author: ANDERSON, P.J. BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard L. Bowers, Defendant-Appellant.

    Court of Appeals

      No. 04-1093-CR.

      Submitted on briefs February 3, 2005.

      Decided March 9, 2005.

    2005 WI App 72
    (Also reported in 696 N.W.2d 255.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of George M. Tauscheck, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shunette T. Campbell, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 6-1-2005.

   ANDERSON, P.J.

¶ 1. Richard L. Bowers appeals from a judgment of conviction for operating while intoxicated (5th+) (OWI) contrary to Wis. Stat. § 346.63(1)(a) (2003-04) and an order denying his postconviction motion for resentencing. In the context of an ineffective assistance of counsel claim, he contends that the State breached the plea agreement at the sentencing hearing by both misstating the amount of time to be served on initial confinement and recommending that his sentence run consecutively. We conclude that because the misstatement was insubstantial, inadvertent and promptly recognized and rectified, it does not constitute an actionable breach of the plea agreement. We also hold that because the plea agreement is silent on the issue of consecutive or concurrent sentences and the record does not reflect that Bowers otherwise bargained for the State's promise not to recommend consecutive sentences, the State's recommendation of consecutive sentences did not constitute a breach of the plea agreement. We affirm.

BACKGROUND

¶ 2. On December 27, 2002, the State filed a complaint against Bowers alleging operating a motor vehicle with a prohibited alcohol concentration and operating while intoxicated (5th+). Pursuant to a plea agreement, Bowers pled no contest to the operating a motor vehicle while intoxicated charge and the other counts subject to the agreement were dismissed. The "Plea Questionnaire/Waiver of Rights" form was signed by Bowers and stated:

No promises have been made to me other than those contained in the plea agreement. The plea agreement will be stated in court or is as follows:
Plea [no contest] to OWI 6th. BAC & OAR Dismissed. State to recommend 2 yrs initial confinement; 3 yrs extended supervision. A free to argue. Sentencing adjourned.

The parties recited the plea agreement to the court at the plea hearing held on May 19, 2003. As both parties acknowledge, there was no mention either in court or on the plea questionnaire as to whether the recommended sentence would run concurrent or consecutive to any other sentence.

¶ 3. The sentencing hearing was held on July 30. The State began its sentencing argument by incorrectly recommending two and one-half years of initial confinement to be followed by two and one-half years of extended supervision. The State also recommended that the sentence run consecutive to the sentence that Bowers had begun serving in another case. After the State completed its sentencing recommendations, defense counsel, at Bowers urging, asked to look at the plea questionnaire form in the court file. Bowers had indicated to his counsel that the State may have misstated the terms of the plea agreement. Upon hearing this, the State immediately amended its recommendation to "two years in and three years out." After hearing the parties' recommendations, the court determined that Bowers should receive three years' initial incarceration and two years' extended supervision. The court specifically quoted the correct sentence recommendation from the State:

In all honesty, I think there's a very good argument here for the maximum which would be the 45 months confinement. I'm taking into consideration the State's recommendation for two years and the Presentence recommendation for two and a half. I'm not going to give the full 45 months, but I'm going to give 36.
I think anything less than three years would unduly depreciate the seriousness of what occurred here with regard to a sixth offense, would not take into consideration Mr. Bowers' rehabilitative needs, which are significant, and would certainly not adequately address protecting the public.

¶ 4. Bowers filed a motion for resentencing. He argued that when the State incorrectly recommended two and one-half years' imprisonment and two and one-half years' extended supervision, it materially and substantially breached the plea agreement and his counsel's failure to object to the breach constituted ineffective assistance of counsel. At the postconviction motion hearing, the court determined that the State's misstatement was not a material and substantial breach of the plea agreement. For the first time, Bowers also argued that the State breached the plea agreement by recommending a consecutive sentence. The court rejected Bowers' argument, concluding that if a plea agreement does not address the issue of consecutive and concurrent sentencing, then the prosecutor is free to make a recommendation either way. The court issued an order denying his postconviction motion. Bowers now appeals from the judgment of conviction and the order denying his postconviction motion. He seeks resentencing before a different judge.

STANDARD OF REVIEW

¶ 5. The question of whether the State's conduct breached the terms of the plea agreement is a question of law that we review de novo. State v. Howard, 2001 WI App 137, ¶ 15, 246 Wis. 2d 475, 630 N.W.2d 244, review denied, 2003 WI 126, 265 Wis. 2d 418, 668 N.W.2d 558 (No. 02-1677-CR). Additionally, a trial court's ineffective assistance of counsel analysis involves mixed questions of law and fact. Id., ¶ 23. The trial court's factual findings will not be reversed unless they are clearly erroneous; however, issues bearing on whether trial counsel's conduct was deficient and prejudicial are questions of law that this court reviews de novo. Id., ¶ 23.

DISCUSSION

¶ 6. When Bowers failed to object to the State's alleged breaches at the sentencing hearing, he waived his right to directly challenge the alleged breaches of the plea agreement. See id., ¶ 12. Therefore, this case comes to us in the context of an ineffective assistance of counsel claim. Following a brief recitation of the fundamental principles of plea agreements, we will consider whether the State materially and substantially breached the plea agreement when it misstated the length of incarceration and when it recommended consecutive sentences. If there were material and substantial breaches, the next issues are whether Bower's counsel provided ineffective assistance and which remedy is appropriate. See id.

Fundamental Principles of Plea Agreements

¶ 7. A criminal defendant has a constitutional right to the enforcement of a negotiated plea agreement. State v. Smith, 207 Wis. 2d 258, 271, 558 N.W.2d 379 (1997). Due process concerns arise in the process of enforcing a plea agreement. Id. "Although a defendant has no right to call upon the prosecution to perform while the agreement is wholly executory, once the defendant has given up his [or her] bargaining chip by pleading guilty, due process requires that the defendant's expectations be fulfilled." Id.; see also Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.").

¶ 8. When examining a defendant's allegation that the State breached a plea agreement, such as by making a different recommendation at sentencing, it is irrelevant whether the trial court was influenced by the State's alleged breach or chose to ignore the State's recommendation. See United States v. Clark, 55 F.3d 9, 13 (1st Cir. 1995) (A prosecutorial failure to fulfill a promise is not rendered harmless because of judicial refusal to follow the recommendation or judicial awareness of the impropriety.). Thus, the focus of the trial court's analysis for postconviction motions, and for this court on appeal, is whether the State breached the agreement and, if so, whether the breach was material and substantial, rather than whether the trial court was influenced by the breach. Howard, 246 Wis. 2d 475, ¶ 14.

¶ 9. Not all breaches of a plea agreement require a remedy. See State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986). A defendant is not entitled to relief when the breach is merely a technical one rather than a substantial and material breach of the agreement. See id. at 289-90. A material and substantial breach of a plea agreement is one that violates the terms of the agreement and deprives the defendant of a material and substantial benefit for which he or she bargained. State v. Deilke, 2004 WI 104, ¶ 14, 274 Wis. 2d 595, 682 N.W.2d 945. However, even an oblique variance will entitle the defendant to a remedy if it "taints" the sentencing hearing by implying to the court that the defendant deserves more punishment than was bargained for. State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997) (citing State v. Poole, 131 Wis. 2d 359, 394 N.W.2d 909 (Ct. App. 1986)). Because a plea agreement is analogous to a contract, we do draw upon contract principles in determining the rights of the parties to a plea agreement and whether there has been a breach that is material and substantial. Deilke, 274 Wis. 2d 595, ¶ 12.

State's Misstatement of the Terms of the Plea Agreement

¶ 10. Bowers contends that the State breached the plea agreement at sentencing when the prosecutor recommended two and one-half years' initial incarceration and two and one-half years' extended supervision instead of the agreed upon two years' initial incarceration and three years' extended supervision. He maintains that "[t]he State's simple recitation of the correct recommendation, without more, after the defense had already begun its sentencing argument qualifies as too little, too late." We agree with the State that the first of its perceived breaches in this case was not material and substantial.

¶ 11. This case is akin to Knox, where we held that an "inadvertent and insubstantial" misstatement of the plea agreement, which was promptly rectified, did not constitute a breach. Knox, 213 Wis. 2d at 320. The misstatement in Knox was the prosecutor's request for consecutive, rather than concurrent, sentences. Id. at 320-21. The plea agreement had required the prosecutor to recommend concurrent sentences. Id. at 320. Immediately realizing the error, the prosecutor advised the court of the mistake regarding the agreement and recommended the bargained-for concurrent sentence. Id. at 320-21. The court rejected the recommendation and imposed consecutive prison terms. Id. at 321. On appeal, the State conceded that the misstated recommendation was material, but denied it was substantial. Id. at 321 n.2; but see Deilke, 274 Wis. 2d 595, ¶ 12 n.8 (" 'Material and substantial,' though it appears to have two parts, is actually a single concept."). We agreed, recognizing that the perceived breach was "not intended to affect the substance of the agreement by sending a veiled message to the sentencing court that greater punishment than provided for in the plea agreement was warranted." Knox, 213 Wis. 2d at 322. "Rather," we said:

the deviation from the original terms drew a prompt objection and was shown to be the result of a mistake that was quickly acknowledged and rectified. Indeed, the prosecutor's earnest manner in advocating the corrected proposed disposition, commented upon by the trial court, further circumstantially belies an implication of improper motive. For these reasons, the momentary and inadvertent misstatement of the parties' agreement did not constitute an actionable breach.

