage." Bade v. Badger Mut. Ins. Co., 31 Wis. 2d 38, 47, 142 N.W.2d 218 (1966).

¶ 41. The elements of the equitable doctrine of laches , are: (1) unreasonable delay; (2) knowledge of and acquiescence in the course of events; and (3) prejudice to the party asserting laches. See Ozaukee County v. Flessas, 140 Wis. 2d 122, 127, 409 N.W.2d 408 (Ct. App. 1987). This defense operates

as a bar upon the right to maintain an action by those who unduly slumber upon their rights. There is no fixed rule as to the lapse of time necessary to bar a suitor in a court of equity. Each case must stand upon its own particular facts. Great lapse of time, if reasonably excused and without damage to the defendant, has been ignored; while slight delay, accompanied by circumstances of negligence, apparent acquiescence, or change of defendant's position, has been held sufficient.

Likens v. Likens, 136 Wis. 321, 327, 117 N.W.2d 799 (1908).

¶ 42. Although the issue of reasonableness presents a question of law that we ordinarily review independently of the trial court's determination, because the determination of reasonableness is so intertwined with the factual findings supporting it, we offer some deference to the trial court's conclusion. See Estate of Lohr v. Viney, 174 Wis. 2d 468, 477-78, 497 N.W.2d 730 (Ct. App. 1993).

¶ 43. Patricia's claim for real estate taxes consisted of the taxes paid by her for the period of 1992 through 1996 in the sum of $18,085. She amended the claim to subtract a previously claiméd payment of táxes for 1992, but added a claimed payment for 1983, 1997 and 1998, for an amended total of $23,964.77. The claim for taxes was one part of her six-part claim.

¶ 44. In response to the trial court's application of the doctrine of laches, Patricia contends that the estate offered no evidence to establish the presence of the three elements necessary for laches to apply. Further, she argues that her failure to pursue legal action against Carl for the real estate taxes she paid for no more than four and one-half years was not unreasonable. We are not convinced for two reasons.

¶ 45. First, from a review of the record, we note that a small portion of Patricia's claim for the real estate taxes dates back to 1983. We deem it significant that when, in 1988, she brought a motion for alleged violations of the judgment of divorce relating to child support payments, she did not complain about the real estate taxes.

¶ 46. Second, the record is void of any evidence that from 1992 to the date that the claim was filed, Patricia initiated any action from which Carl could reasonably surmise that she was asserting a right to reimbursement for the payment of any real estate taxes. To the contrary, she admitted to a witness that it was her responsibility from 1993 on to pay the taxes. Furthermore, it is evident that because of Carl's death, the estate is unable to present a response to the merits of the claim and, therefore, the estate is prejudiced.

¶ 47. The reasonableness of delay is a conclusion of law dependent on how the fact-finder evaluates the totality of the evidence. From the evidence in the record, another fact-finder might readily conclude that the delay in asserting a claim for the paid real estate taxes was reasonable. That, however, is not the correct standard of review. As noted earlier, we grant deference to the fact-finder when a "reasonableness standard must be applied because of the unique position occupied by the fact-finder in assessing the quality of the evidence placed before it."

¶ 48. Patricia argues that she was aware of Carl's condition of health and decided it was inappropriate to raise the issue of reimbursement with him. It is not for this court to assess her seemingly circumspect motive. The trial court was not functioning in a vacuum. It heard her testimony relating to all six parts of her claim. In succinct terms, it found much of her testimony incredulous. This conclusion may have driven the trial court's decision on findings of fact and its ultimate discretionary application of laches. We can find no reversible fault in this exercise of discretion.

¶ 49. The trial court also based its decision on this contested claim not only on equitable grounds, but also on legal grounds. Patricia additionally contends that regardless of when the mortgage existing at the time of the divorce was paid off, Carl was obligated by the terms of the stipulation to pay the real estate taxes until the marital homestead was sold.

¶ 50. The court concluded that a practical construction of the divorce judgment resulted in Carl, and later the estate, owing no real estate taxes beyond the time the home was to be sold by one of the triggering events set forth in the stipulation. We agree with this construction. In Zweck v. D.P. Way Corp., 70 Wis. 2d 426, 435, 234 N.W.2d 921 (1975), our supreme court recognized:

It is a well-settled principle of Wisconsin law that, where contract terms may be taken in two senses, evidence of practical construction by the parties is highly probative of the intended meaning of those terms and the court will normally adopt that interpretation of the contract which the parties themselves have adopted.

The judgment of divorce required that Carl pay the "mortgage including principal, interest, insurance and taxes until the sale of the property." The stipulation further provided that the home "shall" be sold upon the "the youngest child of the parties [Heather] attaining the age of twenty-two (22) years." Heather turned twenty-two years of age on September 6, 1993. Although the record reflects that neither party took any action to sell the marital homestead, the record demonstrated that Patricia recognized she was responsible for the payment of real estate taxes after that date.

¶ 51. The trial court applied the doctrine of practical construction to reach the conclusion that even if the final stipulation incorporated into the judgment of divorce required Carl to pay the real estate taxes after the mortgage was paid off, it did not require him to pay the taxes coming due after the youngest child attained her twenty-second birthday on September 6,1993.

