text:
    Daniel Steinbach, Cynthia Steinbach, Chuck Rhein, Mary Rhein, Hugh Zwieg, Pamela Zwieg, Steve Kennedy, Karen Kennedy, Linus Schoepp, Donna Schoepp, Bob Van Metre, Barbara Van Metre, Jack Johnson, Beth Johnson, Leonard M. Teifeld, Anna Styka-Teifeld, Steve Swokowski, Julie Olson, Stout Krug Krug & Ryan, Gary Flatland, Peggy Flatland, John Waggoner, Karen Waggoner, William Bohnen, Linda Bohnen, Robert Connolly, Lynn Connolly, Bob Drisner, Ellen Drisner, John Tennyck, Art Krug, Dewi Krug, Carol Tennyck, Alan Ruud, and Susan Ruud, Petitioners-Respondents, v. Green Lake Sanitary District, Respondent-Appellant.
    Court of Appeals

      No. 03-2245.

      Oral argument July 1, 2004.

    Decided September 15, 2004.

    2004 WI App 192
    (Also reported in 688 N.W.2d 740.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of William P. O'Connor, Tracy K. Kuczenski, and Mary Beth Peranteau of Wheeler, Van Sickle & Anderson, S.C., Madison. There was oral argument by William P O'Connor.

    On behalf of the petitioners-respondents, the cause was submitted on the brief of Kent A. Tess-Mattner of Schmidt Rupke Tess-Mattner & Fox, S.C., Brookfield, and Steven R. Sorenson of Sorenson Koenig Law Office, Ripon. There was oral argument by Kent A. Tess-Mattner.

    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 1-11-2005.

   SNYDER, J.

¶ 1. The Green Lake Sanitary District (the District) appeals from a judgment and an order reducing the availability assessment levied against the respondents, individual owners of Sunrise Point Resort and Yacht Club Condominiums (Sunrise Point). We conclude that the District's exercise of its police powers was not clearly unreasonable. We reverse the judgment and order of the circuit court and reinstate the original assessments levied by the District.

FACTS

¶ 2. The District operates a wastewater treatment plant and a sanitary sewer collection system. The treatment works and initial sewer collection lines were constructed in the early 1990s and since then the system has been extended several times. The construction and expansion of the District's sewer collection system were financed by special assessments on property served by the system.

¶ 3. The District's board of commissioners had considered extending the sewer system along the south shore of Green Lake after reviewing petitions from land owners and various preliminary engineering and feasibility studies. On June 20, 2000, the commissioners adopted a preliminary resolution declaring their intention to exercise special assessment powers to extend sanitary sewer service to serve additional lands within the District, including Sunrise Point and approximately 198 other properties. Sunrise Point is an eighteen-unit condominium structure in Green Lake.

¶ 4. In July 2001, the District received a signed Petition for Removal of Lot from Green Lake Sanitary District Sewer Expansion from each of the Sunrise Point condominium unit owners.

¶ 5. Pursuant to the preliminary resolution, the District's administrator and consulting engineers prepared a Special Assessment Report under Wis. Stat. § 66.0703(5) (2001-02), which included the plans and specifications for the proposed sewer extension (to include Sunrise Point), an estimate of the project costs, and a schedule of assessments against the properties to be served by the planned sewer improvements. In November 2001, the District conducted a public hearing under § 66.0703(7) where interested persons were provided with an opportunity to be heard concerning the matters contained in the Special Assessment Report. Sunrise Point's counsel and several representatives of Sunrise Point testified at the public hearing. The improvements were constructed during the first several months of 2002 and were completed on July 30, 2002.

¶ 6. The commissioners allocated the special assessments to the benefited properties in accordance with the District's Final Resolution 2001-03, which was adopted December 8, 2001. Pursuant to its assessment policy, the District levied a base assessment (availability) on each buildable lot to which sanitary sewer service is made available by the sewer extension. The amount of the availability assessment was $4730.

¶ 7. Additionally, a connection assessment was levied on each structure actually connected to the sewer system. Under the District's special assessment policy, the amount of the connection assessment is based on the projected volume of wastewater flow from the property and varies with the use of the property. Single-family residences were assessed a connection assessment of $5930. The District assessed each condominium unit as it would a single-family home.

¶ 8. The special assessment levied against each of Sunrise Point's condominium units was comprised of both the availability assessment and the single-family home connection assessment.

¶ 9. In March 2002, Sunrise Point filed its petition for circuit court review of the District's determination to levy special assessments pursuant to Wis. Stat. § 66.0703(12)(a). The petition alleged that the special assessment levied against the condominium units was unfair, arbitrary and capricious, and that the methodology employed by the District violated § 66.0703 as well as the District's assessment policy.

¶ 10. In accordance with Wis. Stat. § 66.0703(12)(a), the District filed a Statement of Proceedings, including a comprehensive record of the District's actions on the special assessments. The parties submitted a Stipulated Statement of Facts in November 2002.

¶ 11. On February 5, 2003, following a telephone status conference, the circuit court ordered that Sunrise Point could file a supplemental pleading for certio-rari review of the District's determination to extend sanitary sewer service to include Sunrise Point. Subsequently, Sunrise Point advised the circuit court and the District that’ it had elected not to pursue certiorari review and that it was abandoning that portion of its claim. Accordingly, by an order dated March 10, 2003, the circuit court dismissed Sunrise Point's claims relating to the inclusion of its condominium property within the sewer expansion. The amount of the assessment remained in dispute.

¶ 12. After briefing and oral argument, the circuit court determined that a portion of the special assessment levied against the condominium units (the availability component) was "incorrect." The court issued a judgment and order directing the District to reduce the availability assessment on each of Sunrise Point's condominium units to one-eighteenth of the original availability assessment, from $4730 to $263. The connection assessment amount was not modified. The judgment and order also gave Sunrise Point owners the right to request a hearing before the commissioners on the petitions through which they sought to remove their condominium units from the sewer extension area. The District appeals.

DISCUSSION

¶ 13. The District argues that its special assessment represented an exercise of its police power and must be affirmed if it is reasonable. Whether a special assessment is reasonable is a question of law which we review de novo. Lac La Belle Golf Club v. Village of Lac La Belle, 187 Wis. 2d 274, 281, 522 N.W.2d 277 (Ct. App. 1994). However, we review any factual determinations made by the trial court in reaching its reasonableness determination under the clearly erroneous standard. Id. at 281-82.

¶ 14. The law presumes that the District proceeded reasonably in levying the assessment, and the challenger bears the burden of going forward. See id. at 281. The police power of a municipality is broad, and generally "courts may intercede only when the exercise of that power is clearly unreasonable." Id. "The amount to be assessed against all property for the proposed work or improvement shall be apportioned among the individual parcels in the manner designated by the governing body." Wis. Stat. § 66.0703(2). Nonetheless, an assessment must pass three legislative requirements:

First, the assessment must be levied upon property in a limited and determinable area. Wis. Stat. § [66.0703](l)(a). Second, it must be levied only for the special benefits conferred on the property. Id. Third, if an assessment represents an exercise of the police power, the assessment must have a reasonable basis as determined by the governing body of the city, town or village. Wis. Stat. § [66.0703](l)(b).

Genrich v. City of Rice Lake, 2003 WI App 255, ¶ 19, 268 Wis. 2d 233, 673 N.W.2d 361. The third requirement incorporates a dual analysis of uniformity and uniqueness. Id., ¶ 20. "Uniformity requires the assessment to be fairly and equitably apportioned among property owners in comparable positions." Id., ¶ 21. The "uniqueness" analysis recognizes that some unique circumstances may require a reduction in the special assessment. Id., ¶ 22.

¶ 15. Here, Sunrise Point takes issue with the legislative requirement of reasonableness, and particularly the issue of uniformity. Sunrise Point also argues that the District ignored the condominium owners' petitions to be excluded from the sewer extension and thereby violated due process protections. We take each issue in turn.

Reasonableness of the Districts Special Assessment

¶ 16. The District's authority to levy special assessments exists by right of statute under Wis. Stat. § 66.0703, which states in relevant part:

[A]ny city, town or village may, by resolution of its governing body, levy and collect special assessments upon property in a limited and determinable area for special benefits conferred upon the property by any municipal work or improvement; and may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of the special assessments.

Sec. 66.0703(l)(a). If, as here, a special assessment is levied pursuant to an entity's police power, "the assessment shall be upon a reasonable basis as determined by the governing body ...." See § 66.0703(l)(b). There is no single formula or per se reasonable method for apportioning assessments; instead, the facts of the particular situation govern the determination of whether the assessment is made upon a reasonable basis. Peterson v. City of New Berlin, 154 Wis. 2d 365, 374, 453 N.W.2d 177 (Ct. App. 1990). A special assessment "may include the direct and indirect cost, the resulting damages, the interest on bonds or notes issued in anticipation of the collection of the assessments, a reasonable charge for the services of the administrative staff1 and other expenses attributable to the proposed work or improvements. Sec. 66.0703(2).