Id. at 322-23.

¶ 12. We reach the same conclusion here. While the State did not correct itself with tremendous enthusiasm and zeal and while the trial court did not reflect upon the State's "earnest" advocacy of the proper sentence, such is not required for us to find a perceived breach immaterial and insubstantial. There is no requirement that the state correct a misstated sentence recommendation forcefully or enthusiastically. Knox teaches us that it is sufficient for the State to promptly acknowledge the mistake of fact and to rectify the error without impairing the integrity of the sentencing process. See id.; see also State v. Williams, 2002 WI 1, ¶ 51 n.47, 249 Wis. 2d 492, 637 N.W.2d 733 ("In Knox, the breach was not actionable because the prosecutor misstated a term of the plea agreement but promptly acknowledged the mistake of fact and rectified the error without impairing the integrity of the sentencing process.").

¶ 13. In the present case, when the mistake was brought to its attention, the State promptly and matter-of-factly corrected its recommendation to the' agreed upon bifurcated sentence and, in its sentencing remarks, the trial court recognized that the State was recommending "two years" of initial incarceration as part of the plea agreement. The perceived breach was not an attempt to qualify or undercut the substance of the plea agreement; rather, it was simply an inadvertent misstatement that was acknowledged and rectified shortly thereafter. We therefore hold that the State did not materially and substantially breach the plea agreement when it misspoke as to the length of initial incarceration. There being no material and substantial breach of the agreement, counsel could not be said to have performed deficiently.

State's Recommendation of Consecutive Sentences

¶ 14. Bowers maintains that because the plea agreement was silent on the question of whether his sentence should run concurrently or consecutively, the State breached the plea agreement by recommending a consecutive sentence. He argues that the State's "recommendation of a consecutive sentence is akin to adding a material term to the agreement in the absence of negotiations between the parties. The length of time to be served, which is affected by whether the sentence runs concurrent or consecutive, is perhaps the most material issue in a plea agreement." According to Bowers, the parties knew at the time of the plea agreement that Bowers would be serving a sentence in a separate revocation case. The State responds simply that because the plea agreement contained no provision requiring it to either remain silent on the issue or recommend concurrent sentences, it was free to recommend consecutive sentences. We agree with the State.

¶ 15. As explained, a material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the nonbreaching party. Deilke, 274 Wis. 2d 595, ¶ 14. The plea agreement in this case required the State to recommend two years' initial confinement and three years' extended supervision and to dismiss the "BAC & OAR" charges in exchange for Bowers' guilty plea. The State honored its commitments — after briefly misstating the terms of the agreement, it recommended that the court sentence Bowers to "two years in and three years out" and dismiss the other charges against Bowers. The State made no other guarantees about its conduct in the plea document, as Bowers himself acknowledged when he agreed to the instrument's clause that states, "[n]o promises have been made to me other than those contained in the plea agreement." Thus, when the State recommended consecutive sentences, it did not violate the express terms of the agreement and Bowers was not denied his due process right to have the full benefit of the plea bargain upon which he relied.

¶ 16. We recognize that the issue of concurrent and consecutive sentences is "extremely important" to a guilty plea. See Howard, 246 Wis. 2d 475, ¶ 18. However, in the absence of any indication that the parties expected the State to either remain silent or recommend concurrent sentences, we are reluctant to engraft these conditions into a fully integrated plea agreement. The interpretation of plea agreements is rooted in contract law, see Deilke, 274 Wis. 2d 595, ¶ 12, and basic contract law dictates that we recognize the parties' limitation of their assent. Contract law demands that each party should receive the benefit of its bargain; no party is obligated to provide more than is specified in the agreement itself. See United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994); United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986) (citing Restatement (Second) of Contracts §§ 210, 216 (1981) for the proposition that "[a]s a fully integrated [plea] agreement, the described exchange may not be supplemented with unmentioned terms"). Accordingly, the State should be held only to those promises it actually made to the defendant. As the Fourth Circuit explained in Fentress, "While the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise is to strip the bargaining process itself of meaning and content." Fentress, 792 F.2d at 464-65.

¶ 17. We are unable to find any published Wisconsin cases directly addressing the question the parties present — that being, whether the State breaches a plea agreement when the plea agreement and parties' negotiations do not consider the issue of concurrent or consecutive sentences and the State proceeds to recommend consecutive sentences to the sentencing court. We do, however, find one case that lends some support to our position, State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997).

¶ 18. There, the defendant argued that the State's prosecution of a Wis. Stat. ch. 980 petition for civil commitment violated a plea agreement in an earlier criminal prosecution. Zanelli, 212 Wis. 2d at 367. Prior to his plea in the criminal matter, the State had agreed to certain limits to its sentencing arguments in exchange for the defendant's guilty pleas. Id. We rejected the defendant's analysis and held that the State did not breach its plea agreement by filing the ch. 980 petition. Id. at 367-68. We explained, in part, that the parties' plea agreement was silent regarding future ch. 980 proceedings; thus, the record did not reflect that the defendant had bargained for the State's promise to forego a future ch. 980 proceeding. See Zanelli, 212 Wis. 2d at 367-68. This analytical framework applies with equal force to this case. Here, the agreement was silent regarding the issue of concurrent and consecutive sentences; thus, the record does not reflect that Bowers bargained for the State's promise to refrain from asking for consecutive sentences. Therefore, when the State recommended consecutive sentences, it did not violate the plea agreement. See id. at 368.

¶ 19. We also note that when faced with similar fact patterns, courts in other jurisdictions have reached the same conclusion as we do here. See Fentress, 792 F.2d at 464-65 (holding that the prosecution did not breach a plea agreement by asking the court to order restitution and consecutive sentences, where the agreement did not mention either restitution or consecutive sentences and the government otherwise kept its promises on the proposed length of imprisonment); White v. United States, 308 F.3d 927, 929 (8th Cir. 2002) (concluding that the government did not breach a plea agreement by recommending that the defendant's new sentence should run consecutive to his probation revocation sentence because the plea agreement contained no provision for the sentences to be served concurrently); Doles v. State, 55 P.3d 29, 34 (Wyo. 2002) (determining that because there was no agreement that the sentence was to be concurrent, and the terms of the agreement did not establish that the prosecutor was required to refrain from asking for a consecutive sentence, it was permissible for the prosecutor to argue for a consecutive sentence). See also, United States v. Mooney, 654 F.2d 482, 485-86 (7th Cir. 1981) (holding that the government did not violate the terms of the plea agreement when it opposed a Rule 35 motion to reduce a sentence imposed in excess of that recommended where the plea agreement did not contain an explicit promise to refrain from opposing such a motion and there was no indication that the parties expected the government not to oppose a Rule 35 motion).

¶ 20. Given that the plea agreement contained no provision for the OWI sentence to be imposed so as to be served concurrently with the sentence in the revocation case, the State's recommendation on the matter during the sentencing hearing was not a breach of the agreement. Because the State did not breach the agreement, Bowers' counsel did not perform deficiently by failing to object to the State's recommendation.

CONCLUSION

¶ 21. In summary, we conclude that the State did not materially and substantially breach the plea agreement by recommending two and one-half years' initial incarceration and two and one-half years' extended supervision because it promptly acknowledged and rectified its misstatement. We further hold that because the plea agreement did not contemplate the State's recommendation as to whether the probation revocation sentence and the OWI sentence would run concurrent or consecutive to each other, the State did not breach the plea agreement by recommending consecutive sentences. There being no breach of the plea agreement, counsel could not have been ineffective. The sentence is affirmed.

By the Court. — Judgment and order affirmed.

BROWN, J.

¶ 22. (concurring in part, dissenting in part). This case in my view actually starts long before Richard Bowers was arrested for driving while intoxicated, as a sixth offense, on December 25, 2002. On October 1, 2001, Bowers had his sentence for OWI-fifth offense withheld, and he was placed on probation for five years with various conditions, including a year in jail. He blew his probation chance when he was picked up on Christmas morning in 2002. From that point on, he was in jail on a probation hold. We know from the record that Bowers' prior counsel was engaged in discussions with the State whereby some alternative to revocation could be had. Obviously, those discussions did not prove fruitful to Bowers because on May 5, 2003, his probation was revoked. So, it is very clear to me that by the May 19 change-of-plea hearing, Bowers knew that he faced prison time for OWI-5th as well as the distinct probability of prison time for the QWI-6th.

¶ 23. So what does the plea agreement say about consecutive versus concurrent sentences? Nothing. Not a word. From this, the majority uses a maxim of contract law to declare that while the State must be held to the promises it made, it will not be bound to those it did not make.

¶ 24. I come to a different conclusion. With the very real prospect of spending time in prison as a result of his probation revocation looming on the horizon, Bowers agreed to change his plea in return for a specific recommendation by the State on his most recent violation. The State would recommend two years of initial confinement with three years extended supervision, and the defense would be free to argue. That is all. It was, on its face, an unambiguous recommendation by the State.

¶ 25. So what did the State do here? In open court, it voiced a recommendation beyond what it had agreed to recommend. It voiced to the trial court a further recommendation that the sentence be served consecutively to the probation revocation. In my mind, the State went beyond what it had agreed to recommend. The State's real recommendation was that Bowers do two years in confinement after serving the two and one-half years ordered by the circuit court in the OWI-5th case. I am satisfied that this voicing of an additional recommendation was a breach of the plea agreement. I am also satisfied that Bowers' trial counsel was ineffective for failing to object.

