author: ROGGENSACK, J.

text:
    In re the Marriage of Lynn Danette Curda-Derickson v. Richard DuWayne Derickson: Sokaogon Gaming Enterprise Corporation, Appellant, v. Lynn Danette Curda-Derickson and Richard DuWayne Derickson, Respondents.
    Court of Appeals

      No. 02-0924.

      Submitted on briefs November 11, 2002.

      Decided July 3, 2003.

    2003 WI App 167
    (Also reported in 668 N.W.2d 736.)

      On behalf of the appellant, the cause was submitted on the briefs of Andrew S. Caulum of Caulum haw Office, S.C., and of counsel, Michael J. Collins of Collins Law Office, S.C., of Madison.

      On behalf of the respondents, the cause was submitted on the brief of J. Thomas McDermott of Steinhilber, Swanson, Mares, Marone & McDermott of Oshkosh.
    Before Dykman, Roggensack and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. The Sokaogon Gaming Enterprise Corporation appeals the circuit court's judgment concluding that a restitution order imposed as part of Richard Derickson's criminal conviction for embezzlement during his marriage to Lynn Curda-Derickson is not a marital debt. Because the restitution order was the result of conduct that constituted the tort of conversion, which tort was committed by only one spouse, we affirm the circuit court's conclusion that the restitution order is Richard's sole obligation pursuant to Wis. Stat. § 766.55(2)(cm) (2001-02).

BACKGROUND

¶ 2. Lynn Curda and Richard Derickson were married on February 20, 1988. In 1994, Richard was appointed the tribal planner for the Sokaogon Chippewa Community, a federally recognized American Indian nation. Between October 1995 and July 1997, Richard embezzled more than $370,000 from the Sokaogon Gaming Enterprise Corporation (Sokaogon), a tribally chartered and wholly-owned subsidiary of the Chippewa, by causing checks to be issued in payment of false billing invoices. In January 1998, Richard and Lynn were indicted in federal district court on five counts of conspiracy to commit theft, fraud, interstate transportation of stolen funds and money laundering.

¶ 3. In May 1998, Richard entered into a plea agreement. He pled guilty to one count of conspiracy to defraud an Indian gaming establishment, contrary to 18 U.S.C. §§ 371 and 1167(b), and one count of money laundering, contrary to 18 U.S.C. § 1956. Richard also agreed to make restitution to the Sokaogon in the amount of $370,796.34 and to forfeit any right, title and interest in real and personal property traceable to funds from the Sokaogon. In a letter dated May 21, 1998, Lynn also agreed to forfeit any right, title and interest in assets purchased with money from the Sokaogon, but excluding parcels of real property located: (1) at E3888 Valley Road, lola, Wisconsin, (2) at E5777 East Hidde Road, Marion, Wisconsin and (3) in the Town of Mattesor.

¶ 4. On May 26, the district court accepted Richard's plea, and upon the government's motion, dismissed the indictment against Lynn. At the plea hearing, the government submitted a list of assets for forfeiture that were purchased with stolen funds, consisting mainly of farm machinery and cattle. On April 1, the district court entered judgment against Richard, sentenced him according to the plea agreement and issued a restitution order of $370,796.34 to be paid to the Sokaogon. Additionally, the court ordered the turnover of the assets in Lynn and Richard's possession at the farm located on East Hidde Road, for liquidation in partial restitution to the Sokaogon.

¶ 5. In November 2000, Lynn commenced a divorce action. The Sokaogon moved to intervene as a third party claiming an interest in the real and personal marital property to be divided by the court. Specifically, the Sokaogon requested that the court classify the criminal restitution order against Richard as a marital debt. The court granted the Sokaogon's motion to intervene and a bench trial was held on February 18, 2002.

¶ 6. At trial, Lynn testified that she works as an economic support worker for the Waupaca County Department of Health and Human Services. In June 2000, the East Hidde Road property was sold in foreclosure proceedings and Lynn moved to the Valley Road property. She further testified that she did not sell, give or take away any of the assets listed for liquidation and that some were still at the East Hidde Road property when she left.

¶ 7. Additionally, Lynn testified that in February 2001, Richard quitclaimed his interest in the Valley Road property to her, in anticipation of a property division between the parties. Richard and Lynn had purchased the property prior to their marriage and paid off the original mortgage on the property in 1990, before Richard started to work for the Sokaogon. The property is therefore not traceable to his theft. It is currently valued at approximately $10,000 with a $5000 mortgage. There are also several judgment liens against the property, including unpaid real estate taxes, $17,000 due to Jerry's Excavating and the lien created by United States government's restitution order. Prior to the divorce proceeding, Lynn and the United States stipulated that her interest in the Valley Road property, notwithstanding the quitclaim deed, continued to be subject to any legal effects the docketed lien and judgment against Richard may have under applicable law.

¶ 8. Based on Lynn and Richard's testimony, the circuit court granted the divorce and divided the parties' property according to the terms of a marital settlement agreement that the court found to be fair and equitable. Under the settlement agreement, Lynn received her 1995 Ford Aeróstar valued at $2200, her retirement plan worth $1937, an annuity valued at $161.50, the Valley Road property subject to its liens and all personal property in her possession. Additionally, Richard was "solely responsible for all debts and obligations of the parties incurred prior to the commencement of this action." Finally, the court denied the Sokaogon's request to classify the restitution order as a martial debt, reasoning that the Sokaogon had failed to demonstrate that Lynn was involved in the embezzlement. Therefore, the court concluded that under Wisconsin's marital property statutes, the Sokaogon's claim was not valid. The Sokaogon appeals.

DISCUSSION

Standard of Review.

¶ 9. The resolution of this appeal requires us to determine whether a restitution order imposed by a criminal judgment is a marital obligation under Wis. Stat. § 766.55. The construction of a statute and its application to undisputed facts present questions of law that we review without deference to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997).

Restitution Order.

¶ 10. The Sokaogon argues that the circuit court erred by concluding that the restitution order imposed against Richard was not a marital debt subject to division. The Sokaogon starts with the presumption that all property acquired during the marriage that is not inherited or gifted is subject to division in the divorce proceedings. Wis. Stat. § 767.255. Additionally, the divorce court presumes that the division of the marital estate, comprised of assets and debts, is to be equally allocated between the parties. Id. The Sokaogon then characterizes the restitution order as a type of "negative property" and reasons that because "[s]tolen money is not a gift or an inheritance," the restitution order that requires repayment of stolen money that was acquired during marriage must be presumed to be part of the marital estate. The Sokaogon also contends that Lynn failed to rebut the presumption that all debts incurred during the marriage are marital debts and therefore, the restitution order is a marital debt and subject to division between the parties. In so doing, the Sokaogon attempts to assume the posture of a spouse appealing from a judgment of divorce, rather than a judgment creditor seeking recovery for an obligation incurred by a spouse during the marriage.

¶ 11. The underlying purpose of this appeal is plain: the Sokaogon wants to recover from Lynn the indebtedness created by the restitution order and seeks the court's ruling that the order is a "marital debt" under Wis. Stat. § 767.255, towards this end. It is true that Wis. Stat. ch. 767 sets out a framework for the division of assets and debts upon dissolution of marriage. Kuhlman v. Kuhlman, 146 Wis. 2d 588, 590, 432 N.W2d 295, 296 (Ct. App. 1988). However, a creditor's satisfaction rights for an obligation incurred by a spouse during the marriage turns on the nature of the obligation under Wis. Stat. § 766.55 of the Wisconsin Marital Property Act. See St. Mary's Hosp. Med. Ctr. v. Brody, 186 Wis. 2d 100, 103, 519 N.W.2d 706, 708 (Ct. App. 1994). Stated in practical terms, the Sokaogon's right to reach Lynn's property to satisfy the restitution order is not determined by § 767.255; rather, it is driven solely by the classification into which the obligation falls under § 766.55. Id.; Bank One v. Reynolds, 176 Wis. 2d 218, 221, 500 N.W.2d 337, 338 (Ct. App. 1993). The Sokaogon's reliance on § 767.255 is therefore misplaced.