¶ 17. The special assessment levied by the District consisted of two components: (1) the availability assessment of $4730, and (2) the connection assessment of $5930. Pursuant to the District's Resolution 97-02, an availability assessment is levied "upon each lot, regardless of size, accessibility by public or private road or easement, corner location or other characteristics" to which sewer service is made available. Resolution 97-02 defines a "lot" as:

[A] lot of record or a parcel of record as recorded at the office of the Green Lake County Register of Deeds which is listed as a separate tax key parcel by the Green Lake County Tax Listing Office or which is not listed as a separate tax key parcel but which is taxed as a part of one or more lots whose ownership includes an interest in the unlisted lot.

¶ 18. Sunrise Point argues that the condominium property as a whole should have been assessed as a single lot. The District responds that its availability assessment was fairly and uniformly levied against all single-family residential property owners of record. The parties' arguments hinge on the definition of a "lot" in Resolution 97-02. Sunrise Point stresses that the condominium owners' land, in the aggregate, is recorded with the Green Lake County Register of Deeds as "Lot 1 of Certified Survey Map No. 1401." The argument follows, therefore, that Sunrise Point condominiums should be assessed "only a single availability assessment against the lot" because the recorded instrument refers to the entire premises as Lot 1. Sunrise Point posits that the method employed by the District to assess the Southshore Terrace mobile home park should have been used to assess the condominiums. There, the District levied a single availability assessment against Southshore Terrace as a whole, even though Souths-hore Terrace comprised fifty-five mobile home sites.

¶ 19. The circuit court agreed with Sunrise Point, ruling that the mobile home park was comparable to the condominium property, and therefore the availability assessment should have been applied consistently to both. Belying on Peterson, the circuit court held that the availability assessment levied against Sunrise Point was incorrect. In Peterson, the city extended sewer and water service to a residential subdivision in which the lots were of comparable size but, due to varied shapes along winding roads, the lots had significantly different street frontages. Peterson, 154 Wis. 2d at 368. The city assessed the lots based on front footage. Id. at 369. The Petersons owned a lot with a comparatively large street frontage and challenged the assessment methodology, arguing that the city should have employed a unitary or lump sum methodology. Id. at 368-69. On appeal, we held that an assessment is unreasonable if the chosen assessment method (1) has an "entirely disproportionate distribution" (2) on a group of property owners, (3) which can be easily avoided by the municipality's use of another assessment methodology. Id. at 373.

¶ 20. The District argues that a condominium unit is a distinct parcel of record and, as such, each unit is subject to an individual assessment under the definition of a lot in Resolution 97-02. It contends that there was no disproportionate effect on Sunrise Point because its assessment methodology "properly treats condominium units the same as other parcels, whether held as platted lots or other listed tax parcels." Further, the District argues that the circuit court's analogy between Sunrise Point condominium units and a mobile home park is incorrect. Finally, the District states that any alleged disproportionate effect would not be easily avoided by the use of another assessment methodology.

¶ 21. We agree with the District. Here, the circuit court ruled that "South Shore Homeowners Association [the mobile home park] is a condominium in a de facto sense, you have people receiving identical services under essentially identical circumstances. The only thing that makes it different is the legal status under which it exists." This is incorrect. The mobile home park, regardless of the number of trailer units, is a single parcel of record that provides sites for mobile home trailers. In contrast, condominium units created by the recording of the condominium declaration and plat become individual parcels of record. The character of condominium ownership is set forth by statute:

Every unit and its percentage of undivided interest in the common elements shall be deemed to be a parcel and shall be subject to separate assessments and taxation by each assessing unit and special district for all types of taxes authorized by law including, but not limited to, special levies based on the value of property and special assessments. Neither the building, the property nor any of the common elements shall be deemed to be a parcel separate from the unit.

Wis. Stat. § 703.21(1). Unlike mobile home units, condominium units constitute real property. Wis. Stat. § 703.04. For purposes of analysis, therefore, the residential condominium units are comparable to other single-family parcels of record.

¶ 22. We agree with the District's observation that:

A property owner's election to subject property to the condominium form of ownership provides both advantages and disadvantages. By establishing independent real property interests, the condominium unit owner is secure from the risk that his [or her] property could be jeopardized by the failure of a co-owner to make timely tax or mortgage payments. But the election to establish separate tax parcels for each owner can also elevate the aggregate assessed value of a condominium and affect the determination and allocation of special assessments. These consequences flow from the nature of condominium ownership as that has been authorized by the Legislature.

¶ 23. We hold that the two-tiered lump sum assessment levied by the District against the Sunrise Point condominium owners was not clearly unreasonable and, therefore, does not warrant interference by the courts. See Lac La Belle Golf Club, 187 Wis. 2d at 281. The lump sum method of assessment has been recognized as an acceptable approach, and the District's assessment treated comparable properties uniformly, resulting in equal assessments for single-family residential real estate parcels in the District. See Genrich, 268 Wis. 2d 233, ¶ 21. The availability assessment levied against each individual condominium unit should be reinstated as originally assessed by the District.

Due Process and Sunrise Point's Petition to be Excluded from the System

¶ 24. On July 3, 2001, Sunrise Point condominium owners each filed a Petition for Removal of Lot from Green Lake Sanitary District Sewer Expansion. Sunrise Point contends that it was never provided a meaningful opportunity to present its objections to the District representatives. It further contends that it was denied due process as a result of the District's failure to consider the petitions.

¶ 25. The District responds that Sunrise Point waived its right to object to inclusion in the sewer expansion and had no legal standing to raise the issue in the first place.

¶ 26. We conclude that Sunrise Point was not deprived of its due process rights. The District levied the special assessment in accordance with its police powers and was not obligated to exclude Sunrise Point even if the owners so desired. See State ex rel. Vanderbloemen v. Town of West Bend, 188 Wis. 2d 458, 465, 525 N.W.2d 133 (Ct. App. 1994) (a property owner has no vested right to be excluded from a sanitary sewer system).

¶ 27. Furthermore, Sunrise Point was provided an opportunity to pursue certiorari review of the District's determination to include its condominium units in the sewer expansion. In a letter dated February 27, 2003, Sunrise Point expressly abandoned the issue and notified the circuit court that it would not pursue certiorari review. Waiver, a voluntary and intentional relinquishment of a known right, is clearly demonstrated by the record. See Bank of Sun Prairie v. Opstein, 86 Wis. 2d 669, 681, 273 N.W.2d 279 (1979). For these reasons, Sunrise Point has not endured a violation of its due process rights.

CONCLUSION

¶ 28. We conclude that the two-tiered lump sum assessment methodology implemented pursuant to the District's policy was not clearly unreasonable. Furthermore, we conclude that the availability assessment levied against each individual condominium unit was consistent with the assessment levied against other single-family residential real estate parcels of record and produced uniform and equal assessment amounts for similarly situated property owners. We reverse the circuit court's recalculation of the availability assessment and reinstate the original assessment levied by the District.

¶ 29. Sunrise Point has waived any right to raise due process claims, and we hold that it cannot now challenge the process by which the District determined to include Sunrise Point in the sewer expansion.

By the Court. — Judgment and order reversed.

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

       The connection assessment is levied "on each lot which includes any habitable building or accessory connection to the sanitary sewer system." It reflects the estimated volume of wastewater flow to the sewer system. Sunrise Point does not dispute the connection portion of the special assessment levied against each individual condominium unit.

       Sunrise Point refers to Southshore Terrace as a fifty-five unit mobile home park. We cannot find this description of Southshore Terrace in the record; however, a preliminary engineering report refers to a fifty-five unit mobile home park called Reich Mobile Home Park in Area 7 of the Green Lake Sanitary District. Because the name is not critical to our analysis, we refer to the mobile home property as Southshore Terrace.


source: Caselaw Access Project

author: ANDERSON, PJ.

license: Public Domain

text:
    Anthony L. Alsum and Sandra L. Alsum, Plaintiffs-Appellants, v. Wisconsin Department of Transportation, Defendant-Respondent.
    Court of Appeals

      No. 03-2563.

      Oral argument August 18, 2004.

    Decided September 15, 2004.

    2004 WI App 196
    (Also reported in 689 N.W.2d 68.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Martin J. De Vries of Sager, Colwin, Samuelsen & Associates, S.C., Fond du Lac, and Hugh R. Braun of Godfrey, Braun & Frazier, LLP, Milwaukee. There was oral argument by Hugh R. Braun.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Sandra L. Tarver, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by Sandra L. Tarver.