¶ 26. Much is made in the majority opinion of our case law explaining how we draw upon contract law in resolving plea bargain issues. But a major tenet of contract law is that the mutuality of assent underlies an enforceable contract. In plea bargaining terms, there must be a promissory exchange and the promise of certain benefits, including the exact penal promises, in return for a defendant's promise to enter a guilty or no contest plea. If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game.

¶ 27. It is my opinion that Bowers was entitled to a clear understanding of exactly how the State's promise would affect him. If it were up to me, the State would not be able to recommend consecutive terms unless bargained for. While I would see nothing wrong with the State alerting the trial court that it should address whether the sentence is to be served consecutively or concurrently with another sentence, I see everything wrong with allowing the State to recommend consecutive terms without having bargained for it.

¶ 28. I would reverse the sentence and remand for a new sentencing where the State would be held to the terms of its bargain.

¶ 29. I dissent in part. I concur with the majority's answer to the other argument raised by Bowers regarding the State's initial misstatement of the agreed upon bargain.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Bowers does not argue that he had negotiated with the State for a recommendation of concurrent sentences.

       This case must be distinguished from State v. Howard, 2001 WI App 137, ¶ 19, 246 Wis. 2d 475, 630 N.W.2d 244, review denied, 2003 WI 126, 265 Wis. 2d 418, 668 N.W.2d 558 (No. 02-1677-CR), in which we held that "where a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law." Both parties in that case agreed that the State violated the plea agreement when it made its recommendation. Id., ¶ 16. At issue was whether the violation was "technical" or "substantial and material." Id. Here, the issue, as we see it, is whether the State actually breaches a plea agreement when it makes no commitment in the plea agreement or during the negotiations process either to recommend concurrent sentences or to remain silent on the question.
      This case must also be distinguished from State v. Deilke, 2004 WI 104, ¶ 19, ¶ 19 n.17, 274 Wis. 2d 595, 682 N.W.2d 945, in which our supreme court wrote: "[I]n decisions that have reviewed the contention that a plea agreement has been breached, the conduct that was held to be a breach never was explicitly mentioned as an act a party to the agreement was constrained from taking." (citing for support in paragraphs 14, 19 and footnote 17 of the opinion, Howard, 246 Wis. 2d 475, ¶¶ 16-17; State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51; State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733; State v. Robinson, 2002 WI 9, ¶¶ 3, 6, 249 Wis. 2d 553, 638 N.W.2d 564). The court's statement cannot be read as broadly granting courts permission to read into a plea bargain any unarticulated and unnegotiated term. See Deilke, 274 Wis. 2d 595, ¶ 19 n.17. In Deilke and the cases it cited to support its proposition, the court was concerned about either the defendant undermining a benefit the State had bargained for by challenging one of the convictions underlying the agreed upon sentence or the State's violation of an undisputed term of the agreement. See id., ¶ 22 (holding that the defendant's collateral attack prevented the State from receiving all it bargained for when it dismissed multiple charges in exchange for one OWI conviction which had, at its core, repeater consequences designed to remove drunk drivers from Wisconsin highways); Robinson, 249 Wis. 2d 553, ¶¶ 3, 6 (concluding that an accused breached his plea agreement when he successfully challenged a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information had been amended pursuant to a negotiated plea agreement by which the State made charging concessions and the defendant's exposure had been reduced); Howard, 246 Wis. 2d 475, ¶ 19 (state promised to recommend concurrent sentences, but recommended consecutive at sentencing); Matson, 268 Wis. 2d 725, ¶¶ 23, 25 (holding that because the statements of an investigating officer are, for purposes of the sentencing hearing, the statements of the prosecutor, the officer's letter to the court recommending that the sentence be longer than was agreed to in the plea bargain was a material and substantial breach of the plea bargain); Williams, 249 Wis. 2d 492, ¶¶ 42-51 (holding that the State's "less than neutral presentation" of the plea bargain violated the terms of the plea agreement because it implicitly conveyed to the sentencing court that a more severe sentence was warranted than that the State agreed to recommend).

       We recognize that our holding was also premised on the fact that Wis. Stat. ch. 980 petitions are merely a "collateral consequence" of guilty pleas and the defendant was not entitled to relief in the form of a plea withdrawal as a result. See State v. Zanelli, 212 Wis. 2d 358, 367-68, 569 N.W.2d 301 (Ct. App. 1997). We do not view this alternate rationale as precluding the application of the case in its entirety.

       The majority cites three cases from foreign jurisdictions in support of its decision. I recognize the existence of these decisions, but point out that they are the only three published cases on this subject. So, what the State has done here is not a regular recurring event either in Wisconsin or elsewhere. I guess I am stating the obvious, therefore, by noting that three cases hardly translates into a general consensus. And, as to those three cases, I am not impressed by the ipse dixit rationale of two of these opinions or the reductive reasoning of the third, United States v. Fentress, 792 F.2d 461 (4th Cir. 1986). Rather, I find more persuasive the supreme court's language in State v. Deilke, 2004 WI 104, ¶ 19 n.17, 274 Wis. 2d 595, 682 N.W.2d 945, which stated, "[B]reaches of provisions that were not explicitly stated in plea agreements have been held to be material and substantial breaches." See also id., ¶ 19. I agree with the majority that the court's statement "cannot be read as broadly granting courts permission to read into a plea bargain any unarticulated and unnegotiated term," see majority op., ¶ 17 n.3, but that observation is largely beside the point. The clear import of the supreme court's language was to unequivocally reject the notion that all terms not expressly articulated are also unnegotiated. I do not see how the majority can say the defendant has not negotiated a term as basic as, "when do I get out of prison," when the parties have agreed on the specific sentence to be recommended. The majority dismisses Deilke and the cases it cites as relevant only where the State has violated an undisputed term of the contract or the defendant undermines "a benefit the State had bargained for by challenging one of the convictions underlying the agreed upon sentence." Majority op., ¶ 17 n.3 (emphasis added). I do not understand why there can be a breach when the defendant undermines an unexpressed benefit the State expected but not vice versa.
      And I must profess complete surprise that the majority uses State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), to support its holding. In Zanelli, we held that the State was not foreclosed from filing a petition for a civil commitment as Zanelli's prison term was nearing its end just because it had agreed in a plea bargain to a sentencing cap recommendation for the underlying crime. As the plethora of Wis. Stat. ch. 980 cases attest, ch. 980 commitments are civil commitments and are not penal in character. The plea bargain in Zanelli went to penal limitations and the later ch. 980 petition was outside any penal consideration. Thus, Zanelli is far different from this case where the recommendation for a consecutive sentence was undeniably focused on Bowers' penal exposure. Zanelli is completely off point.


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    Robert Schmitz, Plaintiff-Appellant, Balboa Insurance Company, Equicredit Corporation of America, and Fairbanks Capital Corporation, Subrogated-Plaintiffs, v. Fire Insurance Exchange d/b/a Farmer's Insurance Group, Defendant-Respondent, Karen L. Paladino and Fireman's Fund Insurance Company, Defendants.
    Court of Appeals

      No. 04-1545.

      Submitted on briefs January 20, 2005.

    Decided March 9, 2005.

    2005 WI App 76
    (Also reported in 696 N.W.2d 238.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Daniel S. Draper and Joseph

      M. Cardamone III, of Gagliardi, O'Brien, Braden, Olson & Capelli of Lake Geneva and Salem.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Richard E. Schmidt and Amy E. Wochos of Piper & Schmidt of Milwaukee.
    Before Anderson, RJ., Brown and Nettesheim, JJ.
   NETTESHEIM, J.

¶ 1. Robert Schmitz appeals from a summary judgment granted in favor of Fire Insurance Exchange (FIE), d/b/a Farmer's Insurance Group. The trial court determined that FIE had properly cancelled Schmitz's homeowner's insurance policy by mailing a cancellation notice at least ten days prior to a fire at Schmitz's residence.

¶ 2. At issue is the language in Wis. Stat. § 631.36(2) (c) (2003-04) which provides that a termination of a new policy that has been in effect less than sixty days at the time the notice of cancellation is mailed or delivered is not effective "until at least 10 days after the 1st class mailing or delivery of a written notice to the policyholder." (Emphasis added.) Schmitz, a new policyholder, contends that the language of § 631.36(2)(c) is ambiguous as to whether the effective cancellation date is measured from the time of mailing or the time of delivery. Schmitz argues that the trial court erred by measuring the effective date of cancellation from the date of the mailing of the cancellation notice rather than from the date of Schmitz's receipt of the notice.

¶ 3. We conclude that Wis. Stat. § 631.36(2)(c) clearly contemplates two separate and distinct forms of notifying an insured of cancellation — either by postal mailing or by a form of personal delivery other than mailing. Because FIE informed Schmitz of its cancellation by mail, we conclude that the trial court correctly measured the effective date of cancellation from the date of mailing. We affirm the judgment.