¶ 12. We begin our analysis with an examination of Wis. Stat. § 766.55 that establishes classifications of obligations, marital and individual, with which spouses may be involved, and clarifies what property is available to satisfy obligations of differing classes. Section 766.55 provides in relevant part:

(1) An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family. ...
(2) After the determination date all of the following apply:
(a) A spouse's obligation to satisfy a duty of support owed to the other spouse or to a child or the marriage may be satisfied only from all marital property and all other property of the obligated spouse.
(b) An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.
(cm) An obligation incurred by a spouse during marriage, resulting from a tort committed by the spouse during marriage, may be satisfied from the property of that spouse that is not marital property and from the spouse's interest in marital property.
(d) Any other obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, may be satisfied only from property of that spouse that is not marital property and from that spouse's interest in marital property, in that order.

¶ 13. The Sokaogon argues that the stolen funds benefited the marital estate and the restitution order was therefore incurred as a marital debt. Although it casts the, argument in ch. 767 "property division" language, we understand it to argue that the restitution order was incurred "in the interest of the marriage or the family," under Wis. Stat. § 766.55(2)(b). An obligation under the "family purpose" category may be satisfied from all marital property and all other property of the incurring spouse. Additionally, in dissolution, the court may assign an obligation incurred in the interest of the family to the "nonincurring" spouse and "the obligation may be satisfied as if both spouses had incurred the obligation." Wis. Stat. § 766.55(2m). In practical terms, a subsec. (2) (b) classification of the debt may allow the Sokaogon to attach the nonincur-ring spouse's wages to satisfy the restitution order after dissolution of the marriage.

¶ 14. In contrast, Lynn argues that the restitution order is an obligation "resulting from a tort committed by the spouse during marriage," and therefore falls within the purview of Wis. Stat. § 766.55(2)(cm). She reasons that the conduct that gave rise to Richard's criminal conviction would constitute the civil tort of conversion and therefore, the restitution order resulted from a tort committed by Richard during the marriage. She contends that the circuit court properly rejected the Sokaogon's request to hold her responsible for the obligation after divorce. Because the statutory classification of the restitution order determines whether it is a marital or an individual obligation, the resolution of this appeal turns on whether the restitution order was an obligation incurred "in the interest of the marriage or the family," or whether it resulted "from a tort committed by the spouse during marriage." See §§ 766.55(2)(b) and (2)(cm).

¶ 15. Wisconsin Stat. § 766.55 contains no clear provision for obligations arising from an order for restitution, but we conclude it may be classified as are other obligations incurred during marriage. Accordingly, we start with the statutory presumption that obligations incurred by a spouse during marriage are "incurred in the interest of the marriage or the family." Section 766.55(1). It is not disputed that Richard incurred the restitution order during his marriage to Lynn. However, the legislature carved out statutory exceptions to the presumption, denominated as individual obligations because they may be satisfied only from that spouse's individual property and from that spouse's interest in marital property. See § 766.55(2)(cm). The nonincurring spouse, in this case Lynn, may therefore overcome the "family purpose" presumption by proving that the incurred obligation falls within the statutory exception for torts. See Schmidt v. Waukesha State Bank, 204 Wis. 2d 426, 442-43, 555 N.W2d 655, 661-62 (Ct. App. 1996). To determine whether Lynn satisfied this burden, we must first examine the scope of § 766.55(2)(cm).

¶ 16. Wisconsin Stat. § 766.55(2)(cm) protects an innocent spouse from personal liability for torts committed by the other spouse during marriage. Bothe v. American Family Ins. Co., 159 Wis. 2d 378, 382, 464 N.W.2d 109, 110 (Ct. App. 1990). We previously held that the statute is not ambiguous and plainly provides that satisfaction of a tort obligation may be made only from (1) property of the tortfeasor spouse that is not marital property, and (2) the tortfeasor spouse's interest in marital property. Id.; see also Schultz v. Sykes, 2001 WI App 260, 248 Wis. 2d 791, 638 N.W.2d 76, review denied, 2002 WI 23, 250 Wis. 2d 557, 643 N.W.2d 94 (Wis. Jan. 29, 2002), cert. denied, 536 U.S. 960 (June 28, 2002) (holding that during marriage, a judgment creditor may garnish the tortfeasor's interest in the innocent spouse's wages). The issue here is whether a restitution order imposed by a criminal judgment is an obligation "resulting from a tort committed by the spouse" under § 766.55(2)(cm) (emphasis added).

¶ 17. The purpose of all statutory construction is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506, 509 (1997). We give the language of an unambiguous statute its ordinary meaning. Id. Applying this test to Wis. Stat. § 766.55(2)(cm), we conclude that the underlying determination of whether an obligation resulted from a "tort" requires examination of the spouse's conduct that gave rise to the claim made. A tort is a wrongful act for which a civil remedy may be obtained. See Black's Law Dictionary 1496 (1994). We begin by noting that an individual's conduct may constitute a tort without a civil judgment so concluding. See Webster's New Collegiate Dictionary 1232 (1977) (defining "tort" as "a wrongful act for which a civil action will lie . . ." (emphasis added)). Additionally, the same act may be both a crime because it violates a state law and a civil tort against an individual. Prosser and Keeton on Torts § 2, at 8 (W Page Keeton et al. eds., Lawyers ed. 1984). Furthermore, there is nothing in the language of the statute to suggest that its purpose is to protect innocent spouses from liability only for obligations incurred as a result of a civil tort action. Instead, the statute shields an innocent spouse from some of the consequences of the other spouse's wrongful conduct. Accordingly, we conclude that § 766.55(2)(cm) classifies obligations resulting from a spouse's wrongful act during the marriage as an obligation for which only the tortfeasor spouse is personally liable.

¶ 18. Applying Wis. Stat. § 766.55(2)(cm) to the facts here, we note first that whether a spouse committed the act for which a civil remedy may be obtained presents a question of fact that is not disputed on appeal. At trial, the circuit court found that Richard committed a "horrendous property crime that continued on over many, many years" by repeatedly taking money from the Sokaogon without their permission. That conduct, for civil purposes, constitutes the tort of conversion. See Schara v. Thiede, 58 Wis. 2d 489, 497, 206 N.W2d 129, 133 (1973). Additionally, the court found that Lynn "had no active part in the taking of this money" and that the restitution order "is totally one hundred per cent incurred and the responsibility" of Richard. The Sokaogon does not contest the court's findings or Lynn's assertion that the restitution order resulted from a tort committed solely by Richard during the marriage. A proposition asserted by a respondent on appeal and not disputed by the appellant's reply is taken as admitted. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99, 101 (Ct. App. 1994). Accordingly, for the reasons stated above, we conclude that the circuit court properly classified the restitution order as Richard's individual obligation, according to the provisions of § 766.55(2)(cm).

¶ 19. To refute this conclusion, the Sokaogon argues, on policy grounds, that where a marital estate benefits from a tort committed by a spouse during the marriage, the subsequent restitution order should be a marital debt. The Sokaogon contends that "the State of Wisconsin [should not] shelter their marital estate from financial responsibility to the very members of the public they injured." The Sokaogon relies on Cadwell v. Cadwell, 126 Ariz. 460, 616 E2d 920 (Ct. App. 1980) and Bell v. Bell, 49 Cal. App. 4th 300, 56 Cal. Rptr. 2d 623 (Ct. App. 1996), for the proposition that if liability of the married person is based on an act preformed for the benefit of the community, it should be satisfied from the community estate. In short, the Sokaogon asks us to apply a "family purpose analysis" to obligations arising from a tort committed by a spouse. See Wis. Stat. § 766.55(2)(b). We decline to do so.