¶ 52. The trial court further supported its conclusion by observing that in accord with the stipulation, Patricia had the first option to purchase Carl's interest in the marital homestead. However, she did not offer to buy it on September 6, 1993, nor did she demonstrate any intention of either buying the one-half interest or selling the home. Recognizing that it had the obligation to adopt a construction that would result in a reasonable, fair, and just stipulation, see Capital Investments, Inc. v. Whitehall Packing Co., Inc., 91 Wis. 2d 178, 193, 280 N.W.2d 254 (1979), the trial court concluded it would be absurd to "permit the claimant to drag her feet and thereby require the decedent and his estate to pay the taxes indefinitely, while the claimant continued to reside in the house rent-free." The court's conclusion has support in the evidence, is well-reasoned and therefore, not erroneous.

By the Court. — Order affirmed.

FINE, J.

¶ 53. (dissenting). In my view, the statutes here are clear and the estate's objection to the claim was not timely. Accordingly, I respectfully dissent.

¶ 54. Wisconsin Stat. § 859.33(1) requires that any objection to a claim filed against an estate "shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate." (Emphasis added.) Here, the lawyer for Patricia A. Flejter mailed her claim against the estate to the estate's attorney on November 12,1997. The sixty-day period thus ran on January 11, 1998, which because that date is a Sunday, January 12, 1998. See WlS. Stat. § 801.15(l)(b) ("Notwithstanding ...[§] 990.001(4), in computing any period of time prescribed or allowed ... by any . . . statute governing actions and special proceedings, . . . the day of the act . . . from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed."); Wis. Stat. §§ 990.001(4)(a) (first day excluded from calculation); 990.001(4)(b) (if Sunday is the last day, it is excluded from calculation). The estate's objection to the claim was not served until January 14,1998. It was two days late.

¶ 55. The majority concludes that WlS. STAT. § 801.15(5)(a) makes the estate's objection timely. Section 801.15(5)(a) provides that where a party must do something "within a prescribed period after the service of a notice or other paper upon the party," "3 days shall be added to the prescribed period" "[i]f the notice or paper is served by mail." The problem with the majority's rationale, as I see it, is that — unlike the other time-computation statutes to which § 801.05(15)(a) applies — -WlS. Stat. § 859.33(1) covers specifically the time within which an objection to a claim must be filed when the claim is mailed. Thus, in my view, it is improper to apply the more general provision in § 801.15(5)(a). See Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 22, 353 N.W.2d 812, 817 (Ct. App. 1984) (" 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.'") (Quoting 2A SUTHERLAND, STATUTORY Construction § 51.05 (4th ed. 1973)).

¶ 56. The following analysis applies here:

• Wisconsin Stat. § 801.15(5)(a) is the general statute — it applies to "all civil actions and special proceedings . . . except where different procedure is prescribed by statute or rule." See WlS. STAT. § 801.01(2) (emphasis added).
• Wisconsin Stat. § 859.33(1) is the specific statute — it applies to the timely filing of objections to claims against estates.
• Section 859.33(1) requires that an objection to a claim against an estate shall be served and filed "within 60 days after the copy of the claim was mailed to or served upon" the estate. (Emphasis added.) Section 805.15(5)(a) gives an extra three days when document to which a response must be made is mailed to the party.
• Section 859.33(1) thus conflicts with § 805.15(5)(a) because application of the latter provision to the former modifies the former to require that any objection to a claim filed against an estate "shall be served upon or mailed to the claimant and filed with the court within 60 63 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate."

Accordingly, under the universal rule recognized Maxey, the sixty-day period set out in § 859.33(1) governs; it is also the "different procedure" envisioned by § 801.01(2) as trumping § 801.15(5)(a). The estate's objection was untimely. I would reverse.

       The claim also consisted of: (1) 268 items of real estate repairs allegedly occurring between 1976 and 1997; (2) five items of costs allegedly incurred in 1982 to avoid foreclosure on the home; (3) 199 items of uninsured medical expenses that allegedly incurred between 1977 and 1995; and (4) 111 alleged loans to Carl. These are not pertinent to the appeal.

       WISCONSIN Stat. § 859.33(1) provides in pertinent part:
      How CONTEST INITIATED. The following persons may contest a claim . . .: the personal representative .... They may do so only by mailing a copy of the objection ... to the claimant or personally serving the same upon the claimant and filing the same with the court. The objection... may be served at any time prior to entry of judgment on the claim, but if a copy of the claim has been mailed to or served upon the personal representative or the attorney for the estate, the objection . . . shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate.
      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 801.15(5)(a) provides:
      Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
      (a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.

       Patricia argues that the language "mailed to" in addition to the language "served upon" somehow indicates the legislature's intent to exclude Wis. STAT. § 801.15(5)(a)'s application to the 60-day deadline. We are not persuaded. In light of the historical analysis of the statutes, the only reasonable interpretation of the statutory language is that the "served upon" language refers to personal service, and the "mailed to" language refers to service by mail.

       Patricia claims- the trial court erred in construing this ambiguity against her based on the fact that her attorney drafted the final stipulation. She argues that the record does not support such a ruling. We disagree. We may take into account the total record in resolving the ambiguity. Here it is self-evident from the body of the judgment of divorce and the back side of the document, that Patricia's attorney or law office prepared the judgment of divorce and the stipulation. See Hunzinger Constr. Co. v. Granite Resources, Inc., 196 Wis. 2d 327, 339, 538 N.W.2d 804 (Ct. App. 1995).