    Before Anderson, PJ., Brown and Snyder, JJ.
   ANDERSON, PJ.

¶ 1. In this eminent domain case, Anthony L. and Sandra L. Alsum appeal from a circuit court order granting the Wisconsin Department of Transportation's (DOT) motion to dismiss and motion to exclude the appraisal report and testimony of the Alsums' own valuation expert, which, using income evidence, demonstrated that the Alsums were entitled to $95,344 in severance damages. The Alsums maintain that because evidence of comparable sales was unavailable, their valuation expert's report and testimony on severance damages was admissible.

¶ 2. After reviewing the record, we conclude that the circuit court failed to provide any reasoning for its discretionary determination that the sales offered by the DOT were sufficiently similar to provide a basis for valuing the property. Further, we cannot find any basis in the record for the circuit court's exercise of discretion in admitting the comparable sales evidence. We, therefore, reverse and remand the matter to the circuit court so that it may demonstrate, on the record, that it examined the relevant facts and applied the proper legal standard pertaining to comparable sales.

FACTS

¶ 3. The relevant facts are as follows. The Alsums purchased the 121.5-acre dairy farm in 1989. One year later, the Alsums built a new fifty-stall barn on the land, which they use as a milking facility. In the late spring of 2002, the DOT took title to the 36.31 acres in the center of the Alsums' farm, leaving them with two separate and unconnected parcels of land. The Alsums property now contains an approximately 70-acre front lot and a severed approximately 12-acre irregularly shaped parcel.

¶ 4. Anthony testified that the Alsums have to cross the road to access the severed 12-acre parcel. He testified that the taking left him with a greater percentage of poorly drained soils, which places him at a disadvantage. He further testified that because of the taking, he will have to change the approach he takes to his dairy operation. His testified that if he cannot grow his crops, he will have to either purchase feed or reduce the number of cows he milks. He testified that he has not yet changed the number of animals he has on the farm. Anthony also averred that if he attempts to replace the 36 acres, he will have to purchase land "down the road" and incur the added expense of commuting to the land.

¶ 5. Both the DOT and the Alsums hired valuation experts to appraise the land before and after the taking to assist the court in its just compensation determination. The DOT's valuation expert, Dennis Badtke, appraised the "before the take value" of the entire 121.5-acre parcel at $450,000 and the "after the take value" of the remaining 82-acre parcel to be $350,000, for a total loss in market value of $100,000. Badtke concluded that the loss of the 36 acres did not affect the building site or the dairy operation and, as a result, severance damages were not warranted.

¶ 6. The Alsums’ valuation expert, Daniel Cribben, found a before value of $460,000 and an after value of $360,000, for a loss of $100,000 not including severance damages. Cribben determined that severance damages further reduced the value after the taking by $95,344, for a total difference between the before and after values of $195,344. In his report, Cribben attributed severance damages to the loss of "carrying capacity" caused by the property's reduced feed producing land base. Cribben estimated that the loss of 36 tillable acres eliminated the ability to feed roughly 15 cows; thus, creating "[e]xcess [c]apacity to the '[l]arger [p]ar-cel"' and causing a "[l]oss of [n]et [ijncome from [c]ow displacement."

¶ 7. According to Cribben, the excess capacity to the larger parcel caused damages of $29,589.51 in the form of lost rental income over the remaining economic life of the farm operation, discounted at current long-term mortgage rates. Cribben also concluded that the displacement of 15 cows caused damages of $65,754.47 in lost net income. This figure was calculated as the net present value of the farm's lost net income from the elimination of 15 cows over the operation's remaining economic life, discounted at current mortgage rates. Cribben affirmed these conclusions in his deposition.

¶ 8. The DOT moved to exclude Cribben's use of the income approach, arguing that it violated Rademann v. DOT, 2002 WI App 59, ¶ 28, 252 Wis. 2d 191, 642 N.W.2d 600, which reaffirmed the rule that income evidence is never admissible where there is evidence of comparable sales. Without explanation, the trial court granted the DOT's motion in a written order. Thereafter, at a pretrial hearing, the Alsums made an oral motion to reconsider the court's order excluding the income approach from evidence. The court denied the motion and rejected the Alsums request to submit a revised appraisal report.

¶ 9. The Alsums subsequently provided the DOT with a modification to the severance damage portion of Cribben's original report. The cover letter advised that the enclosed modification "omit[ed] 'any mention of any factors which could be construed as an income approach.' " In the "modification," Cribben found severance damages of exactly $95,344. He attributed the damages to the "economic impact to the remainder parcel after the taking." According to the modification, the taking "render[ed] the farm buildings obsolete."

¶ 10. The DOT moved to exclude Cribben's modification, arguing that the modification was still based on the income approach, and to dismiss the case as moot. The court agreed and excluded Cribben's "sanitized version" from evidence. The court reasoned that because there was evidence of comparable sales, the income approach was inadmissible. The court then dismissed the case as moot because both valuation experts were in agreement that, severance damages aside, the before value less the after value totaled $100,000. This appeal follows.

DISCUSSION

¶ 11. On appeal, the Alsums maintain that the $100,000 award does not adequately compensate them for the taking. They assert that the circuit court erroneously relied upon the comparative sales approach to estimate the value of their property after the taking, reasoning that the DOT'S valuation expert was unable to provide evidence of the selling prices of comparable properties. They then submit that because there was no evidence of comparable sales, the income approach to the appraisal of their severed properties, which was presented in Cribben's report, represents the most accurate way to determine damages in their case.

¶ 12. The rules that govern the determination of just compensation are provided in Wis. Stat. § 32.09 (2001-02). In a partial takings case, like the one here, the measure of just compensation is the difference between the fair market value of the whole property before the taking and the fair market value of the remaining property after the taking. Sec. 32.09(6). Severance damages may be considered in determining the fair market value of the property immediately after the taking. See § 32.09(6)(e); Wis JI — Civil 8105. Severance damages, which must be distinguished from the value of the property actually taken, are defined as the diminution in the fair market value of the remaining land that occurs because of the taking. See Wis JI — Civil 8105; § 32.09(6)(e).

¶ 13. The three recognized methods of measuring fair market value before and after the taking are (1) the comparable sales approach, (2) the cost approach, and (3) the income approach. Nat'l Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 23, 263 Wis. 2d 649, 665 N.W.2d 198. Evidence of net income is ordinarily inadmissible for purposes of establishing property values in condemnation cases involving commercial enterprises because business income is dependent upon too many variables to serve as a reliable guide for determining fair market value. Leathem Smith Lodge, Inc. v. State, 94 Wis. 2d 406, 413, 288 N.W.2d 808. However, there are exceptions to the general rule of inadmissibility of income evidence: (1) when the character of the property is such that profits are produced without the labor and skill of the owner, (2) profits reflect the property's chief source of value, and (3) the property is so unique that comparable sales are unavailable. Id.

¶ 14. As noted, the oft-cited general rule is that income evidence is never admissible where there is evidence of comparable sales. Id. at 413. Only "[wjhere property is so unique as to make unavailable any comparable sales data[J evidence of income has been accepted as a measure of value." Id. (citation omitted). Accordingly, we must first address whether there was evidence of comparable sales that would, without further inquiry, render Cribben's income analysis inadmissible.

¶ 15. The question of whether the sales offered by the DOT are sufficiently comparable to provide a basis for valuing the Alsums' farm is within the sound discretion of the circuit court. See e.g., Rademann, 252 Wis. 2d 191, ¶ 19; Weeden v. City of Beloit, 29 Wis. 2d 662, 668, 139 N.W.2d 616 (1966). Thus, a circuit court's determination of the acceptability of sales as compa-rables will not be reversed in the absence of clear error. Rademann, 252 Wis. 2d 191, ¶ 20.

¶ 16. We will sustain the circuit court's discretionary decision if the court examined the relevant facts, applied the proper legal standard and used a rational process to reach a conclusion that a reasonable judge could reach. See State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30 (1998). The record must reflect, however, "that discretion was exercised, including evidence that the trial judge undertook a reasonable inquiry and examination of the facts as the basis for his [or her] decision." State v. Speer, 176 Wis. 2d 1101, 1116, 501 N.W.2d 429 (1993).

¶ 17. The circuit court simply stated that it found that there were comparable sales. The circuit court provided no reasoning for its decision. "When a circuit court fails to set forth its reasoning, appellate courts independently review the record to determine whether it provides a basis for the circuit court's exercise of discretion." Sullivan, 216 Wis. 2d at 781. Accordingly, we independently review the record to determine whether it provided a basis for the circuit court's exercise of discretion in admitting the DOT's comparable sales evidence. See State v. Gray, 225 Wis. 2d 39, 51, 590 N.W.2d 918 (1999).