BACKGROUND

¶ 4. Schmitz resided at W1389 West Post Road, Pell Lake, Walworth County, Wisconsin, but maintained a mailing address of PO. Box 323, Genoa City, Wisconsin. On November 9, 2001, Schmitz met with FIE insurance agent Karen L. Paladino and filled out an application for a homeowner's insurance policy with FIE. Paladino advised Schmitz that FIE might deny his application because Schmitz had a prior claim on a previous policy. Nonetheless, Paladino issued Schmitz an FIE binder for coverage, and Schmitz paid for two months of premiums.

¶ 5. At the time of his application, Schmitz lived in an area that did not have home delivery of mail. Although Schmitz's physical address and the residence to be insured were located on West Post Road in Pell Lake, Schmitz provided Paladino with his mailing address at a PO. Box in Genoa City. Paladino wrote Schmitz's mailing address on his application but failed to input the mailing address on the computer. As a result, when the application on the computer was transmitted to FIE's underwriting department, it did not recite Schmitz's Genoa City mailing address.

¶ 6. On November 12, 2001, FIE informed Pala-dino that it was declining to insure Schmitz's property. On November 19, 2001, FIE issued two mailings to Schmitz. One was a letter dated November 19, 2001, which advised Schmitz, "We are sending the enclosed refund check because your insurance company, or companies, has cancelled your policy, or policies, and your account is closed." The second, also dated November 19, 2001, was a Notice of Cancellation reciting a cancellation date of December 6, 2001. Both the notice and letter were addressed to Schmitz's physical address in Pell Lake, not his mailing address in Genoa City.

¶ 7. During discovery, Schmitz produced an envelope which he recalled contained a letter from FIE informing him that his insurance had been cancelled. This envelope carries a postmark date of November 27, 2001. Affixed to the envelope is a change of address sticker dated December 1, 2001, indicating an incorrect mailing address in Genoa City. Also affixed to the envelope is a second change of address sticker dated December 4, 2001, showing Schmitz's correct mailing address in Genoa City. According to an affidavit of the Genoa City Postmaster, when a letter is mailed to a Genoa City address, it is processed through the Genoa City Post Office. If there is a change of address on file, the letter is sent back to the Milwaukee Post Office for processing. According to the postmaster, the second change of address label dated December 4, 2001, indicates that the letter was processed at the Milwaukee Post Office and forwarded to Genoa City for delivery to Schmitz's correct address on the date indicated, December 4, 2001. Schmitz's recollection was that he received this mailing on December 8,2001, or December 10,2001.

¶ 8. On December 17, 2001, a fire occurred at Schmitz's residence. Schmitz contacted Paladino who informed him that he did not have a valid homeowner's insurance policy with FIE. As a result, Schmitz filed the instant action against FIE, Paladino and Paladino's liability insurer alleging breach of contract, bad faith, negligence and asserting a claim for punitive damages. FIE defended on the grounds that Schmitz's policy had been effectively cancelled, at the latest, as of December 14, 2001, ten days after the Milwaukee Post Office had mailed the envelope advising Schmitz of the cancellation. Since the fire occurred on December 17, 2001, FIE denied coverage.

¶ 9. Schmitz and FIE filed cross-motions for summary judgment. Following oral argument, the trial court found that Wis. Stat. § 631.36(2) (c) is unambiguous and that the date of mailing was the proper date from which to compute the ten-day period under the statute. Since the summary judgment evidence unequivocally demonstrated that FIE gave notice of cancellation by the first class mailing from the Milwaukee Post Office on December 4, 2001, the court further held that the policy was cancelled as of December 14, 2001, three days before the fire at Schmitz's residence. Therefore, the court granted summary judgment to FIE and dismissed Schmitz's complaint. Schmitz appeals.

DISCUSSION

¶ 10. This case was presented to the trial court on cross-motions for summary judgment. Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). This appeal turns on the interpretation of Wis. Stat. § 631.36(2)(c), a matter that we also decide de novo. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996) (statutory construction involves a question of law that we review de novo).

¶ 11. Wisconsin Stat. § 631.36 governs the termination of an insurance policy by an insurer. At issue in this case is subsec. (2)(c), which addresses the midterm cáncellation of new policies that have been in effect less than sixty days at the time the notice of cancellation is mailed or delivered. Subsection (2)(c) provides that "[n]o cancellation under this paragraph is effective until at least 10 days after the 1st class mailing or delivery of a written notice to the policyholder." The purpose of the notice provisions in § 631.36 is to protect insureds from unwittingly being left without coverage. Hoeft v. United States Fire Ins. Co., 153 Wis. 2d 135, 142, 450 N.W.2d 459 (Ct. App. 1989) (addressing the purpose of nonre-newal notice requirements in § 631.36).

¶ 12. Schmitz contends that the trial court erred in finding that the FIE policy was cancelled as of December 14, 2001, ten days after the Milwaukee Post Office mailed the cancellation notice to Schmitz's correct Genoa City address. Schmitz argues that Wis. Stat. § 631.36(2) (c) is ambiguous in its use of the terms "mailing or delivery." Schmitz reasons that because ten days had elapsed between the date of original mailing (November 27) and the earliest date of delivery according to his recollection (December 8), the effective date of the cancellation has to be measured from the date of delivery. That would place the earliest effective date of the cancellation at December 18, 2001, the day after the fire.

¶ 13. In effect, Schmitz is arguing that his receipt of the mailing is the controlling date from which to measure the statutory ten days. This argument assumes that the "delivery" language of the statute is linked to the predicate act of "mailing" under the statute. This case turns on whether this assumption is correct.

¶ 14. In construing the language of Wis. Stat. § 631.36(2)(c), we attempt to give effect to the legislative intent, based on the statute's language, scope, history, context, subject matter, and purpose. See Hughes, 197 Wis. 2d at 978. We ascertain these factors by examining the text and structure of the statute, rather than extrinsic sources, unless the statute is ambiguous. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110.

[Sltatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning."

Id., ¶ 46 (citations omitted).

¶ 15. We begin by noting that Wis. Stat. § 631.36(2)(c) contemplates the giving of notice of cancellation by "mailing or delivery." (Emphasis added.) The legislature's use of the word "or" is important. "Or" is defined, in part, as "used as a function word to indicate an alternative." Webster's Collegiate Dictionary 817 (10th ed. 1997). Since "delivery" follows the term "mailing" in the statute, it follows that the term "delivery" represents an alternative to "mailing." Thus, we conclude that the legislature contemplated two separate and distinct forms of alerting an insured to the cancellation of a policy — either posting the notice via first class mail, or delivering it by some method other than postal mailing, i.e., personal delivery via an insurance agent or courier.

¶ 16. If we were to adopt Schmitz's interpretation that "delivery" equates with receipt of a mailed cancellation notice, we would render the use of the term "mailing" meaningless, since "delivery" of the mailing would always then be the benchmark for measuring the ten-day period under the statute. See State ex rel. Kalal, 271 Wis. 2d 633, ¶ 46 ("Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.") Moreover, if we adopted Schmitz's concept of "delivery" and also attempted to give meaning to the "mailing" provision of the statute, we would create havoc, confusion and uncertainty as to which event — the mailing or the receipt of the notice— should control in a given case. We do not construe statutes so as to produce such a confusing, absurd and unreasonable result. See id. (statutes are interpreted to avoid absurd and unreasonable results).

¶ 17. While at first blush the use of the terms "mailing" and "delivery" might suggest that the statute is limited only to the use of the postal mails, when read in context and with the purpose of the statute in mind, we hold that the terms address different modes of notifying an insured of cancellation — either by postal mailing or by some form of delivery other than the postal mails.

¶ 18. Schmitz relies on Seeburger v. Citizens Mutual Fire Insurance Co. of Wisconsin, 267 Wis. 213, 64 N.W.2d 879 (1954), and Benefit Trust Life Insurance Co. v. Office of the Commissioner of Insurance, 142 Wis. 2d 582, 419 N.W.2d 265 (Ct. App. 1987), in support of his argument that we should measure the running of the ten-day period from the date of receipt of the cancellation notice. We discuss each case in turn.

¶ 19. In Seeburger, the policy included a termination provision in accord with the standard fire policy mandated by Wis. Stat. § 203.01(1) (1953), which required "five days' written notice of cancellation." See-burger, 267 Wis. at 216. When the insured failed to pay an annual premium, the insurer mailed three successive notices of cancellation to the insured reciting a termination date of February 7, 1950. Id. at 216-17. Two of these notices were mailed more than five days before the termination date while the third notice was mailed after the termination date. Id. The third notice was also mailed to the insured's mortgagee. Id. at 217. The supreme court held that the first two cancellation notices complied with the five-day notice provision of the statutory standard fire policy, id. at 216, and therefore were "effective to terminate the rights of the [insured]." Id. at 218.

¶ 20. The supreme court next addressed whether the insured's mortgagee had received effective notice of the cancellation. The court held that the first two mailings did not terminate the mortgagee's coverage because those notices were not mailed to the mortgagee. Id. at 218-19. The court next noted that the third mailing was mailed to the mortgagee, but the mailing occurred after the effective date of the termination recited in the letter. Id. To remedy this problem, the court added five additional days from the date of the mailing when computing the effective cancellation date. Id. at 220. Because the fire loss occurred after this extension, the court concluded that the mortgagee, like the insured, could not claim coverage under the policy. Id. ("The extension of coverage for an additional five days from February 9, 1950, does not enable the plaintiff bank to recover ... because the fire loss occurred some thirteen months after such extended period of coverage terminated.")