¶ 20. The original Wisconsin Marital Property Act contained no separate category for tort obligations. Keith A. Christiansen et. al., Marital Property Law in Wisconsin § 6.5 (2nd ed.' 1986). Torts were included in the general satisfaction scheme of Wis. Stat. § 766.55(2) that required an analysis of whether the tort was committed in the interest of the marriage or the family. Id. Section 766.55(2)(cm) was added by the 1985 Trailer Bill and by its terms, removes the necessity of a family purpose analysis for torts committed during the marriage. Id. Therefore, debts created by the torts of only one spouse are an exception from those debts incurred in the interest of the family. Accordingly, we decline the Sokaogon's invitation to "re-insert" a family purpose analysis into tort obligations, and we affirm the judgment of the circuit court.

CONCLUSION

¶ 21. Because the restitution order was the result of conduct that constituted the tort of conversion, which tort was committed by only one spouse, we affirm the circuit court's conclusion that the restitution order was Richard's sole obligation under Wis. Stat. § 766.55(2)(cm).

By the Court. — Judgment affirmed.

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

       The United States also intervened as a third party in the Derickson's divorce action but did not participate in the trial or this appeal.

       On appeal, Lynn moved to strike from the Sokaogon's reply brief an article from The Philadelphia Daily News and a criminal complaint from United States v. Fastow. Because the material was included to provide background for an argument grounded in public policy that has no bearing on our analysis regarding whether the restitution order is a marital obligation under Wis. Stat. § 766.55, we deny Lynn's motion to strike that portion of the reply brief.

       The procedural posture of this case is unusual because, in the Sokaogon's words, it "appeals only the trial court's finding that the ... restitution order is not a marital debt." Therefore, the case differs from a usual creditor's action against a spouse to reach his or her property to satisfy a debt, for example, a creditor's action to garnish a spouse's wages pursuant to Wis. Stat. § 803.045. However, because the Sokaogon "became a creditor as a direct result of the criminal acts of Richard," our analysis is driven by the rules regarding debtors' and creditors' rights and remedies. See Wis. Stat. § 766.55.

       We note that this decision does not preclude an action in rem by a creditor to realize on a lien On property that was part of the marital estate. For example, if the government should choose to foreclose on its lien for the restitution order that is an encumbrance on the Valley Road property, it could do so. However, Lynn would not be personally liable if the price obtained for the property was insufficient to satisfy the lien. Similarly, this decision does not address whether Wis. Stat. § 766.55(2)(cm) protects the property of an innocent spouse where a marital property division granting property to the innocent spouse is entered prior to the resolution of a criminal or tort action against the other spouse and the property awarded to the innocent spouse was acquired in whole or in part with money obtained by the tortious act of the other spouse.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    George T. Markos, Jr. and Catherine T. Hubert-Markos, Plaintiffs-Appellants, v. William R. Schaller, Karen L. Schaller and Town of Hamilton, Defendants-Respondents.

    Court of Appeals

      No. 02-1824.

      Submitted on briefs January 10, 2003.

      Decided July 3, 2003.

    2003 WI App 174
    (Also reported in 668 N.W.2d 755.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Bryant Klos of Klos, Flynn & Papenfuss - Chartered, La Crosse.
    On behalf of the defendants-respondents William R. Schaller and Karen L. Schaller, the cause was submitted on the brief of James W. McNeilly, Jr., La Crosse.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 10-1-03.

   LUNDSTEN, J.

¶ 1. George T. Markos Jr. and Catherine T. Hubert-Markos appeal a judgment of the circuit court declaring a portion of McClintock Road discontinued under Wis. Stat. § 80.32(2) (1997-98) and, therefore, private property belonging to William and Karen Schaller. The Markoses argue that the disputed portion of McClintock Road, providing access to property owned by the Markoses, remains a public highway because it has not been "entirely abandoned" within the meaning of § 80.32(2). We agree with the Markoses and, therefore, we reverse.

Background

¶ 2. The following facts are undisputed. The Markoses and the Schallers each own parcels of land in the Town of Hamilton. The controversy in this case centers on a small part of McClintock Road that crosses the Schaller property and can be used to gain access to the Markos property. To avoid confusion, we will consistently refer to the two properties as the "Schaller property" and the "Markos property," even when discussing activity occurring during prior ownership.

¶ 3. The following diagram omits several details, but it presents the features necessary to resolve this dispute. It shows the relevant portions of the Schaller property and the Markos property. The portion of McClintock Road shown with no shading is paved with blacktop. The parties agree this unshaded portion is a "public highway." The portion shown with shading is gravel. This shaded area is the disputed portion of McClintock Road.

The blacktop portion of the road passing through the Schaller property is about 200 feet long. The gravel portion of the road is approximately 40 feet long. All agree that prior to 1951, the entire length of McClin-tock Road running across the Schaller property was a public highway.

¶ 4. Prior to 1971, a predecessor of the current owners of the Schaller property owned both the Schaller property and the Markos property and this owner used McClintock Road, including the disputed portion, to access the Markos property. In 1971, the split occurred creating the Schaller property and the Markos property. Thereafter, a series of people owned the two properties.

¶ 5. The entire portion of McClintock Road passing through the Schaller property was gravel until 1977. In 1977, the unshaded portion indicated in the diagram was first blacktopped. The Town has not maintained the disputed portion of McClintock Road since 1951 and the owners of the Schaller property have, from time to time, maintained this portion of the road by using their tractor and grader to add gravel and level the road.

¶ 6. As explained above, until the properties were separated in 1971, both the paved and unpaved portions of McClintock Road were used by the owner of the Schaller property to access the Markos property because that owner owned both parcels. In 1971, a man named Bazzell Byers purchased the Markos property, and from 1971 to 1996 Byers used the disputed portion of McClintock Road at least once a year to access the Markos property. Karen Schaller testified that Byers used' the road with the permission of the owner of the Schaller property. In addition, Byers and a neighbor named Robert Ranney testified that from 1971 to 1996, they and several other persons used McClintock Road to gain access to the Markos property for various reasons.

¶ 7. The timing is not clear, but at some point the Town stopped plowing snow on the full length of McClintock Road crossing over the Schaller property. After McClintock Road was blacktopped, the Town snowplow pushed snow to the end of the blacktop portion of McClintock Road, thereby blocking the disputed portion of the road for some time periods during winter. Byers testified that this was not a problem while he owned the Markos property because he did not desire access to the Markos property during the winter months.

¶ 8. The Schallers purchased their property in 1976. Karen Schaller testified that "occasionally" other people used McClintock Road to access the Markos property, but if the Schallers didn't catch them on the way through they would "catch [them] going back out if we hadn't given them permission" to use the road. Karen Schaller testified she could sometimes tell that other persons had used McClintock Road without their permission to access the Markos property because vehicle tracks would be visible.

¶ 9. In 1996, a new owner of the Markos property, Timothy Wood, used McClintock Road to access his property. Wood used the road approximately six times during the two years he owned the property.