¶ 18. Evidence of the selling prices of comparable properties may be used for two purposes: as substantive evidence to establish value or simply as evidence qualifying or showing foundation for an expert's opinion. Calaway v. Brown County, 202 Wis. 2d 736, 741-742, 553 N.W.2d 809 (Ct. App. 1996). When, as here, sales are offered as substantive evidence of property value, the other property must be closely comparable to the property being taken. That is, the properties must be located near each other and sufficiently similar in relevant market, usability, improvements and other characteristics so as to support a finding of comparability. Id. Thus, simply because the properties offered for comparison are similar in size to the property in question, does not mean that those properties are sufficiently comparable to establish value. A more thorough analysis is required.

¶ 19. Here, the DOT'S own appraiser characterized the Alsums' property as a terminal dairy farm; meaning that once the Alsums cease farming, the land will be converted to another use. This is primarily due to the fact that the DOT took a large percentage of the tillable acres of the farm and the land can no longer support a 50-stall dairy farm. Further, the Alsums' property is now severed into two distinct noncontiguous parcels; one of irregular shape and size that is ill suited for dairy farming. As a result, the operational capacity of the farm is reduced and access to the smaller parcel is more difficult. These factors clearly bear upon the property's usability, character and the market in which the property would be sold.

¶ 20. The properties used for comparison in the DOT's expert's report were dairy farms. However, the record does not demonstrate that the farms were terminal dairy farms nor does it demonstrate that the properties used were literally severed like the Alsums' property. It appears that the properties used were all contiguous operational dairy farms. We, therefore, cannot find any basis for the circuit court's discretionary determination that comparable sales were available.

¶ 21. Because the circuit court provided no reasoning for its decision and we cannot find any basis in the record for the circuit court's exercise of discretion in admitting the comparable sales evidence, we remand the matter to the circuit court so that it may demonstrate, on the record, that it examined the relevant facts and applied the proper legal standard for comparable sales evidence to those facts.

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

       The record does not contain a transcript of a motion hearing on this issue.

       We pause briefly to address the DOT's submission that the Alsums waived the question of whether there was evidence of comparable sales because the Alsums did not raise the issue before the trial court. The DOT is mistaken. In the Alsums' Memorandum in Opposition to DOT Motion to Dismiss, they specifically argued, "Since there are no comparable sales that can identify the difference between the before and after value of the Alsum farm, Cribben's use of the income approach should not be excluded." Thus, while the circuit court did not fully address the issue, the Alsums preserved the issue for appeal by raising it in their memorandum.

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

       We remind the circuit court that, if it concludes that the Alsums' property is unique and evidence of comparable sales is unavailable, the rule in Wisconsin is that income evidence is admissible. This is particularly true in cases involving farm land. In Weyer v. Chicago, Wis. & N. R.R. Co., 68 Wis. 180, 180-84, 31 N.W. 710 (1887), a severance damage case involving the acquisition of a railroad right-of-way, the court stated, "[i]n estimating the value of farming land, its productiveness, or the income which may [he] derived from it, is always considered. Indeed, there is no better nor safer criterion than this to get at its real value." This holding has since been reaffirmed. See Stolze v. Manitowoc Terminal Co., 100 Wis. 208, 214, 75 N.W. 987 (1898); Lambrecht v. State Highway Comm'n of Wis., 34 Wis. 2d 218, 225-26, 148 N.W.2d 732 (1967).


author: NETTESHEIM, J.

text:
    Robert S. O'Kon and Brenda J. Ferron, Plaintiffs-Appellants, v. Frederick A. Laude, Defendant-Respondent.
    Court of Appeals

      No. 03-2819.

      Submitted on briefs August 11, 2004.

    Decided September 15, 2004.

    2004 WI App 200
    (Also reported in 688 N.W.2d 747.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of J. Steen Heil of Gonyo Law Office of Berlin.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jeffrey T. Haase of Seising Law Office of Berlin.
    Before Brown, Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. By summary judgment, the trial court ruled that the adverse possession claim of Robert S. O'Kon and Brenda J. Ferron (collectively, O'Kon) against Frederick A. Laude was barred by the thirty-year statute of limitations set forth in Wis. Stat. § 893.33(2) (2001-02). In so ruling, the court rejected OKon's argument that his action was not barred because he qualified under the owner-in-possession exception in subsec. (5) of the statute. We conclude that the summary judgment record establishes a genuine issue of material fact as to whether O'Kon is the owner of the disputed property by virtue of adverse possession under Wis. Stat. § 893.25 and, therefore, whether he falls under the owner-in-possession exception to § 893.33(2). We reverse the trial court's grant of summary judgment and remand for further proceedings.

BACKGROUND

¶ 2. The facts are brief and undisputed. On or about April 11,1985, O'Kon acquired his boyhood home in Berlin, Wisconsin, from his mother by warranty deed. O'Kon's family had owned the property since 1935. Laude bought the adjoining property in October 2000. Laude's record title includes the area in dispute, which is an eight- to ten-foot strip of land situated adjacent and contiguous to the southern boundary of O'Kon's property.

¶ 3. O'Kon's complaint alleged that he and his predecessors in interest "have used or otherwise occupied [the area in dispute] in an open and hostile manner, exclusive of every other right and continuously for more than twenty years." O'Kon's residence is situated on a portion of the disputed area. The complaint further alleged that the strip of land has been continuously "mowed, cleared and cultivated" by O'Kon and his predecessors in interest for a period of twenty years "resulting in the presence of an occupational line running from the northeast corner of [Laude's] garage in an easterly direction to the easternmost boundary of [O'Kon's] property." By way of relief, O'Kon requested a declaratory judgment confirming his ownership of the disputed area by adverse possession. Laude's answer denied the material allegations of the complaint and sought dismissal of O'Kon's action.

¶ 4. On July 12, 2002, O'Kon submitted a Plat of Survey depicting the property at issue, and on August 22, 2002, he submitted a letter brief accompanied by supporting affidavits from previous occupants of the O'Kon residence attesting to the continuous use of the disputed area by O'Kon and his predecessors since 1935. Laude filed a reply letter brief asserting that O'Kon's adverse possession claim was barred by Wis. Stat. § 893.33(2), which, subject to certain exceptions, bars a claim to the title or possession of land based "upon any transaction or event occurring more than 30 years prior to the date of commencement of the action . . . Since O'Kon claimed continuous use of the property since 1935, more than thirty years prior to the commencement of the action, Laude sought dismissal of O'Kon's action.

¶ 5. Laude filed a motion for summary judgment contending that O'Kon's claim was barred by the thirty-year time limitation set out in Wis. Stat. § 893.33(2). Following a hearing, the trial court entered an order dismissing O'Kon's adverse possession claim, except as to that portion of the disputed area physically occupied by O'Kon's residence. Relying on the court of appeals decision in Shelton v. Dolan, 224 Wis. 2d 334, 591 N.W.2d 894 (Ct. App. 1998), the court ruled that O'Kon's adverse possession claim was subject to the thirty-year recording requirement set forth in Wis. Stat. § 893.33(2), regardless of whether O'Kon could qualify for the owner-in-possession exception set out in subsec. (5) of the statute. O'Kon's original appeal of the court's ruling was dismissed by this court on grounds that the trial court's order was nonfinal based on the court's retention of jurisdiction as to the portion of the property underlying O'Kon's residence.

¶ 6. On August 15, 2003, O'Kon filed a motion to amend the judgment either by granting summary judgment in his favor or by clarifying the order so as to render it a final decision for purposes of appeal. In support of his request that the court grant summary judgment in his favor, O'Kon cited a recent decision of the supreme court, O'Neill v. Reemer, 2003 WI 13, 259 Wis. 2d 544, 657 N.W.2d 403, which overruled Shelton and which clarified the application of the statute of limitations set forth in Wis. Stát. § 893.33. The O'Neill court agreed with Shelton that § 893.33(2) applied to claims of adverse possession but further concluded that the owner-in-possession exception to the thirty-year statute of limitation also applies to adverse possession cases. O'Neill, 259 Wis. 2d 544, ¶ 28 ("[T]he use of the term 'owner' in the owner-in-possession exception was intended to include those who own by adverse possession.").

¶ 7. Following a hearing on O'Kon's motion, the trial court ruled that O'Kon was the owner in possession of the parcel of land physically occupied by his residence, but was not an owner in possession of the remaining portion of the disputed area. O'Kon appeals the latter portion of the court's ruling.

DISCUSSION

¶ 8. In arguing for reversal, O'Kon relies on the supreme court's decision in O'Neill which addressed the owner-in-possession exception to Wis. Stat. § 893.33. O'Kon contends that he qualifies for the owner-in-possession exception if he can prevail on his adverse possession claim and that material issues of fact exist as to whether he has adversely possessed the disputed area.