¶ 21. In the course of its discussion, the supreme court made the following statement:

If the purpose of the five-day-notice provision is to afford the insured, or other loss payee, a reasonable opportunity to obtain other insurance, then the extending of the coverage for such required period, after receipt of a notice of termination which failed to comply with such time requirement, will provide such reasonable opportunity to procure other insurance.

Id. at 219-20 (emphasis added). Schmitz seizes on the supreme court's use of the word "receipt" in support of his argument that we should likewise use his receipt of FIE's cancellation notice as the date from which to measure the ten-day provisions of Wis. Stat. § 631.36(2)(c).

¶ 22. We reject Schmitz's reliance on this language from Seeburger for three reasons. First, the issue in Seeburger did not concern a statute using the terms "mailing or delivery" which are the crucial terms at issue in this case. Second, despite the supreme court's use of the word "receipt," the fact remains that the court did not extend the effective date of the cancellation from the date of the mortgagee's receipt of the notice; rather, the court extended the effective date from the date of the mailing. Thus, Seeburger actually supports our holding that when the postal mails are used to cancel a policy, the event of "mailing," not "delivery," is the proper focus of the inquiry. Third, the supreme court used the word "receipt" in reference to a cancellation notice which was untimely under the governing statute. Seeburger, 267 Wis. at 220. That is not the situation here since Schmitz received effective and timely notice of the cancellation as measured from the date of mailing, December 4, 2001.

¶ 23. Schmitz also relies on the court of appeals decision in Benefit Trust, a case very similar to Seeburger. In Benefit Trust, the insurer had sent multiple letters notifying the insured of the cancellation. Benefit Trust, 142 Wis. 2d at 590. The court of appeals held that the initial letter, while complying with the ten-day notice provisions of Wis. Stat. § 631.36(2)(b), was nonetheless of no legal effect because it merely threatened cancellation rather than unequivocally stating that the policy would be canceled. Benefit Trust, 142 Wis. 2d at 592. However, the court further held that the subsequent letter did not suffer from this infirmity. Id. at 593. But, as in Seeburger, the effective date of the cancellation had already passed as of the date the subsequent letter was mailed. Benefit Trust, 142 Wis. 2d at 593. Thus, the court employed the same remedy as in Seeburger — extending the effective date of the cancellation to ten days from the mailing of the letter. Benefit Trust, 142 Wis. 2d at 585, 594.

¶ 24. In the course of its holding, the Benefit Trust court cited to the "receipt" language used by the supreme court in Seeburger. Benefit Trust, 142 Wis. 2d at 593. Schmitz again seizes on this language in support of his argument that we must use his receipt of FIE's cancellation notice as the starting date for the running of the ten-day period under Wis. Stat. § 631.36(2)(c). For many of the reasons we have already recited in our discussion of Seeburger, we reject Schmitz's reliance on Benefit Trust. First, the issue in Benefit Trust did not concern any possible dichotomy between "mailing or delivery." Instead the core issue was whether the language of the cancellation notice adequately notified that the insurance had, in fact, been cancelled. Second, as in Seeburger, the court of appeals remedied the defect in the second letter by adding the statutory ten-day period to the date of mailing. As we have noted, that action supports our holding in this case that the date of mailing is the proper focus when the postal mails are utilized to provide notice of cancellation. Finally, also as in Seeburger, the court of appeals fashioned a remedy to correct a defect in an untimely notice. Here, as we have already held, the cancellation notice was timely and effective as measured from the date of mailing, December 4,2001. In summary, neither Seeburger nor Benefit Trust supports Schmitz's argument.

CONCLUSION

¶ 25. We conclude that the clear language of Wis. Stat. § 631.36(2) (c) addresses alternate methods of providing notice of cancellation to an insured, either by postal mailing or by some other form of delivery. Given that Schmitz does not challenge the trial court's finding that December 4, 2001, is the date of mailing reflected on the second change of address sticker, we uphold the trial court's determination that FIE's notice of cancellation became effective ten days thereafter, December 14, 2001. Since the fire loss occurred thereafter, the court correctly concluded that the FIE policy did not cover the loss

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       There is some dispute as to whether the cancellation letter or the notice was in the envelope produced by Schmitz. Schmitz represents on appeal that the envelope contained the cancellation letter with the refund check. FIE contends that in the trial court Schmitz represented that he was unsure whether the envelope contained the cancellation letter or the Notice of Cancellation. However, the uncertainty on this point is of no consequence since both mailings served to inform Schmitz that his insurance policy had been cancelled. Therefore, we will refer to the contents of the envelope as the "cancellation notice," regardless of the actual contents.

       FIE argues that because Schmitz filed a motion for summary judgment he cannot now argue on appeal that a material issue of fact exists as to when he received the notice of cancellation. However, Schmitz's argument that the trial court erred in granting summary judgment to FIE is separate from his argument that he was entitled to summary judgment. Nevertheless, based on our construction of Wis. Stat. § 631.36(2)(c), the date Schmitz received the notice is irrelevant.

       Such an interpretation would also create confusion under other statutes that recite "mailing or delivery" provisions. See,

        e.g., Wis. Stat. § 867.02(2)(i) (entitled "Mailing or delivery required,” which requires a petitioner in a summary assignment probate proceeding to "mail or deliver" a copy of the summary assignment order to all interested parties).

       Subsection (2) (b) of Wis. Stat. § 631.36, which was at issue in Benefit Trust Life Insurance Co. v. Office of the Commissioner of Insurance, 142 Wis. 2d 582, 419 N.W.2d 265 (Ct. App. 1987), governs the midterm cancellation of insurance policies generally. Subsection (2)(c) of the statute, which is at issue in this case, governs the cancellation of an insurance policy not previously renewed and which has been in effect less than sixty days at the time the notice of cancellation is mailed or delivered. However, the "mailing or delivery" language of both subsections is the same.


author: BROWN, J.

text:
    State of Wisconsin ex rel. Mateo D.O., Petitioner, v. Circuit Court for Winnebago County, the Honorable L. Edward Stengel, Chief Judge for Wisconsin Circuit Court 4th Judicial District, the Honorable Thomas Gritton and juvenile court judge, Respondents.
    Court of Appeals

      No. 05-0220-W.

      Submitted on briefs February 23, 2005.

      Decided March 9, 2005.

    2005 WI App 85
    (Also reported in 696 N.W.2d 275.)

      On behalf of the petitioner, the cause was submitted on the petition for supervisory writ by Colleen Bradley, assistant state public defender of Oshkosh.
    On behalf of the respondents, there was a response submitted by Peggy A. Lautenschlager, attorney general, and David C. Rice, assistant attorney general.
    Before Anderson, RJ., Brown and Nettesheim, JJ.

       Although this case was originally a one-judge matter under Wis. Stat. § 752.31(2) (2003-04), it was ordered that this case he decided by a three-judge panel pursuant to Wis. Stat. Rule 809.41(3) to permit publication of our decision. See Wis. Stat. Rule 809.23(1)(b)4. All references to the Wisconsin Statutes are to the 2003-04 version.

   BROWN, J.

¶ 1. Mateo D.O. petitions for a writ of mandamus compelling the Honorable L. Edward Stengel, Chief Judge for Wisconsin Circuit Court Fourth Judicial District, and the Winnebago Circuit Court, the Honorable Thomas Gritton presiding, to grant his request for judicial substitution. Two issues are presented: whether a chief judge has authority to review the denial of a substitution request made in a juvenile court proceeding under Wis. Stat. § 938.29(1) and whether the juvenile must personally sign the substitution request. We conclude that under Wis. Stat. § 801.01(2), the chief judge has authority to review and rule on a substitution request in a juvenile proceeding and that the substitution request is adequate if signed by the juvenile's attorney. We grant the writ of mandamus and direct the chief judge and the presiding judge to grant the request for judicial substitution.

¶ 2. The underlying action is a juvenile delinquency proceeding under Wis. Stat. § 938.12. Mateo's attorney filed a timely written request for judicial substitution with Judge Thomas Gritton. Judge Grit-ton denied the request because it was only signed by counsel. In a letter conveying that the request was denied, Judge Gritton wrote:

I am denying the substitution request pursuant to Wisconsin Statute section 938.29(1). Although the statute indicates the juvenile's counsel may file the request it also reads that only the juvenile may request a substitution of judge. Your request does not include confirmation that you[r] client is specifically making the request. Without this confirmation, there is no way for me to determine that the request is being made by the juvenile.
As you know, I have required defendant^'] signatures for more than one year to insure that the defendant^] are aware they are personally waiving their individual right to substitution.

¶ 3. Mateo then moved Chief Judge L. Edward Stengel to review the denial of substitution and to assign a new judge. Chief Judge Stengel refused to act on the motion. He indicated that he lacked authority to review a request for substitution in a juvenile matter because his authority under Wis. Stat. § 801.58(2) applies only to civil actions or proceedings. Mateo's petition to this court followed.

¶ 4. We begin with Wis. Stat. § 938.29, setting forth the right to judicial substitution in an action under Wis. Stat. ch. 938. Section (lm) of that statute provides:

When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. Except as provided in sub. (2), if the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and reassignment as necessary.

¶ 5. The parties agree that the statute plainly authorizes the chief judge to act on the juvenile's request for substitution if the circuit court does not timely act on the request. The respondents contend that the chief judge's authority ends there. Mateo argues that because Wis. Stat. § 938.29(lm) does not address what happens when the substitution request is denied, Wis. Stat. § 801.58(2) applies and authorizes the chief judge to review the denial of substitution.