       The complete text of the final stipulation as to this issue provided:
      The joint tenancy of the parties in the residence located at 2180 E. Spruce Court, Oak Creek, Wisconsin . . . shall be terminated and the parties shall hold said real estate as tenants in common. Upon the happening of any of the events hereinafter enumerated, said property shall be sold. The defendant shall continue to pay the mortgage, including principal, interest, insurance and taxes until the sale of the property and plaintiff shall be allowed to occupy the homestead until such sale. In addition, the plaintiff shall have the first option to purchase said real estate.

        After payment of all encumbrances, usual costs of sale, and prorations, the net proceeds from the sale shall be shared equally by the parties.
      NOTE: The defendant agrees to be responsible for any reasonable needed interior and exterior painting upon the plaintiff supplying the paint and materials.
      The conditions upon which the sale of said property shall occur are:
      1) plaintiffs remarriage;
      2) plaintiff moving from said premises;
      3) the youngest child of the parties attaining the age of twenty-two (22) years;
      4) plaintiffs death; or
      5) upon the mutual agreement of the parties.
      ... Both parties shall cooperate in the sale of the said property and the showing of same.
      The defendant shall be responsible for all major repairs and maintenance expenses for the home in excess of $50 per event. The plaintiff shall pay the first $50 for each such repair. The cost of all repairs, maintenance, etc. over $50 per event and not covered by insurance, shall be shared equally by the parties.


source: Caselaw Access Project

author: HOOVER, P.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael M. Longcore, Defendant-Appellant.

    Court of Appeals

      No. 00-1171-CR.

      Submitted on briefs November 21, 2000.

    Decided December 5, 2000.

    2001 WI App 15
    (Also reported in 623 N.W.2d 201.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Steven J. Madson, assistant district attorney, of Green Bay, and James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

       This case was considered by a three-judge panel pursuant to the chief judge's order of September 14, 2000. See WlS. STAT. § 809.41. All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

   HOOVER, P.J.

¶ 1. This is Michael Longcore's second appeal of the judgment of conviction for eighth offense operating a motor vehicle after revocation, contrary to WlS. Stat. § 343.44(1). He contends that the arresting officer lacked probable cause to stop his vehi-ele and that the trial court therefore erred by denying his motion to suppress evidence. The trial court held that the officer had probable cause to believe Longcore was violating Wisconsin's safety glass law by operating a vehicle with a plastic sheet covering a window opening. We agree with the trial court's interpretation of the safety glass statute and therefore affirm.

BACKGROUND

¶ 2. Longcore filed a motion to suppress his identity and other evidence based upon his contention that the arresting officer' did not have a reasonable suspicion that Longcore committed, was committing or was about to commit an offense. At the motion hearing preceding the first appeal, the trial court found that the arresting officer stopped Longcore's vehicle in part because the officer observed that a rear passenger window was missing and replaced with a plastic sheet. The officer believed this constituted a violation of the safety glass statute, WlS. STAT. § 347.43(1). The trial court held that the officer's belief was reasonable and justified the stop, even if the officer incorrectly interpreted the safety glass statute to prohibit one from replacing glass with plastic. It therefore did not determine whether operating a vehicle with a window replaced with plastic violated the statute. .

¶ 3. Longcore appealed and we reversed, holding that the stop was predicated on the officer's belief that he had probable cause, and not a reasonable suspicion, that Longcore was violating the safety glass statute. We further held that an officer who erroneously applies the law to the facts does not have probable cause to believe the law was violated. We therefore remanded the matter to the circuit court to determine whether the facts proved at the motion hearing constitute a violation of WlS. Stat. § 347.43(1). See State v. Longcore, 226 Wis. 2d 1, 593 N.W.2d 412 (Ct. App. 1999).

¶ 4. After a second hearing, the trial court issued a written decision concluding that WlS. STAT. § 347.43(1) is ambiguous. The statute, it noted, could be read to require that only glass may be in those areas of a car where glass is normally found. It was further persuaded that Longcore's interpretation was also reasonable: If glass is currently present in a vehicle's window, it must be safety glass. The trial court construed § 347.43(1) to prohibit replacing vehicle glass with plastic sheeting and therefore concluded that the officer had probable cause to believe Longcore was violating the safety glass law. Longcore again appeals.

STANDARD OF REVIEW AND STATUTORY CONSTRUCTION

¶ 5. This case requires us to interpret WlS. STAT. § 374.43(1). Statutory interpretation presents a question of law we review de novo. State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311 (Ct. App. 1987). The goal of statutory interpretation is to determine and give effect to the legislature's intent. Doe v. American Nat'l Red Cross, 176 Wis. 2d 610, 616, 500 N.W.2d 264 (1993). The primary source of interpretation is the statutory language itself. Hartlaub v. Coachman Indus., 143 Wis. 2d 791, 797, 422 N.W.2d 869 (Ct. App. 1988). If the language is unambiguous, resort to extrinsic aid for purposes of statutory interpretation would be improper. General Tel. Co. v. A Corp., 147 Wis. 2d 461, 464, 433 N.W.2d 264 (Ct. App. 1988). If the language is clear and unambiguous on its face, we merely apply that language to the facts at hand. In re Peter B., 184 Wis. 2d 57, 71, 516 N.W.2d 746 (Ct. App. 1994).

¶ 6. A statute is not rendered ambiguous merely because the parties disagree as to its meaning. Lincoln Savings Bank, S.A. v. DOR, 215 Wis. 2d 430, 441-42, 573 N.W.2d 522 (1998). A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. See id.