¶ 9. We review an order granting summary judgment independently using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). Any doubt as to the existence of a genuine issue of material fact should be resolved against the party seeking summary judgment. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

¶ 10. Wisconsin Stat. § 893.25 recognizes actions to establish title to real estate based on a claim of adverse possession. Wisconsin Stat. § 893.33(2) is the statute of limitations governing such claims. As applied to this case, the statute bars an action affecting the possession or title of any real estate which is founded upon any event occurring more than thirty years prior to the date of the commencement of the action unless within that thirty years there is an instrument or notice of claim recorded with the register of deeds. However, this limitations period is subject to an owner-in-possession exception set forth at subsec. (5). It provides: "[The thirty-year recording requirement] does not apply to any action commenced... by any person who is in possession of the real estate involved as owner at the time the action is commenced." Sec. 893.33(5).

¶ 11. In O'Neill, the supreme court explained the purpose of the thirty-year recording requirement set forth in Wis. Stat. § 893.33(2) and the reasoning underlying the owner-in-possession exception:

The purpose of the 30-year recording requirement is to enhance the marketability of title to real estate and protect purchasers of real estate from stale claims challenging their title or possession. Under the 30-year recording requirement, a person who claims ownership rights as the result of an event loses the right to bring a claim based on that event if an instrument or notice of claim is not recorded within 30 years of the event. Adverse possession for the period of time necessary under the circumstances to obtain title is considered to be an "event" covered by the 30-year recording requirement and the 30-year period commences to run upon the expiration of that period.
The owner-in-possession exception ensures that the rights of owners who are in possession of their property are not affected if they have not made the filings of record that would otherwise be necessary under the 30-year recording requirement. The exception does not impair the purpose of the 30-year recording requirement because the expectations of purchasers of property, whose interests are protected by the 30-year recording requirement, are different if the property that they are purchasing is clearly possessed by a party outside the chain of record title. This notice by possession and resulting difference in expectations provides the foundation of the owner-in-possession exception to the 30-year recording requirement.

O'Neill, 259 Wis. 2d 544, ¶¶ 10-11 (citations and footnote omitted).

¶ 12. O'Neill makes clear that the "use of the term 'owner' in the owner-in-possession exception was intended to include those who own by adverse possession." Id., ¶ 28. O'Neill additionally instructs that in determining whether a plaintiff qualifies for the owner-in-possession exception to Wis. Stat. § 893.33, a court must first determine the validity of the plaintiffs claim of ownership by adverse possession pursuant to Wis. Stat. § 893.25. See O'Neill, 259 Wis. 2d 544, ¶¶ 33, 36-37.

¶ 13. Here, in examining O'Kon's claim in light of O'Neill, the circuit court determined that an owner in possession required something more than adverse possession. The circuit court stated that there must be a "possessory interest that was clear, notorious, open and anybody walking on the property... would not have reasonably questioned . .. the probable property line." As to the disputed land not directly underneath O'Kon's home, the circuit court determined that O'Kon had failed to establish sufficient facts upon which to establish ownership and, therefore, his claim was barred by the statute of limitations under Wis. Stat. § 893.33(2). The court also stated:

[T]he portion under the house is, based on O'Neill, owned by Mr. O'Kon as owner in possession of that property, and that the rest of the land claimed by Mr. O'Kon is subject to his claim of adverse possession, but would be barred by the statute of limitations for failure to have some filing made to assert that claim, because that is clearly not owner in possession ....

The trial court's statements suggest that it, like the Shelton court, misinterpreted the application of the owner-in-possession exception as permitting proof of a claim of adverse possession which, even if established, would be subject to the thirty-year recording requirement. See O'Neill, 259 Wis. 2d 544, ¶¶ 21, 24.

¶ 14. Based on O'Neill, we agree with O'Kon that the trial court erred when ruling that the summary judgment record did not create a material issue of fact on O'Kon's adverse possession claim, which, if successful, would qualify the claim under the owner-in-possession exception to the time bar imposed by Wis. Stat. § 893.33.

¶ 15. Wisconsin Stat. § 893.25 governs claims of adverse possession, not founded on written instruments. It provides in relevant part:

(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by s. 893.14 and 893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841.
(2) Real estate is possessed adversely under this section:
(a) Only if the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right; and
(b) Only to the extent that it is actually occupied and:
1. Protected by a substantial enclosure; or
2. Usually cultivated or improved.

¶ 16. In support of his claim of adverse possession, O'Kon alleged in his complaint that he and his predecessors in interest had "mowed, cleared and cultivated" the subject property for a period of twenty years. Accompanying his brief to the court in support of his claim for adverse possession were affidavits from his brothers, his mother, and a longtime neighbor, James Bella. O'Kon also submitted photographs taken on the disputed piece of property illustrating the use of the property by O'Kon's predecessors in interest. The affidavit of O'Kon's brother, Donald, who had lived in the O'Kon home from 1938 until 1959, averred that the O'Kon family had "always cut grass" on the property, had planted raspberries and gardens on the property and had piled debris on the property line. He stated that the "cutting, planting and working of the area" was done in accordance with seasonal uses. O'Kon's brother Daniel, who resided on the property from 1948 until 1967, also recalled having a garden on the disputed tract of property which they tilled, weeded and plowed every year.

¶ 17. The affidavit of O'Kon's mother confirms O'Kon's understanding of the disputed property line and use of property in question. Finally, the affidavit from O'Kon's neighbor, James Bella, also confirms O'Kon's understanding of the property lines between the two houses based on the existence of a garden which ran "right up against the shed and garage" and "continued all the way to the back of the property." Bella has been a neighbor for fifty-six years and recalls the garden existing until the 1980's when O'Kon cleared the property and began to maintain and mow a lawn in that area. O'Kon's representations are not disputed by Laude in the summary judgment record.

¶ 18. We conclude that O'Kon's summary judgment evidence, which attest to the cultivating and improving of the property in question, see Wis. Stat. § 893.25(2)(b)2, are sufficient to raise a genuine issue of material fact as to the claim of adverse possession, especially in the absence of any evidentiary proof to the contrary.

¶ 19. In reaching our decision, we observe that in O'Neill, the affidavits submitted in support of the O'Neills' claim of adverse possession averred that a barbed wire fence was erected in 1944 by the O'Neills' predecessor in title to keep in livestock and that the O'Neills and their predecessors had used the disputed strip of land for pasturing and hunting from 1944 until the time of the alleged trespass by the record title holder, James Reemer. O'Neill, 259 Wis. 2d 544, ¶¶ 2-3. The affidavits submitted by Reemer in opposition to the O'Neills' claims asserted that the fence consisted of only a few strips of barbed wire and that the area was a wild and overgrown natural area. Id., ¶ 4. Based on this record, the supreme court concluded that the O'Neills could qualify for the owner-in-possession exception and that the summary judgment record demonstrated a genuine issue of material fact as to the O'Neills' claim for adverse possession. Id., ¶ 36. The court remanded for further proceedings on that question. Id., ¶ 37.

¶ 20. Here, O'Kon has submitted at least as much evidence in support of his adverse possession claim and Laude submitted nothing to the contrary. That arguably might have entitled O'Kon to summary judgment. However, on appeal O'Kon does not develop an argument for that relief. Instead, he complains only about the trial court's grant of summary judgment to Laude. Therefore, we limit our mandate to the relief sought by O'Kon — a reversal and a remand for further proceedings on O'Kon's claim for adverse possession. The resolution of that question will, in turn, determine whether O'Kon qualifies under the "owner-in-possession" exception.

CONCLUSION

¶ 21. O'Kon's uncontested summary judgment evidence would permit a fact finder to find in favor of his adverse possession claim. We reverse and remand for further proceedings on that claim.

By the Court. — Order reversed and cause remanded.

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

       O'Kon later gave Ferron an interest in the property by warranty deed dated September 13, 1989.

       We note that O'Kon's submission of this evidentiary material and the parties' submission of briefs preceded Laude's motion for summary judgment. O'Kon's letter brief, addressed to the trial court, states that the brief is submitted "[plursuant to your request." Beyond that, neither the parties' briefs nor the trial court record reveals what procedure prompted these submissions. Regardless, neither party registers any objection to the procedure or to the fact that the trial court considered these submissions when making its summary judgment ruling.

       The trial court retained jurisdiction as to this portion of O'Kon's complaint. Later the court granted summary judgment to O'Kon as to this portion of the disputed area. Laude does not cross-appeal this ruling, and we do not address it further. Thus, our discussion is limited to that portion of the disputed area which is not physically occupied by O'Kon's dwelling.