¶ 10. The Markoses purchased the Markos property from Wood in 1998. At that time, a truck was parked across the disputed portion of McClintock Road, blocking access to the Markos property. The ensuing dispute between the Markoses and the Schallers eventually prompted the Markoses to file an action for declaratory judgment in the circuit court seeking a determination of the status of both parts of McClintock Road crossing the Schaller property. There were several issues before the circuit court, but on appeal there is only one: whether the gravel portion of McClintock Road crossing the Schaller property remains a "public highway." The circuit court ruled that this portion of McClintock Road has been abandoned and is now owned by the Schallers. The circuit court stated:

[In regard to] the town road . .., I think that the use of that road, and I'm taking into account that there [are] gates on both ends, that the use of the road was either with permission from the Schallers or without their consent.... They could have sealed the fence entirely, but then that would have meant that they couldn't let Mr. Byers through when they wanted him to. But the people who were going in and out of the land to the northeast of the Schaller homestead . . . were in many instances doing it without permission.

The circuit court found that no highway funds had been expended on the disputed portion of the road since 1951 and that "any improvements that have been done there have been done by the Schallers or their predecessors in the property." The court concluded that the disputed portion of the road became the property of a prior owner of the Schaller property in 1956.

Discussion

¶ 11. The resolution of this case involves application of Wis. Stat. § 80.32(2) to undisputed facts. The application of a statute to undisputed facts is a question of law that we review de novo. See State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W2d 13 (Ct. App. 1989).

¶ 12. Wisconsin Stat. § 80.32(2) provides, in pertinent part: "any highway which shall have been entirely abandoned as a route of travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued." Because no highway funds have been expended on the disputed portion of the road for more than five years, the question here is whether the disputed portion of the road has been "entirely abandoned."

¶ 13. The Schallers contend, albeit indirectly, that a portion of a public highway may be "entirely abandoned" if the owners of the land the public highway crosses treat the highway as private property. They argue that the disputed portion of McClintock Road had been "entirely abandoned" by 1956 even though it was used by the owners and by another party with "consent" of the owner because the owner "could have sealed" off the road entirely. The Schallers rely on evidence indicating that the Town stopped maintaining the disputed portion of the road, that the Schallers and their predecessors treated the disputed portion of the road as their private property, and that a number of people believed the disputed portion of the road was private property.

¶ 14. The Schallers' reasoning is circular. Under this reasoning, the owner of land over which a public highway lies may begin treating the public highway as a private road, permit his or her actions to mislead others into believing the road is private and, thereby, convert the public highway to a private road. The flaw in this analysis is that it includes no point in time at which the owner obtains the right to treat the public highway as his or her private property. An owner may not convert a public highway to a private road by taking control of a road and leading others to believe that they need permission to use it, even when the state or local government has discontinued maintenance of the road.

¶ 15. We next determine whether the disputed portion of McClintock Road was "entirely abandoned" because there was a time period during which only the owner of the Schaller property used the road to access the Markos property. The Schallers admit in their appellate brief that the disputed portion of McClintock Road "was used as . . . access to the [Markos property] from 1951 to the time of trial." The Schallers assert, however, that from 1956 to 1971, the only documented use of the disputed portion of McClintock Road was by the owners of the Schaller property. Based on this factual assumption, the Schallers proffer the legal contention that a public highway is "entirely abandoned" if it is used only by the owner of the land over which the highway lies. In the Schallers' view, a contrary interpretation of "entirely abandoned" is unreasonable because it would mean that owners of property, encompassing a public highway on which no public funds are spent, would have to "refrain from using the road ... in order to [ensure] that the road does not remain a public highway."

¶ 16. The Markoses, relying on Lange v. Tumm, 2000 WI App 160, 237 Wis. 2d 752, 615 N.W2d 187, respond that under the relevant language of Wis. Stat. § 80.32(2), the identity of the user is irrelevant. We agree with the Markoses.

¶ 17. In Lange, we addressed the meaning of "entirely abandoned" under Wis. Stat. § 80.32(2), and explained that "if a highway 'was traveled by such of the public as had occasion to use it1 that is sufficient to keep the highway from being entirely abandoned." Lange, 237 Wis. 2d 752, ¶ 7 (citation omitted). In Lange, a public highway crossed on to Lange's land and ended there. Id., ¶ 2. No funds had been expended on the portion of the road contained within Lange's land for over five years. Id., ¶ 3. The circuit court declared that the portion of the road on Lange's land was discontinued, concluding that although Lange, his family members, and others continued to use the road, "Lange's use did not constitute 'the type of public use required' to keep a highway from being abandoned." Id., ¶ 4. We reversed and remanded because there were unresolved factual issues regarding the use of the road. Lange's allegations that his family and others continued to use the road created a factual dispute unsuitable for resolution by summary judgment. See id., ¶ 8.

¶ 18. The importance of Lange to the matter before us is that in Lange we rejected the proposition that an owner's use of the road was insufficient to prevent the road from being considered abandoned. We explained: "Even if only [the owner's] family and guests used the highway, that could be sufficient to keep the highway from being entirely abandoned.... In considering whether the highway was open to the public, it is irrelevant that it was only used by a small portion of the public." Id., ¶ 10. We also noted "that under § 80.32, if property owners are the only members of the public who desire to use a highway, they can keep the highway from becoming entirely abandoned by continuing to use it." Id., ¶ 3 n.2. Accordingly, we reject the Schallers' argument that use by a property owner does not constitute use by "the public."

¶ 19. It is understandable that the Schallers came to believe that they owned the disputed portion of McClintock Road. The Town stopped maintaining the section of road and the Schallers and their predecessor owners used their own construction equipment and materials to maintain it. Other persons, including the immediate prior owner of the Markos property, apparently believed the Schallers owned the road. However, the statutory question is whether a road has been "entirely abandoned," not whether parties reasonably believe a road is private property.

¶ 20. Based on the undisputed facts in the record before us, we declare that the disputed portion of McClintock Road has not been "entirely abandoned," as that term is used in Wis. Stat. § 80.32(2).

By the Court. — Judgment reversed.

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

       Neither party suggests that any of the facts are disputed with respect to any issue germane to our decision. In particular, nothing in the Schallers' brief rebuts the Markoses' reliance on testimony showing that the disputed portion of McClintock Road was used continuously since 1951 to access the Markos property. The Schallers themselves assert in their appellate brief that "[t]here is no question that the [disputed portion of McClintock Road] was used as an access to the [Markos property] from 1951 to the time of trial."

       Obviously, McClintock Road is not a "highway" as that term is commonly used. However, the statutory term for a public road is "public highway" and we will use the statutory term. We also note that although the public nature of the blacktop portion of McClintock Road on the Schaller property was disputed before the circuit court, it is now conceded that the blacktop portion of the road is a public highway.

       The full text of Wis. Stat. § 80.32(2) reads:
      Except as provided in sub. (5), every highway shall cease to be a public highway at the expiration of 4 years from the time it was laid out, except such parts thereof as shall have been opened, traveled or worked within such time, and any highway which shall have been entirely abandoned as a route of travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.

       The parties assume that the phrase "entirely abandoned" in Wis. Stat. § 80.32(2) requires abandonment for five years, but they do not discuss or provide authority for this proposition. We stress that we do not address the question of what length of time a portion of road must be abandoned to be "entirely abandoned." Rather, we assume, without deciding, that yearly use is sufficient to avoid abandonment within the meaning of § 80.32(2).

       We note that the statutes provide a procedure to follow if private citizens wish to discontinue a public highway, despite its continued use. See Wis. Stat. § 80.02.


text:
    Allan B. Levin, Plaintiff-Appellant, v. Board of Regents of the University of Wisconsin System, Defendant-Respondent.
    Court of Appeals

      No. 02-2278.

      Submitted on briefs February 7, 2003.

      Decided July 3, 2003.