¶ 6. Wisconsin Stat. § 801.58(2) provides:

When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1). (Emphasis added.)

¶ 7. We observe the similarities between Wis. Stat. § 938.29(lm) and § 801.58(2) requiring a request for substitution to be acted on by the presiding judge in seven days and authorizing the chief judge to act if no timely determination is made. However, § 801.58(2) is more specific as to what occurs when a request for substitution is found not to be timely or in proper form.

¶ 8. Wisconsin Stat. § 801.01(2) provides in part: "Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings ... except where different procedure is prescribed by statute or rule." The respondents do not argue that a juvenile proceeding under Wis. Stat. ch. 938 is anything but a civil action or special proceeding. Rather, they argue that Wis. Stat. § 938.29(1m) sets forth a different procedure than that stated in Wis. Stat. § 801.58(2).

¶ 9. We do not agree. Review by the chief judge of the determination that a juvenile's request for substitution is not timely or in proper form is not inconsistent with the procedure in Wis. Stat. § 938.29(1m) regarding when and who makes the initial determination. Review by the chief judge is just the next step in the process. We conclude that Wis. Stat. § 801.58(2) applies when the juvenile's request for substitution is denied.

¶ 10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶ 15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶ 11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶ 14r-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.

¶ 11. We turn to whether Mateo's request for substitution was in proper form. Wisconsin Stat. § 938.29(1) provides in part: "In a proceeding under s. 938.12 or 938.13(12), only the juvenile may request a substitution of the judge. Whenever the juvenile has the right to request a substitution of judge, the juvenile's counsel or guardian ad litem may file the request." The circuit court determined that the provision that "only the juvenile may request a substitution of the judge," means that the juvenile must sign the motion or request. It suggested that the provision seeks to establish that the juvenile is making a knowing and voluntary exercise of the right to judicial substitution.

¶ 12. It may be a laudable goal to have a juvenile demonstrate his or her awareness of the right to substitution by personally signing a request for judicial substitution, but it is not required by the plain meaning of Wis. Stat. § 938.29(1). To so hold would eviscerate the provision that when the juvenile has the right to request a substitution of judge, the juvenile's counsel may file the request. Reading the two sentences together, the statute provides that in cases under Wis. Stat. §§ 938.12 or 938.13(12), the juvenile is the only party to the action that may request judicial substitution.

¶ 13. Further, Wis. Stat. § 802.05(l)(a) requires counsel of record to sign every motion or paper submitted by a party. The statute requires the party to sign a motion or paper only if he or she is appearing pro se. Cf. Dungan v. County of Pierce, 170 Wis. 2d 89, 94, 486 N.W.2d 579 (Ct. App. 1992) (looking at similar language in Wis. Stat. § 801.09(3)). It would be inconsistent to sometimes, but not always, require a litigant to sign a motion or pleading when the litigant is represented by counsel.

¶ 14. Inasmuch as the circuit court wants to use the juvenile's personal signature as evidence of his or her personal choice to seek substitution, counsel's signature on the request fulfills that requirement. See Schaefer v. Riegelman, 2002 WI 18, ¶ 30, 250 Wis. 2d 494, 639 N.W.2d 715 (the subscription requirement reflects "a deliberate process by which the lawyer guarantees the validity of a claim," "a protection that is at the core of an attorney's professional responsibility."). The exercise of the right to judicial substitution is on different footing from a waiver of that right. The request for substitution is itself evidence that the juvenile is aware of the right to substitution. Further, when a juvenile chooses to be represented by counsel, he or she delegates the exercise of certain tactical decisions to counsel, and a personal affirmation of the exercise of the right to judicial substitution is not necessary. Cf. State v. Kywanda F., 200 Wis. 2d 26, 36, 546 N.W.2d 440 (1996) (statutory right to judicial substitution in a juvenile delinquency proceeding does not trigger due process concerns); State v. Brunette, 220 Wis. 2d 431, 444, 583 N.W.2d 174 (Ct. App. 1998); State v. Hereford, 224 Wis. 2d 605, 617-18, 592 N.W.2d 247 (Ct. App. 1999) (when a tactical decision to assert or waive a right is delegated to counsel, the defendant need not make a personal statement waiving the right). The requirement that the juvenile sign the substitution request is unnecessary. Mateo's request, filed and signed by counsel, was in proper form.

¶ 15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 498, 546 N.W.2d 460 (1996). The circuit court violated a plain duty in refusing to honor Mateo's request. See State ex rel. Ondrasek v. Circuit Court for Calumet County, 133 Wis. 2d 177, 185, 394 N.W.2d 912 (Ct. App. 1986). We therefore grant the petition for a supervisory writ of mandamus and direct the chief judge and circuit court to honor the request for judicial substitution.

By the Court. — Writ granted.

       There is no basis for such an argument. Inasmuch as the juvenile justice code in Wis. Stat. ch. 938 is designed to handle juvenile crime outside of criminal proceedings, see Wis. Stat. § 938.01, proceedings under ch. 938 are civil.

       The respondents contend that if we decide that the chief judge has authority to review the denial of the juvenile's substitution request, the matter must be remanded to the chief judge for decision. We recognize that the chief judge has not ruled on the substitution request but deem it an efficient use of judicial resources to address the basis for Judge Gritton's denial of the substitution request.

       The provision stems from the all-inclusive nature of the first statutory grant of the right to judicial substitution in cases under the Children's Code. As originally enacted, the substitution provision governed all cases under Wis. Stat. ch. 48, and provided in part:
      The child, or the child's parent, guardian or legal custodian, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding.... In a proceeding under s. 48.12 or 48.13(12), only the child may request a substitution of the judge.
      1977 Wis. Laws ch. 354, § 51.


author: KESSLER, J.

text:
    Agnes E. Maciolek, and Agnes E. Maciolek, Trustee Under the Gerald B. Maciolek and Agnes E. Maciolek Revocable Trust Dated January 21, 1997, Plaintiffs-Respondents, v. City of Milwaukee Employes' Retirement System Annuity and Pension Board, Defendant-Appellant.
    Court of Appeals

      No. 04-1254.

      Oral argument February 02, 2005.

    Decided March 15, 2005.

    2005 WI App 74
    (Also reported in 695 N.W.2d 875.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kathy L. Nusslock and Daniel J. Borowski of Davis & Kuelthau, S.C. of Milwaukee. There was oral argument by Kathy L. Nusslock.

    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of and oral argument by James J. Winiarski of Milwaukee.
    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 6-1-2005.

   KESSLER, J.

¶ 1. The City of Milwaukee Employes' Retirement System Annuity and Pension Board ("ERS") appeals from an order granting summary judgment in favor of Agnes E. Maciolek ("Agnes") personally and as Trustee of the Gerald B. Maciolek and Agnes E. Maciolek Revocable Trust dated January 21, 1997. At issue is not whether the Trust is entitled to $27,422.24 in benefits; all parties agree the Trust should be paid. The issue is whether, as the holder of an asset due to a decedent, ERS can require Agnes to follow the procedures outlined in Wis. Stat. § 867.046(lm) before ERS is required to make payment. No Wisconsin case has specifically addressed this question.

¶ 2. After a careful review of the relationship between the statutes permitting "Washington Will" provisions in marital property agreements and the statutes providing for effecting transfers pursuant to such agreements, we conclude that the statutory provisions upon which ERS insisted are the only ones available to effect the transfer of this type of property, in the absence of an agreement between the holder of the property and the person seeking its transfer. Agnes must follow the court confirmation procedures outlined in Wis. Stat. § 867.046(1m) (2003-04). Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 3. In January 1997, Gerald and Agnes, husband and wife, consistent with Wis. Stat. § 766.58 (1997-98), executed a Marital Property Agreement ("Agreement"). That Agreement created a revocable trust. The Agreement also contained a "Washington Will" provision, which allowed property that would otherwise require probate to pass in a non-probate manner to the Trust upon the death of either spouse. The Agreement between Agnes and Gerald also included the following provisions:

1. Upon the death of either of the parties hereto, all of the decedent's ownership interests in any and all property which would otherwise be subject to probate administration, shall immediately pass to and vest in the Trustee of the "GERALD B. MACIOLEK AND AGNES E. MACIOLEK REVOCABLE TRUST DATED JANUARY 21, 1997" without probate and by nontesta-mentary disposition. UPON DEMAND AND UPON RECEIPT OF A COPY OF THIS AGREEMENT, ANYONE HAVING POSSESSION OF ANY SUCH PROPERTY SHALL IMMEDIATELY TRANSFER SAID PROPERTY TO THE SAID TRUSTEE. THE TRANSFER SHALL OCCUR WITHOUT FURTHER PROOF OF AUTHORITY OR OWNERSHIP OF SAID PROPERTY, AND WITHOUT ANY KIND OF COURT PROCEEDING OR COURT ORDER.
21. DIRECTIONS TO ANYONE HOLDING PROPERTY UPON OUR RESPECTIVE DEATHS. UPON THE FIRST SPOUSE'S DEATH, PLEASE IMMEDIATELY PAY OR RE-TITLE ALL ASSETS IN MY NAME, AND WHICH WOULD OTHERWISE BE SUBJECT TO PROBATE, TO THE TRUSTEE OF THE "GERALD B. MACIOLEK AND AGNES E. MACI-OLEK REVOCABLE TRUST DATED JANUARY 21, 1997". FOLLOW HIS OR HER INSTRUCTIONS. PLEASE DO NOT REQUIRE ANY KIND OF COURT APPROVAL OR DOMICILIARY LETTERS ....