       During the course of his oral argument in opposition to Laude's motion for summary judgment, O'Kon noted that Laude had not filed any evidentiary materials to counter O'Kon's evidence. Based on this state of the record, O'Kon asked the trial court to grant summary judgment in his favor. The court declined.


author: DEININGER, PJ.

text:
    James Allen, Plaintiff-Respondent, v. Juan Guerrero, Jodi Voegeli, Jodi Tessman, Stephanie Hove, Donna Mueller and one or more John Does, in their individual capacities, Defendants-Appellants.
    Court of Appeals

      No. 03-1356.

      Submitted on briefs February 11, 2004.

    Decided September 16, 2004.

    2004 WI App 188
    (Also reported in 688 N.W.2d 673.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of John J. Glinski, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeff Scott Olson, of The Jeff Scott Olson Law Firm, S.C., Madison.
    Before Deininger, PJ., Dykman and Vergeront, JJ.
   DEININGER, PJ.

¶ 1. Several Department of Corrections (DOC) employees appeal an order denying their motion to dismiss this action, which James Allen filed against them under 42 U.S.C. § 1983. The defendants contend they are entitled to qualified immunity from Allen's claim that they violated the Eighth Amendment's prohibition against cruel and unusual punishment by deliberately refusing to release him on parole for 377 days beyond his mandatory release (MR) date. The defendants maintain that, because federal courts were divided on whether the alleged conduct constituted a violation of the Eighth or the Fourteenth Amendments, the trial court erred by concluding that it was "clearly established" at the time Allen reached his MR date that retaining him in prison violated the U.S. Constitution.

¶ 2. We conclude that a 42 U.S.C. § 1983 defendant is not entitled to qualified immunity when, even if there was some uncertainty in the law regarding precisely which constitutional provision was violated, the law nonetheless clearly established that the defendants' alleged conduct violated the U.S. Constitution. We also conclude that, at the time Allen reached his MR date, the law clearly established that deliberately holding a person in prison beyond a statutorily prescribed release date violates a right guaranteed by the U.S. Constitution. Accordingly, we affirm the appealed order permitting Allen's Eighth Amendment claim to proceed.

BACKGROUND

¶ 3. The following facts are taken from the allegations set forth in Allen's amended complaint, which, for purposes of a motion for judgment on the pleadings, we must accept as true. Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 468, 565 N.W.2d 521 (1997).

¶ 4. After serving two-thirds of an eight-year sentence for sexual assault, Allen reached his MR date on January 4, 2000. The DOC was unable to secure appropriate housing for Allen and, instead of releasing him on parole, the department moved him to a minimum security prison and placed him under the supervision of parole agents. In April 2000, Allen's parole agents initiated a "parole hold pending a parole revocation hearing," placed him under arrest, and transferred him to a maximum security prison. In September of that same year, an administrative law judge concluded that Allen had not been released to parole, was not a parolee, and therefore could not be found to have violated his parole. This ruling was upheld on administrative appeal.

¶ 5. Allen nonetheless remained in custody. At the end of October, the DOC again sought to revoke Allen's parole. An administrative law judge again held that a parole revocation was inappropriate because Allen was never released from prison to parole. Allen, still in custody, then petitioned the Dane County Circuit Court for a writ of habeas corpus. The court granted the writ and ordered Allen released to parole, which occurred on January 17, 2001, some 377 days after he had reached his MR date.

¶ 6. Allen commenced this 42 U.S.C. § 1983 action against several DOC parole agents, alleging that his incarceration beyond his MR date violated the Fourth, Eighth, and Fourteenth Amendments. The defendants moved for judgment on the pleadings, asserting that Allen had not stated a Fourteenth Amendment claim and that they were entitled to qualified immunity on the Fourth and Eighth Amendment claims. The trial court dismissed Allen's Fourth and Fourteenth Amendment claims but determined that the DOC officials were not entitled to qualified immunity with regard to Allen's Eighth Amendment claim. The court concluded that Allen's alleged incarceration beyond his MR date violated the Eighth Amendment prohibition against cruel and unusual punishment and that the law was sufficiently clear at the time Allen reached his MR date for the defendants to have known that their conduct was unlawful.

¶ 7. We granted the defendants' petition under Wis. Stat. Rule 809.50 for leave to appeal the trial court's nonfinal order. See Arneson v. Jezwinski, 206 Wis. 2d 217, 220, 556 N.W.2d 721 (1996) (Arneson I) (holding that the court of appeals should grant "as a matter of course" petitions for leave to appeal orders that, on the basis of an issue of law, deny defendants qualified immunity from suit under 42 U.S.C. § 1983).

ANALYSIS

¶ 8. To recover under 42 U.S.C. § 1983, Allen must establish that: (1) the named defendants deprived him of a federally secured right, and (2) at the time they did so, the defendants were acting under the "color of state law." See Parratt v. Taylor, 451 U.S. 527, 535 (1981). The defendant parole agents do not dispute that Allen's amended complaint states a claim for an Eighth Amendment violation, and neither do they dispute that they acted under the color of state law in denying him release from incarceration. The defendants contend, however, that the doctrine of qualified immunity shields them from this lawsuit. Whether the trial court correctly applied the doctrine of qualified immunity in denying the defendants' motion for judgment on the pleadings is a question of law that we decide de novo. Arneson v. Jezwinski, 225 Wis. 2d 371, 384, 592 N.W.2d 606 (1999) (Arneson II).

¶ 9. The doctrine of qualified immunity shields defendants who qualify for it not only from liability for their actions, but also from the burdens associated with defending a § 1983 action. Put another way, "qualified immunity is immunity from suit." Arneson I, 206 Wis. 2d at 226 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The doctrine "protects government officials performing discretionary functions from civil liability so long as their conduct does not violate a person's clearly established statutory or constitutional right of which a reasonable person would have known." Arneson II, 225 Wis. 2d at 385. Although qualified immunity is an affirmative defense, in order to defeat it, a § 1983 plaintiff must not only allege a "cognizable violation of constitutional rights," hut the plaintiff must also meet the burden of showing that the defendants have violated a "clearly established constitutional right." Id. at 390-91.

¶ 10. The defendant parole agents directly challenge only the latter issue — whether it was "clearly established" in 2000 that incarcerating Allen for 377 days beyond his MR date violated his Eighth Amendment right to be free from cruel and unusual punishment. However, "[t]o ensure that legal doctrine may continue to evolve, the [U.S.] Supreme Court has said that courts should consider the two aspects of the immunity inquiry in sequential order, looking first at the question whether the defendants violated the plaintiffs rights, and second at whether a given right was clearly established." Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). Thus, we will first inquire whether an Eighth Amendment violation arises on the facts Allen alleges, and, if we conclude that it does, we will then examine whether Allen's constitutional right not to be incarcerated beyond his mandatory release date was clearly established when he reached his MR date in 2000.

¶ 11. No Wisconsin state court has addressed whether deliberately incarcerating a person beyond his or her MR date violates the Eighth Amendment's prohibition against cruel and unusual punishment. Recent decisions of the U.S. District Court for the Eastern District of Wisconsin and the Seventh Circuit Court of Appeals, however, have concluded that facts such as those before us constitute an Eighth Amendment violation. We find these decisions persuasive.

¶ 12. The Eastern District concluded unequivocally in Russell v. Lazar, 300 F. Supp. 2d 716 (E.D. Wis. 2004), that "[incarcerating a prisoner beyond the termination of his sentence without penological justification violates the Eighth Amendment prohibition of cruel and unusual punishment when it is the product of deliberate indifference." Id. at 720. The district court drew principal support for this conclusion from Campbell, a Seventh Circuit case, as well as from decisions of the Third and Ninth Circuit Courts of Appeal. See, e.g., Campbell, 256 F.3d at 700 (concluding that, "if through deliberate indifference to the requirements of state law the correctional officials kept [plaintifí] imprisoned too long, his Eighth Amendment rights were violated even if the additional time was not very long").

¶ 13. We note, as did the Eastern District in Russell, that some federal courts have distinguished "conditions" of confinement from the "fact" of confinement and concluded that "extended incarceration" cases challenge the latter and should be analyzed under the Fourteenth Amendment as potential violations of due process. See, e.g., Jones v. City of Jackson, 203 F.3d 875, 880-81 (5th Cir. 2000). As we have noted, however, we find Campbell and Russell persuasive and we adopt the analysis applied by the federal courts in Wisconsin, where inmates may bring Eighth Amendment claims on facts such as Allen alleges here.

¶ 14. In order to prevail on an Eighth Amendment claim premised on incarceration beyond a legally mandated release date, "a plaintiff must establish three elements":

First, he must show that a prison official knew of his problem and thus of the risk that he was being or would be subjected to unwarranted punishment. Second, the plaintiff must show either that the official failed to act or took action that was ineffectual under the circumstances, thereby indicating that he was deliberately indifferent to the plaintiffs plight. Finally, the plaintiff must show a causal connection between the officials conduct and the unjustified detention.