    2003 WI App 181
    (Also reported in 668 N.W.2d 779.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Bruce F. Ehlke of Shneidman, Hawks & Ehlke, S.C., of Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Mary Woolsey Schlaefer, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶ 1. Allan B. Levin appeals the judgment that concluded that either claim preclusion or issue preclusion prevents him from relitigating the release of certain records by the University of Wisconsin. Because we conclude that all of the elements of claim preclusion have been met and that it was properly applied, we affirm the circuit court.

BACKGROUND

¶ 2. Levin is a former member of the faculty of the University of Wisconsin Medical School. In 1995, the University brought charges of misconduct against him and a faculty committee conducted a hearing on those charges. The committee issued written findings and conclusions, and recommended that Levin be discharged. Subsequently, the parties negotiated a settlement, under which Levin agreed to retire from his position at the University, rather than being discharged.

¶ 3. Several years later, a public records request was made for a copy of the faculty committee's findings and conclusions that resulted from the hearing on the allegation that Levin had engaged in misconduct. The record custodian for the University applied the public records balancing test and determined that the records should be released. The custodian notified Levin that the University would release the committee's findings and conclusions unless Levin filed a legal action to prevent release of the records on or before October 15, 2000.

¶ 4. On October 13, 2000, Levin filed an action against the Board of Regents of the University of Wisconsin System and two employees. Levin alleged that the defendants had previously released the committee's findings and conclusions, and he sought monetary damages for harm caused by the alleged prior release. He also sought to enjoin the Regents from permitting any further release of the records concerning his employment or the disciplinary proceedings. The complaint did not ask for review of the then pending open records request.

¶ 5. In order to facilitate a decision on the pending open records request and finalize it, the Regents moved for a de novo circuit court review of the record custodian's decision. The Regents and the other two defendants also moved to dismiss the complaint, based on failure to serve a notice of claim, sovereign immunity, failure to state a claim, claim preclusion and issue preclusion. The circuit court affirmed the record custodian's decision to release the requested records. It addressed and rejected Levin's argument that the parties had agreed to treat the disciplinary charges against Levin as having no merit, and it concluded that the release was appropriate.-

¶ 6. Levin petitioned for leave to appeal an interlocutory order and we denied that request. Subsequently, the circuit court granted the defendants' motion to dismiss all of the claims against them because Levin had not timely filed a notice of claim. Levin did not appeal the circuit court's final judgment.

¶ 7. On or before March 13, 2002, the University received another open records request relative to Levin. It was made by a different person, but requested the same findings and conclusions of the disciplinary committee. The record custodian again determined that the records should be released and gave notice to Levin. The custodian cited the judgment in the first Levin case that had affirmed the release of those records as one basis for his decision. Levin then commenced the current action from which this appeal arises. He attempts to block release of the committee's findings and conclusions.

¶ 8. The Regents moved to dismiss the complaint based on claim preclusion. The circuit court determined that either claim preclusion or issue preclusion barred Levin's suit, and it dismissed it. Levin appeals.

DISCUSSION

Standard of Review.

¶ 9. We review whether claim preclusion applies to a given set of facts as a question of law, applying de novo review to the question presented. Lindas v. Cady, 183 Wis. 2d 547, 552, 515 N.W.2d 458, 460 (1994).

Claim Preclusion.

¶ 10. Claim preclusion is a doctrine that prevents relitigation of the same, claim when: (1) there is an identity of parties or their privies in the prior lawsuit; (2) there is an identity of claims for relief that were brought, or could have been brought; and (3) a final judgment on the merits in a court of competent jurisdiction resolved the first lawsuit. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723, 728 (1995).

¶ 11. Claim preclusion prevents repetitive litigation. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 311, 334 N.W.2d 883, 885 (1983). Fairness to all parties and to the use of judicial resources require that at some point litigation over a specific controversy must come to an end. Id. However, claim preclusion should not be applied in a way that will deprive a party of a full and fair determination of an issue. Pasko v. City of Milwaukee, 2002 WI 33, ¶ 22, 252 Wis. 2d 1, 643 N.W.2d 72.

¶ 12. Here, it is agreed that the parties to both lawsuits are the same: Levin and the Board of Regents. Additionally, there is an identity of claims for relief in that both lawsuits focused on the release of exactly the same records. And further, there is no real question that there was a final judgment on the merits of the release of the records that was not appealed and reversed. Levin does argue that the dismissal of his prior lawsuit was not a final judgment because it was dismissed based on his failure to give the statutorily required notice of claim. However, the merits of the release of the records at issue here were also decided. If Levin had chosen to appeal the validity of the release of the records, he could have done so after the dismissal of his first lawsuit, as an appeal of that case would have brought before this court all earlier decisions adverse to Levin, the appellant. Wis. Stat. § 809.10(4) (2001-02).

¶ 13. The only question actually presented here is whether having two different requesters for the same records is a difference material to the analysis under the open records law such that it should prevent the application of claim preclusion. In Woznicki v. Erickson, 202 Wis. 2d 178, 183-84, 549 N.W2d 699, 701 (1996), the supreme court established a balancing test that must be applied when the record requested involves an individual's privacy or reputational interest. We review de novo whether the public's interest in disclosure is outweighed by the overriding public interest in keeping the records confidential. Id. at 195, 549 N.W.2d at 706. We conclude that a difference in the requesters for the same public records is not material to the decision about whether to release the records.

¶ 14. In State ex rel. Ledford v. Turcotte, 195 Wis. 2d 244, 536 N.W.2d 130 (Ct. App. 1995), we reviewed a prison inmate's request for records relating to potential wrongdoing by prison employees. We explained that public employees who engage in potentially illegal conduct should have no expectation that the records relating to that conduct will be kept from the public's view. We instructed that:

Ledford's status as a prison inmate does not affect the disposition of his request. Neither the identity of the requester nor the reasons underlying the request are factors that enter into the balance. See § 19.35(l)(i), Stats, (request may not be refused because requester is unwilling to be identified or to state the purpose of the request).

Ledford, 195 Wis. 2d at 252, 536 N.W.2d at 133. Furthermore, in Kraemer Bros., Inc. v. Dane County, 229 Wis. 2d 86, 102, 599 N.W.2d 75, 83 (Ct. App. 1999), we reaffirmed that the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release the records.

¶ 15. In support of his contention that the identity of the specific requester is relevant, Levin relies on Kraemer Brothers, State ex rel. Morke v. Record Custodian, 159 Wis. 2d 722, 465 N.W.2d 235 (Ct. App. 1990) and Klein v. Wisconsin Resource Center, 218 Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998). We conclude that none of these cases provides support for Levin's assertion.

¶ 16. As we noted above, Kraemer Brothers cites and affirms the conclusion stated in Ledford that the identity of the requester is not a factor that affects whether public records should be released. In Morke, the court affirmed a custodian's decision to deny access to the names, home addresses and home telephone numbers of employees of Fox Lake Correctional Institution. The requester was a former inmate in the Wisconsin Correctional System. We affirmed the custodian's denial of access to the records because we concluded that the balance between the public's interest in disclosure and the public's interest in protecting the employees' privacy fell in favor of privacy. Our decision did not turn on Morke's identity as a prior inmate, but rather on the conclusion that the safety and well-being of prison staff and their families far outweighed the interest served by disclosure of the records. Morke, 159 Wis. 2d at 726, 465 N.W2d at 236.

¶ 17. In Klein, the requesters were patients at the Wisconsin Resource Center who requested Klein's personnel file. In affirming the denial of release of Klein's file, we concluded that the overriding public interest in Klein's well-being and protection from harassment outweighed the strong presumption in favor of public access. Klein, 218 Wis. 2d at 496-97, 582 N.W.2d at 47-48. There is no statement in the opinion that in any way undercuts our conclusion in Ledford that the identity of the requester is not material to a determination of whether to release a public record.