(Emphasis in original; bolding removed.)

¶ 4. Gerald died on May 28, 2001. It is undisputed that at the time of his death, Gerald was entitled to $27,422.24 in benefits under the Global Pension Settlement ("GPS"), and that these benefits had not yet been paid. ERS was the entity holding this property and was responsible for distributing these assets. Agnes delivered documents to ERS indicating that she was the representative of Gerald's estate, that no personal representative had been court-appointed for Gerald's estate, and that the value of Gerald's solely owned property was greater than $20,000. ERS did not (and does not) dispute the validity of the Agreement, and did not claim that anyone other than Agnes was entitled to Gerald's benefits. ERS sent Agnes a packet of information that outlined a variety of procedures that she could use to facilitate payment of the benefits. All of these procedures are authorized by Wisconsin statutes and require some court proceeding or court authentication of her documents. The alternatives range from full probate to summary procedures.

¶ 5. ERS asked Agnes to select one of the procedures for transferring the property. ERS specifically indicated: "ERS may accept other alternatives to the probate procedures described above. For example, ERS will honor a 'Washington Will' provision in a Wisconsin Marital Property Agreement if a Certificate of Summary Confirmation of Interest in Property is obtained from a Wisconsin probate court."

¶ 6. In response, counsel for Agnes informed ERS that although Agnes would not seek a Certificate of Summary Confirmation of Interest in Property, which would require her to institute a court proceeding pursuant to Wis. Stat. § 867.046(lm), Agnes would file the Agreement with the Register of Deeds using Form HT-110, a form that is consistent with § 867.046(2).

¶ 7. Agnes supplied ERS with a recorded Form HT-110, which she had modified, and a certified copy of the Agreement. ERS refused to accept the tendered documents as sufficient to effect the transfer of Gerald's money to the Trust. ERS insisted that Form HT-110 cannot be used when the property at issue consists of GPS benefits and that Agnes must either use Wis. Stat. § 867.046(lm) or begin a probate proceeding, as those are the only transfer methods applicable to this type of property.

¶ 8. After a number of communications between the parties, which did not resolve the impasse, Agnes filed suit, seeking payment of the $27,422.24 in GPS benefits due Gerald. The trial court granted summary judgment in Agnes's favor. This appeal followed.

DISCUSSION

¶ 9. Neither party argues that there are genuine issues of material fact in dispute. At issue is only whether Agnes could compel ERS to effectuate payment upon receipt of either the Agreement, together with proof of Gerald's death, or a recorded modified Form HT-110, as sufficient proof of the Trust's entitlement, or whether ERS had the right to insist on the protections afforded it by insisting on compliance with Wis. Stat. § 867.046(lm).

¶ 10. ERS argues that other than a probate proceeding, Wis. Stat. § 867.046(lm) is the only means provided by the legislature to effectuate a nonprobate transfer of these retirement benefits under a Washington Will provision and to protect the transferor from liability for improper transfer.

¶ 11. In contrast, Agnes asserts that because the Washington Will nontestamentary transfer is specifically permitted by Wis. Stat. § 766.58(3)(f), no probate court proceeding, and no other involvement of a court, can be required by a transferor. In effect, Agnes argues that a Washington Will provision is, essentially, self-activating. In the alternative, Agnes argues that if some court proceeding is required, the procedure in Wis. Stat. § 867.046(2) is sufficient to require ERS to transfer this property.

A. Legal standards

¶ 12. Resolution of this case involves statutory interpretation, an issue of law that we review without deference to the trial court's opinion. State v. Greve, 2004 WI 69, ¶ 6, 272 Wis. 2d 444, 681 N.W.2d 479. When interpreting a statute, the primary objective "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. Knowing this, the court's analysis should begin with the plain language of the statutory text. Id., ¶ 45. If the language of the statute is clear on its face, the court should apply the statute using the common and generally accepted meanings of the terms. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 665 N.W.2d 181. With an unambiguous statute, the court need not consult extrinsic sources of interpretation. Kalal, 271 Wis. 2d 633, ¶ 46; see also Wagner v. Milwaukee County Election Comm'n, 2003 WI 103, ¶ 33, 263 Wis. 2d 709, 666 N.W.2d 816 ("[Statutes .. . should be construed to give effect 'to each and every word, clause and sentence' and 'a construction that would result in any portion of a statute being superfluous should be avoided wherever possible.'") (citation omitted). With those rules of construction in mind, we examine the various relevant statutes.

B. Statutory backgroundl

¶ 13. Wisconsin Stat. ch. 766 provides the overall structure of the Wisconsin marital property system. It also describes how many aspects of marital property classifications are to be implemented, particularly with respect to the impact on third parties. For example, Wis. Stat. § 766.56(2)(c) provides for advance notice to creditors if they are to be bound by provisions of a marital property agreement when they grant credit. Wisconsin Stat. § 766.57 protects a bona fide purchaser in a sale, even if the purchaser has notice of the marital property agreement. Wisconsin Stat. § 766.575 sets the rules for a trustee who administers property under a trust, and directs persons claiming entitlement to such property under a marital property agreement to assert their rights by submitting a formal notice of claim and the marital property agreement to the trustee. In effect, all of these provisions create a paper trail, which establishes the terms, if not the validity, of the agreement.

¶ 14. Analysis of Wis. Stat. § 766.58(3)(f), the statute authorizing Washington Will provisions in marital property agreements, is required here. The statute deals generally with what marital property agreements may provide. Section 766.58(3) (f) states that a marital property agreement may include a provision:

Providing that upon the death of either spouse any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition. Any such provision in a marital property agreement is revoked upon dissolution of the marriage as provided in s. 767.266 (1). If a marital property agreement provides for the nontestamentary disposition of property, without probate, at the death of the 2nd spouse, at any time after the death of the first spouse the surviving spouse may amend the marital property agreement with regard to property to be disposed of at his or her death unless the marital property agreement expressly provides otherwise and except to the extent property is held in a trust expressly established under the marital property agreement.

(Emphasis added.) In outlining the numerous things to which a marital property agreement may be applied, § 766.58(3m) states that "Chapter 854 applies to transfers at death under a marital property agreement." Specific reference to another statute dealing with the mechanics of property transfer in the very portion of the Wisconsin Marital Property Act permitting marital property agreements requires that we consider how to effect the provisions of both statutes. See Abbas v. Palmersheim, 2004 WI App 126, ¶ 23, 275 Wis. 2d 311, 685 N.W.2d 546 ("[W]here statutes relate to the same subject matter, they should be read together and harmonized if possible," which requires reading them "together in a way that gives each full force and effect.").

¶ 15. Wisconsin Stat. ch. 854 establishes governing rules for nontestamentary transfers resulting from trusts, marital property agreements and the like when the transfer may impact some third party. For instance, it sets a variety of terms which apply in the event beneficiaries of nontestamentary transfers die before the decedents, or in the event property that is disposed of by such a transfer is still subject to a mortgage or has been sold. Significantly, the chapter also provides protection for persons holding assets subject to nontesta-mentary dispositions who make payments or transfer assets consistent with the provisions of ch. 854.

¶ 16. Wisconsin Stat. § 854.23 provides protection for payers and third parties who make payments pursuant to the requirements of a marital property agreement, and who do not have actual notice of a competing claim to the property. This protection, however, depends on whether the payer has received a "governing instrument" which is specifically defined by § 854.23(1) as one of only three specific alternatives. One alternative is a verified statement pursuant to Wis. Stat. § 865.201 by the person appointed as personal representative in an informal administration, which confirms the transfer of interest in property pursuant to a marital property agreement. A second alternative is the certificate obtained under Wis. Stat. § 867.046(lm), which requires a court to issue a certificate authorizing transfer of the property upon presentation of specific identified documents to the court. A third alternative is a recorded application under § 867.046(5), which permits any of the three alternative methods provided in § 867.046(lm), (2), and (3).

¶ 17. Wisconsin Stat. § 867.046 provides the procedure for summary confirmation of an interest in property. It provides in relevant part:

867.046 Summary confirmation of interest in property.
(1) Definitions. In this section:
(a) "Beneficiary of a marital property agreement" means a designated person, trust or other entity having an interest in property passing by nontestamentary disposition under s. 766.58 (3) (f).
(b) "Survivorship marital property" means property held under s. 766.60 (5) (a).
(lm) Upon death; generally. If a domiciliary of this state dies who immediately prior to death had an interest in property in this state, including an interest in survivorship marital property, or if a person not domiciled in this state dies having an interest in property in this state, including an interest in survivorship marital property, upon petition of the decedent's spouse or upon petition of a beneficiary of a marital property agreement to the court of the county of domicile of the decedent or, if the decedent was not domiciled in this state, of any county where the property is situated, the court shall issue a certificate under the seal of the court. The certificate shall set forth the fact of the death of the decedent, the termination or transfer of the decedent's interest in the property, the interest of the petitioner in the property and any other facts essential to a determination of the rights of persons interested. The certificate is prima facie evidence of the facts recited, and if the certificate relates to an interest in real property or to a debt secured by an interest in real property, the petitioner shall record a certified copy or duplicate original of the certificate in the office of the register of deeds in each county in this state in which the real property is located.
(2) Upon death; INTEREST in property. As an alternative to sub. (lm), upon the death of any person having an interest in any real property, a vendor's interest in a land contract, an interest in a savings or checking account, an interest in a security or a mortgagee's interest in a mortgage, including an interest in survivorship marital property, the decedent's spouse or a beneficiary of a marital property agreement may obtain evidence of the termination of that interest of the decedent and confirmation of the petitioner's interest in the property by providing to the register of deeds of the county in which the property is located the certified death certificate for the decedent and, on applications supplied by the register of deeds for that purpose, all of the following information ....