Russell, 300 F. Supp. 2d at 720 (citing Moore v. Tartler, 986 F.2d 682, 686 (3rd Cir. 1993)). Allen's amended complaint sufficiently pleads these elements. He alleged facts from which it is reasonable to infer that the defendants knew that he had reached his mandatory release date, and that he was statutorily entitled to be released on parole.

¶ 15. Allen alleges that, upon reaching his MR date, he was not released to parole but, instead, was moved to a minimum security prison where the defendant DOC officials twice unsuccessfully attempted to revoke his (nonexistent) "parole." Both times, Allen asserts, an administrative law judge ruled that parole revocation was inappropriate because Allen had never been released from prison to parole and, therefore, was still a prisoner. By alleging that the defendants commenced a second parole revocation hearing instead of releasing him on parole, Allen has sufficiently alleged that the defendants failed to act, or took action that was ineffectual under the circumstances, "thereby indicating that [they were] deliberately indifferent to [his] plight." Id.

¶ 16. We also conclude that Allen has asserted a causal connection between the defendants' actions, or lack thereof, and his unjustified detention. The defendant parole agents refused to release Allen to parole, despite two administrative appeal decisions rejecting their attempts to justify reincarcerating him. He alleges that the defendants did not release him from incarceration until ordered to do so by the circuit court in the habeas corpus proceeding.

¶ 17. Thus, Allen has stated a claim for relief under the Eighth Amendment, and we now address whether it was "clearly established" in 2000 that deliberately incarcerating a person beyond his or her MR date violates the U.S. Constitution. A constitutional right is "clearly established" when it would be clear to a reasonable public official that his or her conduct was unlawful in the context of the situation confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001). Allen bears the burden of demonstrating that the constitutional violation he alleges was clearly established at the time of the defendants' acts or omissions he complains about. See Penterman, 211 Wis. 2d at 469. Accordingly, even though we have concluded that Allen has sufficiently alleged an Eighth Amendment violation in this litigation, our present inquiry requires us to examine the law as it stood in 2000 to determine whether the alleged facts clearly established the unlawfulness of the defendants' conduct at that time.

¶ 18. The Supreme Court has explained that it is not necessary, in order to defeat a claim of qualified immunity, to show that "the very action in question has previously been held unlawful; but that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). To be "clearly established," therefore, the law need not "specifically correspond with every facet of the present situation. Rather, the 'clearly established law' must be sufficiently analogous to provide the public official with guidance as to the lawfulness of his or her conduct." Barnhill v. Board of Regents of the UW Sys., 166 Wis. 2d 395, 408, 479 N.W.2d 917 (1992). Thus, our task is to determine whether a reasonable public official could have believed, albeit mistakenly, that it was lawful to continue to incarcerate Allen, instead of releasing him on parole after he reached his MR date. See id. at 408-09. We conclude that a reasonable DOC official could not have so believed in January through December of 2000.

¶ 19. We note first that the defendants do not dispute Allen's contention that no reasonable Wisconsin corrections official could have believed in 2000 that state law authorized them to incarcerate Allen beyond his MR date. See State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 591 N.W.2d 922 (Ct. App. 1999); State ex rel. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425. Rather, the defendants' only response to this point is that a violation of state law, without more, does not "abrogate an official's qualified immunity from suit for violation of federal constitutional rights." Kompare v. Stein, 801 F.2d 883, 888 n.6 (7th Cir. 1986).

¶ 20. The defendants' response, however, misses the point. State law establishes the date Allen was entitled to be released from his incarceration, and it is the defendants' deliberate incarceration of Allen after that date that he claims violated his federal constitutional rights. If a reasonable correctional official could have believed in 2000, although mistakenly, that state law authorized Allen to be incarcerated beyond his MR date, then Allen has failed to establish a constitutional violation because the defendants did not act with "deliberate indifference" in failing to release him to parole, only by mistake in not doing so. See Campbell, 256 F.3d at 700-02. As noted, however, the defendants do not argue that, in 2000, state law was unclear whether Allen was entitled to release on parole upon reaching his MR date. We agree with Allen that Woods and Olson clearly established that he was. See Olson, 233 Wis. 2d 685, ¶¶ 1, 5 (holding that "the DOC has no authority to hold an inmate in custody beyond his or her mandatory release date," and noting that "there is no gray area in the statute — it is crystal clear"). As the Seventh Circuit has observed, " '[i]n many cases the same conduct will violate both state law and the federal Constitution.'" Kompare, 801 F.2d at 888 (citations omitted).

¶ 21. The defendants' claim for qualified immunity is grounded on their assertion that, in 2000, existing law did not clearly establish that incarceration of an individual for a significant period of time beyond a legally mandated release date violates the Eighth Amendment. They point out that, at the time of the alleged violation, no Wisconsin case had so held and federal courts were split on whether incarceration beyond a legally mandated release date violated the Eighth Amendment or the Fourteenth Amendment. The defendants identify Moore v. Tartler, 986 F.2d 682 (3rd Cir. 1993), Sample v. Diecks, 885 F.2d 1099 (3rd Cir. 1989), and Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985), as all concluding that officials who are "deliberately indifferent" to a prisoner's incarceration beyond his or her release date violate the prisoner's Eighth Amendment rights. They also cite, however, the following federal cases as evidence that several federal circuits had concluded in or before the year 2000 that such "refusals to release" instead transgress the Fourteenth Amendment's due process guarantee: Jones v. City of Jackson, 203 F.3d 875 (5th Cir. 2000), Ricker v. Leapley, 25 F.3d 1406 (8th Cir. 1994), Hall v. Lombardi, 996 F.2d 954 (8th Cir. 1993), and Slone v. Herman, 983 F.2d 107, 110 (8th Cir. 1993).

¶ 22. In other words, the defendants essentially argue that Allen's constitutional right to not be incarcerated beyond his MR date was unclear because some federal precedents addressed the plight of unreleased prisoners in due process terms, while others did so under an Eighth Amendment analysis. The defendants assert, and we acknowledge, that disparate holdings among U.S. Circuit Courts of Appeal may well be "indicative of the fact that.. . rights in this regard are currently unsettled as a matter of constitutional law and therefore were not 'clearly established.'" Upton v. Thompson, 930 F.2d 1209, 1217 (7th Cir. 1991). The split among U.S. Circuits relied on by the defendants in this case, however, was not over whether deliberately extending incarceration beyond a date legally mandated for release violates the U.S. Constitution, but over which of two constitutional protections the alleged conduct violates.

¶ 23. We conclude that the unlawfulness of the defendants' actions was clearly established in 2000 despite the lack of unanimity among federal courts as to precisely which constitutional provision rendered their conduct unlawful. That is, although, as a federal district court has noted, there was "some confusion as to whether the constitutional right [not to be imprisoned beyond a mandated release date] is founded in due process or the Eighth Amendment," the "threshold for liability ... is the same." McCurry v. Moore, 242 F. Supp. 2d 1167, 1178-79 (N.D. Fla. 2002). The proper question is "not whether the defendants could have cited the exact article, section, and clause of the Constitution that they were offending. It is instead the more practical question of whether they would have understood that what they were doing violated the plaintiffs' rights." Markham v. White, 172 F.3d 486, 492 (7th Cir. 1999); see also McCurry, 242 F. Supp. 2d at 1182 ("[T]he question to ask is whether prison officials have been given fair warning that their actions or omissions are unconstitutional.").

¶ 24. Therefore, although we agree that a reasonable public official could have believed in 2000 that deliberately incarcerating Allen beyond his MR date violated his rights under the Fourteenth Amendment instead of under the Eighth Amendment, we conclude that no reasonable public official could have believed that such continued detention was constitutionally permissible. The doctrine of qualified immunity protects against the unfairness of subjecting public officials to money damages "for picking the losing side of the controversy" when the existence of a constitutional right has not been clearly established. Wilson v. Layne, 526 U.S. 603, 618 (1999). Here, however, any controversy over the specific source of the constitutional right not to be incarcerated beyond one's mandatory release date cannot be said to have created any doubt regarding the existence of such a right.

¶ 25. Finally, we note that, although the argument is not well developed, the defendants also appear to suggest that, prior to Campbell, 256 F.3d 695, the Seventh Circuit had affirmatively concluded that a prisoner had no federal constitutional right to be released on his or her MR date. The suggestion is premised on the Seventh Circuit's conclusion in one case that a prisoner "has no substantive due process right to an early release from prison," Toney-El v. Franzen, 777 F.2d 1224, 1227 (7th Cir. 1985), and in another that "the Eighth Amendment's prohibition against cruel and unusual punishment and any substantive rights ... under the Due Process Clause are coextensive," Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988) (citation omitted). We reject the conclusion the defendants apparently wish us to draw from the cited passages.