ANALYSIS

¶ 7. This case turns on the meaning of WlS. STAT. § 347.43(1). If it prohibits replacing a vehicle's glass window with a plastic sheet, it is undisputed that there was probable cause to stop Longcore.

¶ 8. Wisconsin Stat. § 347.43, entitled "Safety glass" provides in part:

(1) No person may operate upon a highway any motor vehicle manufactured after January 1, 1936, unless such motor vehicle is equipped with safety glass wherever glass is used thereon in partitions, doors, windows or windshields.
(3) In this section, "safety glass" means glass so treated or combined with other materials as to reduce, in comparison with ordinary sheet glass or plate glass, the likelihood of injury to persons by objects from external sources or by such glass when it is struck, cracked or broken.

¶ 9. Longcore contends that Wis. Stat. § 347.43(1) is not ambiguous on its face for three reasons: First, he asserts that the statute's plain language refers specifically to "glass," mandating merely that wherever glass is used on a motor vehicle, it must be safety glass. He argues, however, that the statute does not regulate the general use of materials on window openings. "Nor does it imply anything about the use of other, non-glass materials as a matter of logic." Second, because the statute refers to the present tense, i.e., "wherever glass is used," the legislature intended to regulate the vehicle's current window material rather than a previously installed material. Third, the statutory context demonstrates the legislature's intent to "to reduce, in comparison with ordinary sheet glass or plate glass, the likelihood of injury to persons by objects from external sources or by such glass when it is struck, cracked or broken." (Longcore's emphasis.) From these observations, Longcore concludes that WlS. STAT. § 347.43(1) plainly forbids using plate or sheet glass in motor vehicles and "nothing more."

¶ 10. Both the Brown County district attorney and the attorney general filed response briefs. The district attorney concurs with the trial court's decision, while apparently maintaining that the statute unambiguously prohibits using plastic to cover a passenger window. The attorney general first asserts that the State "does not disagree with the trial court's conclusion that the safety glass statute is ambiguous." It next states, however, that if Longcore is correct and the statute is not ambiguous, "its lack of ambiguity operates in the state's favor" to expressly prohibit using plastic to cover an area where glass is used. This implies that the attorney general, its deference to the trial court's conclusion notwithstanding, in fact considers the statute unambiguous. We agree.

¶ 11. We do not perceive any ambiguity in WlS. Stat. § 374.43(1). It mandates that wherever glass is used on the particular vehicle being operated, it must be safety glass. It is undisputed that glass is used in the windows of Longcore's vehicle. He therefore was required to replace a broken window with safety glass.

¶ 12. Longcore points to the statute's failure to account for plastic windows in vehicles with convertible tops in support of his proposition that WlS. Stat. § 347.43(1) only requires safety glass if there is presently glass in the window. As the trial court observed, however, glass is not used in those cars with plastic rear windows, and the statute therefore does not apply to them. We agree.

¶ 13. In its written decision, the trial court noted that its construction was consistent with the legislative intent expressed in the definition of "safety glass," WlS. Stat. § 347.43(3), to protect vehicle occupants. The attorney general echoes this observation on appeal. Longcore responds that "the likelihood of injury to persons by objects from external sources," see id., is not reduced when a vehicle is operated with its windows rolled down. However, identifying a contingency that the statute does not address begs the question. Longcore certainly cannot seriously contend that safety was not the driving concern behind the safety glass statute. The issue is whether the statute is ambiguous, not whether it is the perfect expression of the legislature's underlying intent.

¶ 14. The attorney general put it succinctly sixty-three years ago when he said that the safety glass statute "makes it unlawful for any person to operate an automobile .. . unless it is equipped with safety glass." See 26 Wis. Op. Att'y Gen., supra, at 138. Longcore violated the statute. Therefore, the officer had probable cause to stop the vehicle at which time he determined that Longcore was operating after revocation. Longcore's conviction for operating after revocation is affirmed.

By the Court. — Judgment affirmed.

       An equally divided supreme court summarily affirmed our decision. See State v. Longcore, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620 (per curiam).

       Having acknowledged an ambiguity, and while later addressing Longcore's extrinsic construction aids, the trial court nevertheless held that WlS. STAT. § 347.43(1) "states that all vehicles must be equipped with safety glass 'wherever glass is used' on a car. There is no dispute that the window that was covered with plastic was an area where glass was and is used on a vehicle. Therefore, this statute applies and the defendant was in violation
      It thus appears to us that the trial court construed WlS. STAT. § 347.43(1) by looking to its plain language and concluding that it requires safety glass in areas where glass was originally installed in the vehicle.

       For this reason, we do not consider Longcore's discussion of the trial court's analysis except to observe that it did not merit the near vituperative tenor Longcore employed in attacking it. Rather, what we observed in our earlier decision bears repeating in the context of the current issue: The trial court was confronted with a case of first impression and provided a thoughtful analysis. Were we able to perceive ambiguity in WlS. Stat. § 347.43(1), we would adopt the reasoning in the trial court's written decision.