¶ 18. Accordingly, we conclude that Levin's assertion that the identity of the requester is material to the balancing of interests required by Woznicki is contrary to well-established precedent. We have been presented with no other reason why claim preclusion should not apply to preclude relitigation of the legality of the release of the findings and conclusions of the committee. Our de novo review of the factors necessary to the application of claim preclusion causes us to conclude that there is an identity of parties, an identity of claims and that a final judgment approving the release of these records has been made and not appealed. Therefore, we affirm the judgment of the circuit court dismissing Levin's lawsuit.

CONCLUSION

¶ 19. Because we conclude that all of the elements of claim preclusion have been met and that it was properly applied, we affirm the circuit court.

By the Court. — Judgment affirmed.

       WISCONSIN Stat. § 809.10(4) states in relevant part:
      Matters renewable. An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.

       The parties also discuss issue preclusion. However, because we have concluded that claim preclusion was properly applied, we do not address issue preclusion. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W2d 559, 562 (Ct. App. 1983) (court need address only dispositive issues).


author: CANE, C.J.

text:
    Ryan M. Tomsen, Plaintiff-Appellant, Kristina Tomsen, Plaintiff, State of Wisconsin Department of Health and Family Services, Involuntary-Plaintiff, v. Secura Insurance and Jody L. Hayes, Defendants-Respondents.

    Court of Appeals

      No. 03-0245-FT.

      Submitted on briefs May 5, 2003.

      Decided July 8, 2003.

    2003 WI App 187
    (Also reported in 668 N.W.2d 794.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Timothy J. Aiken and James C. Gallanis oí Aiken & Scoptur, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Rick E. Hills and Michelle M. Stoeck of Hills Legal Group, Ltd. of Waukesha.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-1-03.

   CANE, C.J.

¶ 1. Ryan Tomsen appeals an order denying him double costs and interest on a judgment against Secura Insurance and Jody Hayes (Secura). Tomsen was injured in an automobile accident Hayes caused in December 2001. In July 2002, Tomsen made a Wis. Stat. § 807.01 settlement offer for $200,000 to Hayes and her insurer, Secura. Secura did not accept the offer. After further discovery and a denial of Secura's request that Tomsen be found negligent as a matter of law, Secura made a § 807.01 settlement offer to Tomsen for $450,000 plus costs in December 2002. Tomsen accepted.

¶ 2. Tomsen then requested double costs under Wis. Stat. § 807.01(3) and interest under § 807.01(4). The trial court denied the motion because the judgment was entered based on a stipulation and did not reflect a "decision on the merits." We conclude the trial court incorrectly denied double costs and interest to Tomsen and therefore reverse the order.

¶ 3. Wisconsin Stat. § 807.01(3) and (4) state:

Settlement offers.
(3) After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
(4) If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid. Interest under this section is in lieu of interest computed under ss. 814.04 (4) and 815.05 (8).

¶ 4. The parties disagree whether Tomsen recovered a "judgment" under these two sections. Although the interpretation and application of a statute is a question of law we review independently of the trial court, Estate of Schneider, 150 Wis. 2d 286, 289, 441 N.W.2d 335 (Ct. App. 1989), the parties' actual dispute is whether Prosser v. Leuck, 225 Wis. 2d 126, 592 N.W.2d 178 (1999), or Osman v. Phipps, 2002 WI App 170, 256 Wis. 2d 589, 649 N.W.2d 701, applies to the facts of the case. The parties each contend that one case applies to the exclusion of the other. While we determine that Prosser controls, we also conclude that both cases can be reconciled with the facts as presented.

¶ 5. Tomsen argues that Prosser is on point and, therefore, he is entitled to double costs and interest. In Prosser, Prosser made a Wis. Stat. § 807.01 settlement offer of $99,750 to resolve his property damage claim with the defendant's insurer. Prosser, 225 Wis. 2d at 133. After an unsuccessful coverage trial and appeal, the insurer offered to pay the policy's $100,000 limit, and the parties eventually stipulated to judgment in that amount. Id. at 134. However, the circuit court denied Prosser's request for double costs and interest under Wis. Stat. § 807.01(3) and (4). Id. at 135. The supreme court determined he was entitled to both because the parties' stipulated judgment was greater than Prosser's offer of settlement. Id. at 143. Tomsen contends the situation here is similar: Secura did not accept his settlement offer of $200,000 and under the stipulated judgment he later recovered $450,000. Therefore, he contends, he is entitled to double costs and interest.

¶ 6. Secura argues that Osman controls. Osman was injured in an automobile accident while driving a rental car owned by Enterprise Rent-a-Car. Osman, 256 Wis. 2d 589, ¶ 2. Enterprise was self-insured for $25,000, the statutory minimum. Id. Osman offered to settle with Enterprise for $16,900, but Enterprise refused. Id., ¶ 3. After mediation, Enterprise offered to settle for $25,000. Id., ¶ 4. Osman rejected this offer and Enterprise filed a motion to tender the $25,000 to the circuit court. Id. Later, Osman's counsel requested the $25,000 be deposited into his trust account and the circuit court issued an order providing that if Enterprise failed to timely pay the $25,000, judgment in that amount would be entered against it. Id., ¶ 5. Enterprise paid the $25,000 and, consequently, judgment was never entered. See id. The trial court eventually awarded double costs and interest. Id., ¶ 6. We reversed because the trial court had never entered judgment. Rather, it entered an order providing that judgment would be entered if Enterprise failed to pay. Id., ¶ 8.

¶ 7. In support of its argument that double costs and interest are inappropriate here, Secura points to our discussion in Osman of what constitutes a judgment. Particularly, Secura relies on our statement that "Either a final or an interlocutory judgment requires that 'a decision on the merits has been made.'" Id., ¶ 12 (citing Shuput v. Lauer, 109 Wis. 2d 164, 170, 325 N.W2d 321 (1982)). Secura contends that because the trial court in Osman never made "a decision on the merits," the document ordering Enterprise to pay was not a judgment. Id. Secura argues that Osman requires that a judgment must be one on the merits for a trial court to award double costs and interest under Wis. Stat. § 807.01(3) and (4) and this means that the case was "litigated and submitted for determination to the court," and must result in a verdict. Because the judgment here was pursuant to a stipulation, Secura contends it is not one on the merits, and therefore the trial court correctly denied Tomsen costs and interest.

¶ 8. We agree with Tomsen that Prosser controls. In Prosser, the supreme court determined that Prosser was entitled to costs and interest, and there judgment was entered on a stipulation. Prosser, 225 Wis. 2d at 143. Similarly, the parties here stipulated to the judgment, and it was greater than Tomsen's earlier settlement offer. While Secura correctly points out that the issue regarding costs and interest in Prosser was whether the judgment was "greater than or equal to" the settlement offer, rather than whether judgment was recovered, the supreme court nonetheless approved double costs and interest on a stipulated judgment greater than the plaintiffs earlier Wis. Stat. § 807.01 settlement offer. Id. at 144. Similarly, the parties here reached a stipulated judgment greater than Tomsen's earlier § 807.01 settlement offer. He is entitled to double costs and interest.