¶ 26. The plaintiffs incarceration in Toney-El was wrongly extended because of a mistake in computing his mandatory release date, not because corrections officials deliberately refused to release him on a date they knew he was entitled under state law to be released. The Seventh Circuit emphasized in Toney-El that the plaintiff "clearly had a constitutionally protected liberty interest in being released from prison before the end of his term for good behavior," Toney-El, 111 F.2d at 1226, but it concluded that Illinois corrections officials had provided a "method of reviewing challenges to the calculation of custody or release dates [that] satisfies the dictates of procedural due process." Id. at 1229.

¶ 27. The observation in Toney-El that a prisoner has no substantive due process right to an early release from prison means only that states are not constitutionally obligated to provide for early release. If a state so provides, however, it was clearly established in 2000 that corrections officials are constitutionally obligated (1) to provide adequate procedures for determining and reviewing the correctness of a prisoner's release date, and (2) to not deliberately incarcerate the prisoner beyond the date mandated under state law for the prisoner's release. Toney-El addressed only the first obligation; it did not disavow the second.

CONCLUSION

¶ 28. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       Pursuant to Wis. Stat. § 302.11 (2001-02), "an inmate who is serving a sentence for a serious felony committed on or after April 21, 1994, but before December 31, 1999" is entitled to a mandatory release on parole after serving two-thirds of his or her sentence. Section 302.11(1), (lg)(am). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       We discuss below whether the fact that some federal courts would find a Fourteenth Amendment violation instead of an Eighth Amendment violation on the present facts prevented Allen's rights from being "clearly established" in 2000 when he reached his MR date.

       Because this litigation has not advanced beyond the pleadings, there are no additional facts in the record that might permit competing inferences.


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Edward Leon Jackson, Defendant-Appellant.

    Court of Appeals

      No. 03-2066.

      Submitted on briefs March 18, 2004.

    Decided September 16, 2004.

    2004 WI App 190
    (Also reported in 688 N.W.2d 688.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Meredith J. Ross and Joshua B. Orenstein of the Frank J. Remington Center, University of Wisconsin Law School, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Lundsten and Higginbotham, JJ.

       Petition to review denied 11-18-2004.

   DYKMAN, J.

¶ 1. Edward Jackson appeals from an order denying his collateral challenge under Wis. Stat. § 974.06 (2001-2002) for postconviction relief. Jackson was convicted of two counts of conspiracy (conspiracy to commit arson and conspiracy to commit intentional homicide) under Wis. Stat. § 939.31 and one count of possession of a fire bomb. Jackson contends that it is multiplicitous to charge him with two counts of conspiracy under the same statute. Because Jackson did not bring this challenge in the trial court, he has waived it. However, we exercise our discretion to address the merits of the challenge. Because § 939.31 requires separate counts for different acts of conspiracy, we affirm Jackson's convictions.

Background

¶ 2. In 1996, Jackson admitted to his role in a plan to fire bomb a Milwaukee police officer's home. Jackson and two other men conspired to fire bomb the house, enabling two others to shoot people fleeing from the building. A jury found Jackson guilty, in 1997, of two counts of conspiracy and one count of possession of a firebomb. Though Jackson was part of one conspiracy, he conspired to participate in two acts, arson and intentional homicide, and was charged with two counts of conspiracy under Wis. Stat. § 939.31.

¶ 3. In 2003, the circuit court denied Jackson's Wis. Stat. § 974.06 motion for postconviction relief, which alleged that his convictions and sentences on two counts of conspiracy violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. The circuit court denied the motion, concluding, "[tjhere is nothing multiplicitous about charging separate conspiracies to commit separate offenses which would have been charged as separate crimes had they been completed." Jackson asks us to reverse the decision of the circuit court and to vacate his conviction for conspiracy to commit arson.

Discussion

¶ 4. The State, relying on State v. Kohler, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, argues that because Jackson did not raise a multiplicity challenge at trial, he has waived it. We agree. However, waiver is a rule of judicial administration, and we have discretion to consider a waived issue. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). Here, we exercise our discretion to address the substance of Jackson's multiplicity challenge because it raises an ongoing legal issue that merits our attention.

¶ 5. Whether a criminal defendant has a double jeopardy claim is a question of law that we review de novo. Kohler, 248 Wis. 2d 259, ¶ 32. This case also requires us to interpret Wisconsin's criminal conspiracy statute, Wis. Stat. § 939.31. Statutory interpretation also presents a question of law. Donaldson v. Bd. of Comm'rs of Rock-Koshkonong Lake Dist., 2004 WI 67, ¶ 19, 272 Wis. 2d 146, 680 N.W.2d 762.

¶ 6. Jackson, citing Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99 (1942), contends that a conspiracy statute punishes the criminal agreement or combination with another to commit a crime, not the criminal goals of the agreement. In Braverman, the Supreme Court ruled that the prosecution of a single agreement to commit multiple crimes as multiple, separate conspiracies violates a defendant's constitutional right to avoid double jeopardy. Id. at 55. Jackson asserts that here, as in Braverman, there was only one agreement. Since the only crime committed in this case was the agreement itself, Jackson argues that under Braver-man, he can be punished with only one conspiracy conviction. We disagree. Braverman is inapplicable here because the underlying conspiracy statute differs from the federal conspiracy statute. Unlike the federal conspiracy statute, Wis. Stat. § 939.31 permits the charging of multiple offenses.

¶ 7. The double jeopardy clause of the state and federal constitutions prevents the sentencing court from imposing greater punishment than that intended by the legislature. State v. Davison, 2003 WI 89, ¶ 28, 263 Wis. 2d 145, 666 N.W.2d 1. When the legislature intends to allow cumulative punishments for the same offenses, there is no double jeopardy violation. Id. at ¶ 37. Multiplicity may be found only in "situations in which the legislature has not authorized multiple charges and cumulative punishments." Id. If the charged crimes are different in law or in fact, it is presumed that the legislature intended to permit multiple punishments. Id. at ¶¶ 43-44. This can only be rebutted by clear evidence to the contrary. Id.

¶ 8. Wisconsin Stat. § 939.31 provides, in pertinent part:

[W]hoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.

There are three elements to § 939.31, as set forth in Wis JI — Criminal 570 (2001):

(1)The defendant intended that the crime of (name of felony) be committed;
(2) the defendant was a member of a conspiracy to commit the crime of (name of felony);
(3) one or more of the conspirators performed an act toward the commission of an intended crime that went beyond mere planning and agreement.

These elements incorporate each criminal offense that is the criminal object of the conspiracy. This means that when a conspiracy has as its object the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. Thus, § 939.31 expresses the Wisconsin Legislature's intent to permit multiple punishments.

¶ 9. Jackson conspired to commit two crimes, arson and murder. Accordingly, under Wis. Stat. § 939.31, he may be charged with two counts of conspiracy, one incorporating the crime of arson, another incorporating murder. Each charge requires proof of facts that the other does not; they are different in fact and in law. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Even though both offenses may have arisen from the same agreement, "[i]t is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause." Albernaz v. United States, 450 U.S. 333, 344 n.3, 101 S. Ct. 1137 (1981).

¶ 10. Braverman does not help Jackson. In Braverman, the court interpreted 18 U.S.C. § 371, a federal conspiracy statute that, unlike Wis. Stat. § 939.31, does not incorporate the crime or crimes that are the object of the conspiracy. Instead, the federal statute prohibits a conspiracy to commit "any offense." The federal statute also provides a set penalty of "no more than five years," regardless of the intended crime or crimes. By contrast, the penalty for conspiracy under § 939.31 is tied to the underlying crime (except when the penalty is life imprisonment). Wis. Stat. § 939.31. Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673 (1983), citing Albernaz, states the applicable rule in Jackson's case: "Where [the Legislature] intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." Hunter, 459 U.S. at 368 (quoting Albernaz, 450 U.S. at 344).

¶ 11. We conclude that the clear language of Wis. Stat. § 939.31 indicates legislative intent to permit multiple punishments when conspirators agree to commit multiple crimes. We agree with the trial court that the charges against Jackson were not multiplicitous. We therefore affirm.

By the Court. — Order affirmed.

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

       Jackson avers that during his trial a Milwaukee police detective testified that Jackson signed a statement saying that Jackson was not aware that the house targeted in the conspiracy belonged to a police officer until immediately prior to his arrest.

       18 U.S.C. § 371 (2002) reads:

        If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
      The pertinent language of § 371 has remained unchanged since the statute was interpreted in Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99 (1942).