       Longcore offers an alternative analysis to demonstrate that WlS. STAT. § 347.43(1) does not prohibit plastic window replacements even if the statute is ambiguous. Because we conclude that the statute is not ambiguous, we may not resort to considering the extrinsic aids Longcore relies upon in advancing this argument. If the language is unambiguous, resort to extrinsic aid for purposes of statutory interpretation is improper. General Tel. Co. v. A Corp., 147 Wis. 2d 461, 464, 433 N.W.2d 264 (Ct. App. 1988).
      We nevertheless note that one of Longcore's arguments relies in part on WlS. STAT. § 85.063 (1935) (he asserts that § 85.063 was enacted before sheet plastic was commonly used and therefore the legislature did not intend to prohibit its use). We agree with Longcore that § 85.063 "utilized essentially the same relevant statutory language as the present-day version." We further note that the attorney general opined that § 85.063 prohibits operating a vehicle on public highways or streets unless it is equipped with safety glass. See 26 Wis. Op. Att'y Gen. 137, 138 (1937). Such opinions are persuasive authority as to the meaning and purposes of statutes. See State v. Wachsmuth, 73 Wis. 2d 318, 323, 243 N.W.2d 410 (1976).


author: PETERSON, J.

text:
    Everett Carlson, Plaintiff-Appellant, v. Oconto County Board of Canvassers, Respondent-Respondent, Barbara Smith, Intervenor-Respondent-Respondent.
    Court of Appeals

      No. 00-1788.

      Submitted on briefs November 13, 2000.

    Decided December 5, 2000.

    2001 WI App 20
    (Also reported in 623 N.W.2d 195.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Aaron M. Krzewinski of Judge Law Offices, S.C., Oconto.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Alyson K. Zierdt of Davis &Kuelthau, S.C., Oshkosh.
    On behalf of the intervenor-respondent-respon-dent the cause was submitted on the brief of Vance M. Waggoner, Oconto Falls.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. Everett Carlson appeals the portion of the judgment affirming the findings of the Oconto County Board of Canvassers and declaring his opponent, Barbara Smith, the winner of the election for Oconto County Board of Supervisors, District 20. On appeal, Carlson argues that (1) he does not have the burden of proving that the votes of the challenged electors would have changed the election results pursuant to WlS. STAT. chs. 5-12; and (2) the trial court erred by determining that it lacked legal authority to order a special election. We disagree and affirm the judgment.

BACKGROUND

¶ 2. The election for Oconto County Board of Supervisors, District 20, resulted in 125 votes for Smith and 123 votes for Carlson. Pursuant to WlS. STAT. § 9.01, Carlson petitioned the Board of Canvassers for a recount and alleged that between two and four persons illegally voted in District 20. The board set aside one vote for Smith that was not properly initialed, reducing the margin of victory to one vote. The board further found that two of the ballots Carlson challenged were cast by voters who did not reside in District 20 and had voted there by mistake. The board refrained from taking further action because Carlson had already announced his intention to appeal to the circuit court.

¶ 3. Carlson appealed the recount to the circuit court, alleging that he was entitled to a special election because the invalid votes could have changed the results of the election. At trial, Carlson called as witnesses, the two District 20 voters who the board had determined voted by mistake. The witnesses stated their current addresses, confirmed that these were their addresses on the day of the election, and were the addresses given to election officials on election day. Carlson did not ask them who they voted for or whether they were willing to waive the privilege against nondisclosure of an election vote.

¶ 4. The trial court ruled that Carlson had failed to show how the challenged ballots would have made a difference in the outcome of the election and that the board had not erroneously interpreted the law. The trial court declared Smith the winner and found that a contrary result would disenfranchise the District 20 electorate. This appeal followed.

STANDARD OF REVIEW

¶ 5. The validity of an election raises questions of statutory interpretation that this court reviews independently without deference to the trial court. See Logerquist v. Board of Canvassers for Town of Nasewaupee, 150 Wis. 2d 907, 912, 442 N.W.2d 551 (Ct. App. 1989). On appellate review of a WlS. STAT. § 9.01 proceeding, the question is whether the board's findings are supported by substantial evidence. See id. at 918.

DISCUSSION

I. Burden Of Proof

¶ 6. Carlson first argues that he did not have the burden of proving that the votes of the challenged electors would have changed the election results. We disagree.

¶ 7. In Wisconsin, relief for the losing candidate is confined to the recount statute. See WlS. STAT. § 9.01. The statute is the exclusive remedy for any claimed election fraud or irregularity. See Wis. Stat. § 9.01(H); see also State ex rel. Shroble v. Prusener, 185 Wis. 2d 102, 112-13, 517 N.W.2d 169 (1994).

¶ 8. Interpretation of Wis. Stat. § 9.01 is based on public policy articulated in early legal decisions that predated § 9.01. See State ex rel. Wold v. Hanson, 87 Wis. 177, 58 N.W. 237 (1894). In Wold, our supreme court stated "[a]n election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters have been allowed to participate." Id. at 179. This statement of policy was approved as a general rule by the supreme court in McNally v. Tollander, 100 Wis. 2d 490, 500, 302 N.W.2d 440 (1981).

¶ 9. The public policy articulated in Wold was codified in WlS. STAT. § 5.01(1). Our supreme court has interpreted § 5.01(1) to mean that only substantial violations of the election law should operate to vacate an election. See State ex rel. Pelishek v. Washburn, 223 Wis. 595, 600, 270 N.W. 541 (1936). In Pelishek, the court stated that § 5.01(1) was "a mandate to the judicial tribunal before whom the proceedings are pending that mere informality or failure to comply with some of the provisions of the title shall not defeat the will of the electors." Id. at 601.