¶ 9. We are not persuaded by Secura's argument that a judgment on the merits must involve litigation and submission to the court and result in a verdict. A trial is not required to determine that the merits of the claim have been litigated. In re L.S.G., 170 Wis. 2d 231, 237-38, 487 N.W.2d 644 (Ct. App. 1992) (citing Great Lakes Trucking Co. v. Black, 165 Wis. 2d 162, 168-69, 477 N.W.2d 65 (Ct. App. 1991)). In addition, a stipulation may act as a final judgment. Id. In L.S.G., a father sought to reopen a court's finding of paternity because it was based solely on his admission and, therefore, he claimed, not decided "on the merits." Id. at 237. We rejected his claim and concluded the paternity issue had been resolved on the merits, even though it was based solely on the father's admission. Id. at 238. Similarly, we conclude Tomsen and Secura's stipulated judgment resolves their dispute on the merits even though it did not result from litigation or a resolution of a disputed issue by the trial court.

¶ 10. The focus of Osman is that the trial court's action did not amount to a judgment. The court required that Enterprise pay $25,000 or have a judgment for that amount entered against it. Osman, 256 Wis. 2d 589, ¶ 5. That action by the court did not constitute a judgment, but was an order stating that if Enterprise failed to comply, judgment would be entered. Because Enterprise complied with the court's order, no judgment was entered, and Osman was not entitled to costs and interest under Wis. Stat. § 807.01(3) and (4). Here, however, the parties agreed to a judgment that was greater than Tomsen's earlier settlement offer. He is entitled to double costs and interest.

By the Court. — Order reversed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


text:
    State of Wisconsin, Plaintiff-Respondent, v. St. Croix County, Defendant-Appellant.
    Court of Appeals

      No. 02-1645.

      Submitted on briefs December 9, 2002.

      Decided July 10, 2003.

    2003 WI App 173
    (Also reported in 668 N.W.2d 743.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Gregory A. Timmerman, corporation counsel for St. Croix County of Hudson.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lorraine C. Stoltzfus, assistant attorney general, and James E. Doyle, attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. At the State's direction, St. Croix County passed a zoning ordinance (the river-way ordinance) to regulate the portion of the Lower St. Croix River that lies within the County. Later, the County amended the riverway ordinance so that it did not apply to the portion of the Lower St. Croix River that is under federal administration. This left that portion of the river without riverway zoning adequate to meet the State's mandate to the County. Therefore, the State sued to nullify the County's amendment. As a defense to the State's action, the County claims that the federal government preempted the regulation of the Lower St. Croix River in the federally administered area; the State lacks authority to regulate in the federal zone; andWis. Stat. § 30.27 (2001-02), which required the passage of the riverway zoning in the first instance, is no longer valid. The circuit court granted summary judgment to the State. Because we conclude that the Wild and Scenic Rivers Act did not preempt State and local governmental regulation of the Lower St. Croix River; the State has authority to exercise its police power in the federal zone; and § 30.27 remains in full force and effect, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. In 1968, Congress enacted the Wild arid Scenic Rivers Act, 16 U.S.C. § 1271 et seq. It declared as the policy of the United States that certain selected rivers shall be preserved and protected because of their scenic beauty, recreational, geological, historic, culture and other positive values. The initial provisions included the St. Croix River from Taylor Falls, Minnesota to Gordon, Wisconsin, but not the southern part of the St. Croix River south of Taylor Falls. However, in 1972, Congress enacted the Lower St. Croix River Act as an amendment to the Wild and Scenic Rivers Act, and included the 52-mile section of the St. Croix River below Taylor Falls to the confluence with the Mississippi River as part of the National Wild and Scenic River System. 16 U.S.C. § 1274(a)(9). According to the Act, the upper 27-mile segment of the Lower St. Croix River is to be administered by the federal government and is referred to as the "federal zone." The lower 25-mile segment is to be administered by the states of Minnesota and Wisconsin and is referred to as .the "state zone."

¶ 3. In response to the Act's amendment, the Wisconsin Legislature enacted Wis. Stat. § 30.27. Section 30.27(2) directed the Wisconsin Department of Natural Resources to adopt by rule, as soon as possible, guidelines and specific standards for riverway zoning ordinances for the banks, bluffs and bluff tops of the Lower St. Croix River. Section 30.27(3) requires counties, cities, villages and towns to adopt riverway zoning that complies with the DNR's guidelines and standards. Section 30.27(3) also permits the DNR to adopt an ordinance for a city, county, village or town if a city, county, village or town does not adopt a riverway zoning ordinance within the time prescribed, or the DNR determines that the ordinance that was adopted does not satisfy its requirements.

¶ 4. The DNR adopted the required guidelines and standards as Wis. Admin. Code ch. NR 118. In 1975, St. Croix County adopted St. Croix Ordinance § 17.36 as riverway zoning to regulate the Lower St. Croix River. However, in 1977, the DNR determined that the County's ordinance was not restrictive enough and the DNR replaced the initial ordinance with a version it drafted, but which the County continued to be required to administer.

¶ 5. The ordinance affected more than the state-administered portion of the river. It also extended into the federal zone that lies within the County. For reasons not explained in this appeal, in February 2000, the County decided to amend § 17.36 so that it would not affect county lands in the federal zone, as well as lands outside of the riverway district, but within the "total visibility zone." It did so by changing the boundaries of the area affected by its riverway zoning, as follows:

[S]ec. 17.36, St. Croix County Zoning Ordinance, is hereby amended by correcting the Lower St. Croix Riverway district boundaries to be those areas within the 25-mile State administered portion of the riverway district consistent with the master plan boundaries, published in the Code of Federal Regulations, and attached hereto.

¶ 6. The master plan referred to in the County's amended ordinance is required by the Act, which provides that the Secretary of the Interior is to prepare a development plan for the St. Croix River in consultation with appropriate agencies in Wisconsin and Minnesota. 16 U.S.C. § 1281(e). The master plan includes a determination of lands, waters and interest therein to be acquired, developed and administered by the agencies or political subdivisions of the states of Wisconsin and Minnesota. The master plan provides for state administration of the state zone and for the continued administration by the states of such state parks and fish hatcheries that lie in the federal zone.

¶ 7. In response to the County's ordinance amendment, the State filed a lawsuit seeking a declaration that the County's ordinance amendment was null and void as it affects the federal zone of the riverway district. The State asserted that the amendment was passed in violation of Wis. Stat. § 30.27(3) and that the riverway zoning that had been in place prior to the amendment was still in full force and effect. The State sought an order enjoining the County from removing that portion of the Lower St. Croix district known as the "federal zone" from the reach of riverway zoning and requiring the County to continue to enforce the ordinance in the federal zone, as it had previously. On cross motions for summary judgment, the circuit court granted the State's motion and the County appeals.

DISCUSSION

Standard of Review.

¶ 8. Because this appeal is from summary judgment granted to the State, our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). As part of our review, we must interpret statutes and apply them to undisputed facts. The interpretation of statutes and their application to undisputed facts are also questions of law on which we do not defer to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 365-66, 560 N.W.2d 315, 317 (Ct. App. 1997).

Federal and State Law Interaction.

¶ 9. The County contends that the State is prohibited from enacting statutes requiring ordinances that control the portion of the St. Croix River that is federally administrated under the Act because Congress preempted regulation in this zone and also because Congress did not specifically state that local governments could regulate in the federal zone. The County relies on the provisions in the Act that specifically empower the State of Wisconsin and the State of Minnesota to continue to administer state parks and fish hatcheries that are within the federal zone, and to acquire lands in the federal zone, the use of which is consistent with the master development plan required by the Act. It is the County's position that these specified activities exclude other activities not specifically mentioned, such as those set out in the riverway zoning that it repealed. In contrast, the State contends that federal administration does not encompass zoning regulation; that local and federal regulations can coexist in the federal zone so long as the local regulations do not conflict with the Act; and that there is no conflict here. We agree with the State.