(Emphasis added.)

C. Whether Wis. Stat. § 867.046(lm) and (2) are optional mechanisms to confirm an interest in property

¶ 18. Agnes does not dispute that Wis. Stat. § 867.046(lm) and (2) provide mechanisms for court confirmation. Instead, she argues their use is merely optional and that she need not elect to use them. Agnes contends that because her marital property agreement is consistent with Wis. Stat. § 766.58(3)(f) and because the Agreement, by its own terms, specifically states that no court confirmation should be required, ERS cannot require her to comply with the court confirmation procedures outlined in § 867.046. In essence, Agnes argues that she and Gerald were free to agree on how to implement their Agreement without regard to other legislative provisions or the interests of others holding assets to which her Agreement applies. Agnes asks us to conclude that the provisions of Wis. Stat. chs. 854 and 867 are merely surplusage, options available for those interested in using them.

¶ 19. Agnes misreads the context of these statutes and of Wis. Stat. § 766.58. No provision of § 766.58(3) permits the parties to ignore Wis. Stat. ch. 854 or to agree to prohibit court involvement in implementing their Agreement. Indeed, stipulations between parties purporting to deprive a court of jurisdiction have not fared well in the courts. See, e.g., Ayres v. Ayres, 230 Wis. 2d 431, 441, 602 N.W.2d 132 (1999) (" '[T]here is no such thing in this state as a divorce by consent or agreement. The parties cannot by stipulation proscribe, modify, or oust the court of its power to determine the disposition of property, alimony, support, custody, or other matters involved in a divorce proceeding.'") (citation omitted); see also Herrell v. Herrell, 144 Wis. 2d 479, 488, 424 N.W.2d 403 (1988) (Parties may not stipulate to a lesser standard of proof than that required by statute.). The "Washington Will" provisions permit transfer of property -without probate. That does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. The very statutes that permit broad provisions in marital property agreements also specifically make agreements subject to the implementation mechanism of ch. 854. The legislature made transfers at death simpler than full probate, but it did not leave the mechanics and implementation to people's own devices. Certain public protections against fraud and clouded titles are still required by the legislative scheme set out in ch. 854 to implement these agreements, in the absence of agreement between the asset holder and the party seeking transfer of the asset.

D. Use of Wis. Stat. § 867.046(2)

¶ 20. Agnes contends that even if a confirmation procedure under Wis. Stat. § 867.046 can be required by the party holding the property, she should be able to use the procedure outlined in § 867.046(2) to provide sufficient proof of ownership for ERS. Whether she is allowed to use the procedure outlined in that statute depends on whether the ERS benefits are included in the list of property to which § 867.046(2) applies. See League of Wisconsin Municipalities v. Department of Commerce, 2002 WI App 137, ¶ 21 n.6, 256 Wis. 2d 183, 647 N.W.2d 301 (" 'Expressio unius est exclusio alterius' is a 'canon of construction holding that to express or include one thing implies the exclusion of the other.'") (citing Black's Law Dictionary 602 (7th ed. 1999)). Section 867.046(2) identifies as being subject to its benefits "an interest in any real property, a vendor's interest in a land contract, an interest in a savings or checking account, an interest in a security or a mortgagee's interest in a mortgage, including an interest in survivorship marital property." With respect to such property, "the decedent's spouse or a beneficiary of a marital property agreement" can take action. The question, therefore, is whether the benefits in question fall into any of these classifications.

¶ 21. Retirement benefits (or litigation settlements) are neither securities nor any of the real estate-related interests described. Neither are they a savings or checking account. Only if the benefits are "survivor-ship marital property" can they squeeze through the narrow door of Wis. Stat. § 867.046(2). Survivorship marital property is described and defined by Wis. Stat. § 766.60. It is generally understood to be property that is titled in more than one name in a particular manner, so that it will pass at the death of one to the survivor. Hence, the name "survivorship." All types of property can be subject to a marital property agreement, not just survivorship property. The benefits at issue here were titled only in Gerald's name. Counsel confirmed during oral argument that Gerald had no ability during his lifetime to transfer these assets to another person or to identify another person as a co-owner. Consequently, the benefits are not survivor-ship marital property. Thus, we must conclude that Agnes was not entitled to use § 867.046(2) to terminate Gerald's interest in the GPS benefits. While some might think it better policy if the legislature had made this simpler method of transfer applicable to pension benefits, other retirement benefits, or litigation settlements, it did not choose to do so. Redress of this limitation must be sought other than from this court.

E. Whether the GPS benefits should be paid as marital property

¶ 22. Finally, we address Agnes's alternative argument that ERS should have paid her half of the GPS benefits because the benefits were marital property and, as the surviving spouse, she was entitled to her marital interest, which is half of the benefits. Agnes asserts that if that had occurred, the remaining amount to be paid would have been less than $20,000 and she could have then obtained the remaining benefits by use of a simple affidavit of transfer pursuant to Wis. Stat. § 867.03. The record does not reflect that Agnes ever asked ERS to pay half of the GPS benefits to her personally. Whether Agnes could have elected to receive half of the benefits, and the proof she would have been required to submit, were not issues submitted to the trial court and thus are not properly before this court. We decline to consider them further. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (noting that this court generally does not consider issues which were not raised below), superseded on other grounds by Wis. Stat. § 895.52.

By the Court. — Order reversed and cause remanded for further proceedings consistent with this opinion.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Although Wis. Stat. § 766.58 has been amended since 1997, Agnes does not argue that this court is bound to consider the statute as it existed in 1997. Therefore, we will consider only the current version of the statute in our analysis.

       A "Washington Will" is a will substitute agreement specifically authorized by Wis. Stat. § 766.58(3)(f). Its name is derived from its origin in the community property laws of the state of Washington. 2 B. Abramson et al., Advising Older Clients and Their Families § 14.113 (2000).

       Because the value of the estate exceeded $20,000, transfer by affidavit, available for estates of that or lesser value, was not available here. See Wis. Stat. § 867.03.

       Form HT-110 sets out the name, date of death and address of the decedent. It allows the person filing the form to check from a selection on the form the property to which it is intended to apply, and it indicates that a certified copy of the death certificate and the document establishing ownership are to be attached. All of this is recorded with the Register of Deeds in the county where the decedent was domiciled at death.

       Although it was acknowledged during oral argument that it would have been less expensive and faster to simply comply with ERS's request that Agnes use the summary confirmation procedure outlined in Wis. Stat. § 867.046(1m), concessions at oral argument suggest that both parties felt the issue of what proof is required to effectuate a Washington Will provision in a martial property agreement was one in need of resolution by the courts.

       Wisconsin Stat. § 854.23 provides:
      Protection of payers and other 3rd parties. (1) Definition. In this section, "governing instrument" includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (lm) or a recorded application under s. 867.046 (5).
      (2) Liability depends on notice, (a) A payer or other 3rd party is not hable for having transferred property to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the property, or for having taken any other action in good faith rebanee on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter. However, a payer or other 3rd party is hable for a payment made or other action taken after the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter.

       WISCONSIN Stat. § 867.046(5) provides:
      Recording; termination of property interest. Upon the recording, the application constitutes prima facie evidence of the facts recited and constitutes the termination of the property interest, with the same force and effect as if issued by the court assigned to exercise probate jurisdiction for the county of domicile of the decedent under s. 867.04.

       This opinion should not he understood to mandate use of Wis. Stat. chs. 854 and 867 if the asset holder does not insist on their protections. For example, a bank that has known both husband and wife for many years may feel sufficiently protected to transfer the account to the survivor of a joint account merely upon presentation of a copy of the death certificate. Or, a surviving spouse may feel comfortable transferring property to a trust created in a marital property agreement to which the survivor was a party without creating a clear chain of title.

       Wis. Stat. § 766.60 provides:
      Optional forms of holding property; survivorship ownership. (1) Spouses may hold marital property in a form that designates the holders of it by the words "(name of one spouse) or (name of other spouse) as marital property".
      (2) Spouses may hold marital property in a form that designates the holder of it by the words "(name of one spouse) and (name of other spouse) as marital property".
      (5)(a) If the words "survivorship marital property" are used instead of the words "marital property" in the form described in sub. (1) or (2), the marital property so held is survivorship marital property. On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by nontestamentary disposition at death. The first deceased spouse may not dispose at death of any interest in survivorship marital property. Holding marital property in a form described in sub. (1) or (2) does not alone establish survivorship ownership between the spouses with respect to the property held.
      (Emphasis added.)

       We express no opinion as to whether these benefits were Gerald's sole property or whether they were marital property in which Agnes had an untitled ownership interest. That question was not raised below and is not before this court.