A. Outcome Test v. Reasonable Uncertainty Test

¶ 10. Carlson argues that Wisconsin courts have not chosen the standard that a challenger must meet to overturn an election, but that they lean toward the reasonable uncertainty test as opposed to the outcome test. The reasonable uncertainty test requires only that the challenger demonstrate that the outcome of the election is impossible to determine with mathematical certainty. See Helm v. State Election Bd., 589 P.2d 224, 228 (Okla. 1979). The result of an election is sufficiently uncertain if the number of voided ballots cast exceeds the margin of victory between the candidates. See id. Under the outcome test, to successfully challenge an election, the challenger must show the probability of an altered outcome, in the absence of the challenged irregularity. See Tollander, 100 Wis. 2d at 505.

¶ 11. Contrary to Carlson's argument, our supreme court has approved the outcome test for most election irregularities. See id. In Tollander, our supreme court declined, however, to apply the outcome test because certain public officials had deprived 40% of the electorate the right to vote. While the court reaffirmed the outcome test, it articulated a fact dependent exception to the general application to the test:

But in a case where deprivations of the right to vote are so significant in number or so egregious in character as to seriously undermine the appearance of fairness, we hold such an election must be set aside, even where the outcome of the election might not be changed.

Id. Therefore, this case is not one in which Carlson is relieved from his burden of presenting affirmative evidence to show how the outcome of this election would have been changed if the votes of the two illegal electors had not been counted in District 20. This is not a case where deprivations of the right to vote are significant in number.

¶ 12. Carlson claims Logerquist, 150 Wis. 2d at 919, controls because it specifically addresses the problem of voter disqualification due to residency requirements. Carlson contends that Logerquist implicitly endorses the reasonable uncertainty test and clearly contemplates a special election had the number of disqualified voters exceeded the margin of victory. We disagree.

¶ 13. The issue in Logerquist was whether WlS. Stat. § 9.01 provides one elector with the opportunity to challenge another elector's eligibility after an election. We held that "[e]ven with one disqualified elector, a new referendum election would not change the results in favor of annexation." Id. at 920. However, relying on Clapp v. Joint Sch. Dist. No. 1, 21 Wis. 2d 473, 124 N.W.2d 678 (1963), we reaffirmed the proposition that post-election eligibility challenges pursuant to WlS. Stat. § 9.01 are permissible "provided they may affect the election results." Logerquist, 150 Wis. 2d at 916.

¶ 14. Contrary to Carlson's argument, Loger-quist does not address whether a special election would be appropriate if the number of disqualified voters exceeded the margin of victory. We stated only that the vote of the one elector for whom adequate evidence of disqualification had been submitted would not have changed the election outcome. See id. at 920. This observation is not a holding that a special election is required if the number of disqualified voters exceeds the margin of victory.

B. Voter Privilege Against Disclosure

¶ 15. Despite our determination that the outcome test is to be applied in Wisconsin, Carlson argues that a Wisconsin voter's absolute privilege to ballot secrecy compels adoption of the reasonable certainty test. We disagree.

¶ 16. Article III, § 3, of the Wisconsin Constitution provides that all votes shall be by secret ballot. However, this constitutional provision does not control the question of whether a voter may, under certain circumstances, disclose, or be compelled to disclose, the manner in which he or she voted. WISCONSIN STAT. § 905.07 provides, "Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally." Therefore, under the express provisions of WlS. STAT. § 905.07, neither of the two persons who had illegally voted in this election was entitled to the privilege against disclosing how he or she voted in the election.

¶ 17. Carlson further argues that election results would be unreliable and arbitrary if persons who voted illegally were allowed to testify about how they voted because they would know in advance how their testimony would affect the election outcome. See Reich v. District Lodge 720, 11 F.3d 1496, 1500 (9th Cir. 1993). We disagree.

¶ 18. In support of this argument, Carlson cites a footnote in Appeal of Bd. of Canvassers, 147 Wis. 2d 467, 474-75 n.2, 433 N.W.2d 266 (Ct. App. 1988). The footnote expressed concern about the "potential for mischief' if a voter can testify about a vote, knowing that it can affect the election outcome. Id. However, this was not our holding in Board of Canvassers. We did not rule on whether an elector can testify how he or she voted. See id. at 471.

¶ 19. While Carlson's concerns are not unfounded, there is no case law that prohibits voter testimony in a post election challenge. If there are questions about the credibility of a voter's testimony, those questions may be tested on cross-examination, weighed by the finder of fact, and reviewed on appeal. We reject Carlson's argument that Wisconsin courts lean toward the reasonable certainty test.

II. Special Election

¶ 20. Last, Carlson argues that the trial court erred by determining that it lacked the authority to order a special election. Carlson contends that the trial court erroneously gave legal weight to the board's recount results and that it relied on outdated case law to deny Carlson his remedy. We disagree.

¶ 21. Carlson misreads the trial court's ruling. The trial court did not determine that it lacked the authority to order a special election. Rather, it stated that Carlson had failed to meet his burden of proving how the two votes affected the outcome so as to warrant invalidation of the election. The trial court stated:

Nevertheless, in my judgment, it cannot be cured. There is nothing in the record at this time, and there was nothing in the record at the recount proceeding before the Board of Canvassers, to show how the two invalid electors, Umentum and War-richaiet voted. Accordingly, there is no way for the Board of Canvassers or this court to know how those two invalid votes effected [sic] the final result of the election tally.
In this case, the appellant has failed to show the defect of the invalid ballots. The appellant has made no showing in the entire record as to how the due challenge [sic] ballots were cast and that they would have made a difference in the election.

The trial court correctly defined the scope of review of the board's decision, stating that it was required to set aside or modify the board's determination if it found that the board had erroneously interpreted a provision of law and that a correct interpretation compelled a particular action. See WlS. STAT. § 9.01(8).