¶ 10. Federal and local governments often share the regulation of areas and activities, unless there is a clear and manifest congressional indication of an intent to preempt the field. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). When the local regulation is in an area where local police powers are typically exercised, as in zoning, we assume those historic police powers were not superceded by federal law. Id. Although local governmental regulation cannot conflict with federal law regulating the same area or activity, "courts are not to seek out conflicts between [local] and federal regulation where none clearly exist." Pacific Legal Found. v. State Energy Res. Conservation & Dev. Comm'n, 659 F.2d 903, 919 (9th Cir. 1981). Additionally, the Wisconsin Supreme Court has held that federal law preempts state action in only three situations: (1) where Congress expressly requires no state or local regulation; (2) where Congress implicitly demonstrates its intent to occupy the field; or (3) where state law conflicts with federal law. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 34, 563 N.W.2d 460, 464 (1997).

1. Relevant Federal Law.

¶ 11. We begin with a review of the federal law that bears on this issue. The Act has many river-components and each one has a designated federal administrator. The Department of the Interior, operating through the National Parks Service, is the administrator of the federal zone of the St. Croix River. 16 U.S.C. § 1274(a)(6); Wis. Admin. Code § NR 118.02(1). "Administration" is not defined in the act, but the Act does empower the federal administrator to enter' into cooperative agreements with state and local governments for "the planning and administration of components of the system which include or adjoin State- or county-owned lands." 16 U.S.C. § 1281(e). However, the federal administrator must retain oversight authority under all cooperative agreements. See National Park & Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 20 (D.D.C. 1999) (concluding that federal administrator cannot lawfully delegate all its oversight duties to local governments).

¶ 12. The master plan for the Lower St. Croix River also requires local governments "to 'develop zoning controls along the St. Croix that are consistent with the purposes of the Wild and Scenic Rivers Act' and contains recommended zoning provisions for state and local governments." VoiceStream Minneapolis, Inc. v. St. Croix County, 212 F. Supp. 2d 914, 929 (W.D. Wis. 2002) (citation omitted). These provisions of the master plan apply in both administration zones. See Kiernat v. County of Chisago, 564 F. Supp. 1089 (D. Minn. 1983) (upholding county zoning authority exercised in the federal zone of the St. Croix in Minnesota). Furthermore, the Act specifically provides in 16 U.S.C. § 1284(d) that state jurisdiction over the waters included in the Act is unchanged. Waters subject to state jurisdiction are in both the state and the federal zones.

2. Relevant State Law.

¶ 13. Wisconsin Stat. § 30.27(2) requires the DNR to adopt, by rule, guidelines and specific standards for local zoning ordinances that will apply to the banks, bluffs and bluff tops of the Lower St. Croix River. Section 30.27(3) provides for the implementation of the DNR's guidelines and standards created under § 30.27(2). Subsection (3) states:

Implementation. Counties, cities, villages and towns lying, in whole or in part, within the areas affected by the guidelines adopted under sub. (2) are empowered to and shall adopt zoning ordinances complying with the guidelines and standards adopted under sub. (2) within 30 days after their effective date. If any county, city, village or town does not adopt an ordinance within the time limit prescribed, or if the department determines that an adopted ordinance does not satisfy the requirements of the guidelines and standards, the department shall immediately adopt such an ordinance. An ordinance adopted by the department shall be of the same effect- as if adopted by the county, city, village or town, and the local authorities shall administer and enforce the ordinance in the same manner as if the county, city, village or town had adopted it. No zoning ordinance so adopted may be modified nor may any variance therefrom be granted by the county, city, village or town without the written consent of the department, except nothing in this section shall be construed to prohibit a county, city, village or town from adopting an ordinance more restrictive than that adopted by the department.

¶ 14. As a starting point, we note that all administration, state and federal, must be in keeping with the preservation policy underlying the Act, as expressed in 16 U.S.C. § 1271:

It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.

The County does not contend that prior to amendment, the riverway zoning was not an appropriate response to the State's directive or that the State's directive is in conflict with specific provisions of the Act. Additionally, the County has not identified any areas in which the federal policy is not being promoted by the riverway zoning at issue here, and we have identified none. Furthermore, the County has offered no precedent to show that the State has lost its ability to zone in the federal zone of the riverway district. In this regard, we conclude that the reasoning of the district court in Kiernat is persuasive. In Kiernat, county zoning was upheld in the federal zone of the St. Croix River in Minnesota because the master plan, prepared as a cooperative plan by state and federal administrators, contained recommended zoning provisions for local and state governments. Kiernat, 564 F. Supp. at 1094. The same master plan provisions for state and local governments pertain here. Accordingly, we conclude the State retains the power to authorize zoning in the federal zone at issue here. Furthermore, given the Act's stated areas of federal and state cooperation, the absence of any explicit or implicit statement of federal preemption and the cooperation evidenced in the master plan, we conclude that the federal government has not preempted the regulation of the Lower St. Croix River in either the federal or the state zone.

State Statute's Effect on County.

¶ 15. The County also contends that once the master plan was implemented, the purpose of Wis. Stat. § 30.27 was fulfilled, and the statute no longer has any effect on the County's actions in regard to riverway zoning. In essence, the County contends that § 30.27 has an unstated sunset provision. It cites no authority for this novel argument, and we could find none. Additionally, the current master plan, itself, specifically relies on local zoning ordinances. It states, in part:

Local governments adopt zoning ordinances based on state rules. Special zoning guidelines are needed in the riverway to protect the river's outstanding values as discussed in the Cooperative Management Plan.

¶ 16. When we interpret statutes, our goal is to determine the intent of the legislature. Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. We begin with the language chosen by the legislature. Id. Here, the legislature gave no indication that Wis. Stat. § 30.27 will expire or become ineffective at some future date. Additionally, the County has identified no statutory language or case law on which it relies. We may decline to fully address issues that are not adequately developed with legal argument, State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W2d 633, 642 (Ct. App. 1992), and we do so here. Accordingly, we conclude that the formation of the master plan has no effect on the validity of § 30.27, and it remains in full force and effect.

¶ 17. Counties are creatures of the State, and as such they have no authority to refuse to follow a statutory directive, absent a showing that the statute is unconstitutional or is infirm in some other respect. See Silver Lake Sanitary Dist. v. DNR, 2000 WI App 19, ¶ 8, 232 Wis. 2d 217, 607 N.W.2d 50. No meritorious arguments in this regard have been made relative to Wis. Stat. § 30.27. Section 30.27(3) requires that an ordinance adopted by the DNR shall have the same effect and shall be administered by the County just as though the County had drafted the ordinance. Accordingly, the riverway zoning put in place by the DNR for the Lower St. Croix remains effective, and we affirm the judgment of the circuit court nullifying the amendment to the County's riverway zoning because it was enacted in excess of the power granted to the County by the State.

CONCLUSION

¶ 18. Because we conclude that the Wild and Scenic Rivers Act did not preempt State and local governmental regulation of the Lower St. Croix River; the State has authority to exercise its police power in the federal zone; and Wis. Stat. § 30.27 remains in full force and effect, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       We use the 2001-02 version of the statute because it is virtually unchanged from what the legislature passed in 1974. Additionally, all further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       We refer to the amended Wild and Scenic Rivers Act as "the Act" throughout this opinion.

       The "total visibility zone" includes all lands that can be seen from the river, but it is broader than what Congress authorized as part of the riverway system. The State agrees the County had the authority to remove these lands from the effect of riverway zoning.

       16 U.S.C. § 1284(d) provides:
      State jurisdiction over included streams. The jurisdiction of the States over waters of any stream included in a national wild, scenic or recreational river area shall he unaffected by this Act. .. to the extent that such jurisdiction may be exercised without impairing the purposes of this Act... or its administration.