¶ 22. Carlson argues that the trial court based its holding on the very early language of Wold. However, the trial court's reference to Wold is limited to Wold's expression of general public policy. That public policy favors upholding a flawed election in the absence of fraud, unless there is some proof of the effect the irregularity would have had on the outcome. This principle was reaffirmed in Shroble, 185 Wis. 2d at 116. We reject Carlson's argument that the trial court's decision was not properly based on sound public policy.

¶ 23. The trial court determined that Carlson failed to meet his burden of proving beyond a reasonable doubt that the election raised any uncertainty concerning the will of the electors. Because the record shows that Carlson did not meet that burden, we affirm the trial court's decision declaring Smith to be the winner.

By the Court. — Judgment affirmed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Carlson further alleged that allowing the ineligible electors to vote is an "irregularity, defect, mistake and fraud." The circuit court found that no fraud had occurred. This issue is not challenged on appeal.

      WlSCONSIN Stat. § 9.01(11) reads as follows: "EXCLUSIVE REMEDY. This section constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process."

      WlSCONSIN STAT. § 5.01(1) provides: "CONSTRUCTION OF CHS. 5 TO 12. Except as otherwise provided, chs. 5 to 12 shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions."

       Wisconsin Stat. § 9.01(8) reads as follows:
      SCOPE OF REVIEW. Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers or chairperson of the board, it shall affirm the determination. The court shall separately treat disputed issues of procedure, interpretations of law and findings of fact. The court may not receive evidence not offered to the board of canvassers or chairperson except for evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount, and except that the court may receive evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding. A party who fails to object or fails to offer evidence of a defect or irregularity during the recount waives the right to object or offer evidence before the court except in the case of evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount or evidence received by the court due to unavailability of counsel during the recount. The court shall set aside or modify the determination if it finds that the board of canvassers or chairperson has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers or chairperson, the court may not substitute its judgment for that of the board of canvassers or chairperson as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.

       Carlson contends that when State ex rel. Wold v. Hanson, 87 Wis. 177, 58 N.W. 237 (1894), was decided, there were no legislative scheme addressing election problems. Since then, the Wisconsin Legislature has provided that special elections may be held when necessary. See Wis. Stat. §§ 5.02(19) and 8.06.


author: BROWN, P.J.

text:
    In Re the Return of Bond in State of Wisconsin v. Christopher J. Melone, Jr.: Barbara Melone, Appellant, v. State of Wisconsin, Respondent.
    Court of Appeals

      No. 00-0969.

      Submitted on briefs October 23, 2000.

    Decided December 6, 2000.

    2001 WI App 13
    (Also reported in 623 N.W.2d 179.)

      On behalf of the appellant, the cause was submitted on the brief of Theodore B. Kmiec III of Gagliardi, Nelson & O'Brien, Salem.
    On behalf of the respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. The trial court declined a request to set aside an order that a mother's bail money be forfeited to the State on the ground that it always refuses to return bail money no matter what the circumstance. But the statute on bail forfeitures, WlS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis. Applying a blanket policy to all cases is an erroneous exercise of discretion because it is tantamount to a refusal to exercise discretion. We remand this case to the trial court to weigh the factors for and against returning some or all of the $20,000 to Barbara Melone, which she posted for bail on her son's behalf.

¶ 2. Christopher J. Melone, Jr., was charged with second-degree recklessly endangering safety and endangering safety by use of a dangerous weapon. Bail was set at $5000. Barbara Melone, Christopher's mother, posted the bail, but it was forfeited when Christopher missed a court date. Bail was set again, this time for $20,000, which Melone also posted. Bail was conditioned upon Christopher not consuming alcohol or drugs without a prescription. According to Melone, she posted the $20,000 bail to help Christo.pher and his attorney prepare a defense and to enroll him in a drug and alcohol rehabilitation program, at her expense. She initially enrolled Christopher in an outpatient treatment program; when that failed, she enrolled him in an inpatient program. Sometime after the $20,000 was posted, Christopher failed a urinalysis test.

¶ 3. At a hearing on the bond forfeiture, Melone asked the court to exercise its discretion under WlS. STAT. §969.13(2) and return the $20,000 to her. The court, after expressing that it felt badly about doing this, refused. At a motion to reconsider hearing, the trial court reached the same result for the same reason. According to the court, it always refuses to return bail, no matter what the circumstances are, because giving the money back provides a disincentive to those on bail to follow their bail conditions.

¶ 4. The bail forfeiture statute allows the court to set aside an order forfeiting bail "if it appears that justice does not require the enforcement of the forfeiture." WISCONSIN Stat. §969.13(2). The trial court's decision under § 969.13(2) is one of discretion; we review the trial court's ruling to determine whether it properly exercised its discretion. See State v. Achterberg, 201 Wis. 2d 291, 300-01, 548 N.W.2d 515 (1996). As our supreme court has stated numerous times, the trial court has properly exercised its discretion if it examined relevant facts, applied proper legal standards and engaged in a rational decision-making process. See State v. Bentley, 201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996). More specifically to this case, this court in State v. Ascencio, 92 Wis. 2d 822, 830, 285 N.W.2d 910 (Ct. App. 1979), indicated that exercising discretion to determine what "justice requires" pursuant to §969.13(2) involves looking at a number of factors, some of which were enumerated in that case.

¶ 5. Melone draws our attention to the fact that in Ascencio, 92 Wis. 2d at 830, this court criticized the trial court for giving no reasons for refusing to set aside a bail forfeiture order. Melone argues that this case mandates the same result for virtually the same reason. Melone claims that refusing to remit bail in all cases instead of weighing the relevant factors on a case-by-case basis is an erroneous exercise of discretion because it amounts to consideration of only one factor — the same factor in all cases — without any individualized assessment. We agree.

¶ 6. The term "discretion" contemplates a reasoning process that depends on the facts in the record and yields a conclusion based on logic and founded on a proper legal standard. See State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 624, 511 N.W.2d 868 (1994). Coming to the same conclusion for the same blanket reason in every case despite the facts of each case does not satisfy this definition. Case law supports our determination. See State v. Smith, 203 Wis. 2d 288, 299, 553 N.W.2d 824 (Ct. App. 1996) (stating that a blanket rule to exclude prior conviction evidence "while expedient and consistent, fails to show a consideration of the proper factors"); McCleary v. State, 49 Wis. 2d 263, 277-78, 182 N.W.2d 512 (1971) (concluding that the failure to consider, proper factors is an erroneous exercise of discretion). As stated above, Ascencio, 92 Wis. 2d at 830, has indicated that determining what justice requires under WlS. Stat. §969.13(2) involves weighing a number of relevant factors. Consequently, the trial court erroneously exercised its discretion by relying on one factor rather than weighing all relevant factors.

¶ 7. We disagree with the trial court that giving money back to the person who posted bail provides a disincentive, in every instance, to those on bail to follow their bail conditions. Sometimes a defendant's drug or alcohol addiction may be so strong that it overrides the defendant's intent not to bring financial harm to the person who posted the bond. See, e.g., State v. Ginter, 585 P.2d 1111, 1112-1113 (Okla. 1978). It is proper to ask: how much control over the situation does the defendant have? And how much control does the person who posted the bond have over the defendant?

¶ 8. As for guidance about what other factors may be relevant, we addressed some of these factors in Ascencio. There, we observed that our bail forfeiture statute is patterned after Rule 46 of the Federal Rules of Criminal Procedure. See Ascencio, 92 Wis. 2d at 830. We described numerous factors that the court could consider when deciding whether to remit forfeited bail. See id. at 831-32. We see no benefit in repeating those factors here. However, we observe that while most of the factors discussed in Ascencio concerned the return of bail money after the defendant failed to appear in court on a scheduled date, some of those factors can be tailored to the situation here where the son failed to abstain from consuming drugs or alcohol.

¶ 9. The factors listed in Ascencio should not be considered as the all-inclusive list of every factor that the trial court should take into account when deciding a case under WlS. Stat. § 969.13(2). A standard, such as "that justice.. . . requires," cannot be neatly parlayed into an all-inclusive, exhaustive list. As stated by the Colorado Supreme Court:

This standard is essentially an appeal to the conscience of the court. No clear rule can be set down which will guide the trial court in every case since the facts and circumstances of each individual case must be considered in their totality. No one factor will be determinative in all cases.

Owens v. People, 572 P.2d 837, 838 (Colo. 1977). Thus, while Ascencio does list a number of factors, other considerations might enter into the calculus, depending on the case.

¶ 10. Here, for example, Melone asked the court to weigh the fact that she tried to help Christopher fulfill the bail condition by sending him to two treatment centers at her own expense. When he failed, she kept him in rehabilitation, presumably for his own benefit and possibly to ensure that in the future he would meet the bail condition. In United States v. Mizani, 605 F.2d 739, 739-40 (4th Cir. 1979), the surety tried to get the bail that he posted on his brother's behalf remitted after his brother left the country in violation of his bail condition. When denying remission, the court observed that the surety did little to supervise his brother and prevent him from leaving and did nothing to help find his brother and return him to the United States. See id. at 740-41. The trial court may want to consider whether Melone's attempt to help her son follow the bail condition and her attempt to fix the situation after the bail condition was violated mandates a different result than Mizani.

¶ 11. At the hearing on the motion to reconsider, Melone asked the court to consider the financial hardship she would suffer by not receiving the bail money. Melone explained that she was a single parent with three children and her former husband was in arrears in making child support payments. In Owens, 572 P.2d at 839, the Colorado Supreme Court reversed the trial court's refusal to remit bail. In that case, the defendant's mother owed the entire amount of the bond to a bondsman as a result of the defendant's nonappearance. See id. at 837 — 38. As a result, her children had to go without food and clothing so she could repay the bondsman. See id. at 838. While the facts of that case are extreme, the point is well taken: financial hardship visited upon Melone and her family is a factor that the trial court may want to consider.

¶ 12. The State argued at the motion hearing that this case is like Achterberg, 201 Wis. 2d at 301-02, in which the court refused to remit bail to a defendant despite the fact that the defendant missed a court appearance because he was arrested in a different jurisdiction. The defendant had previously missed a different court date and the court considered the net effect of his missing two court dates, despite the mitigating circumstances of the second, to be indicative of his irresponsibility and refused to remit bail. See id. We agree with the State that the court may consider the fact that Christopher violated bail conditions twice when deciding whether to remit bail.

¶ 13. We remand this case to the trial court with directions that it weigh all the relevant factors when deciding whether to set aside the bail forfeiture order.

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

      A11 references to the Wisconsin Statutes are to the 1997-98 version.