author: WEDEMEYER, PJ. SCHUDSON, J.

text:
    In the Interest of Jerrell C.J., a Person Under the Age of 17: State of Wisconsin, Petitioner-Respondent, v. Jerrell C.J., Respondent-Appellant.

    Court of Appeals

      No. 02-3423.

      Oral argument September 17, 2003.

      Decided December 23, 2003.

    2004 WI App 9
    (Also reported in 674 N.W.2d 607.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of and oral argument by Eileen A. Hirsch, assistant state public defender of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney, by John Stoiber, assistant district attorney, Milwaukee. There was oral argument by John Stoiber.

      A nonparty brief was filed by Steven A. Drizin of the Children and Family Justice Center, Northwestern University School of Law, Chicago, Illinois, and Keith A. Findley of the Wisconsin Innocence Project, Frank J. Remington Center, University of Wisconsin Law School, Madison, for the Children and Family Justice Center at Northwestern University School of Law's Bluhm Legal Clinic and the Wisconsin Innocence Project at University of Wisconsin Law School's Frank J. Remington Center.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review granted 3-23-04.

   WEDEMEYER, PJ.

¶ 1 Jerrell C.J. appeals from an order adjudging him delinquent for the commission of armed robbery, party to a crime, contrary to Wxs. Stat. §§ 943.32(l)(b) & (2) and 939.05 (2001-02). He also appeals from an order denying his postdisposition motion. Jerrell claims the trial court erred in denying his motion seeking to suppress his statement. He contends that his statement was involuntary and that the police officers should have granted his request to call his parents. Because the trial court did not err in denying the motion to suppress, we affirm. We do, however, caution that a juvenile's request for parental contact should not be ignored.

I. BACKGROUND

¶ 2. On Sunday, May 27, 2001, at approximately 12:18 a.m., three young men entered the front door of a McDonald's restaurant in Milwaukee. Each was wearing a ski mask and holding a gun. Two of the men went into the kitchen area and told the employees to get down. The third went to the office, pointed a gun at the manager and said, "give me all the money." The manager complied and gave the robber $3590. The robbers left.

¶ 3. Two employees offered descriptions of the robbers. One employee stated: one was seventeen to nineteen years old, 5'10" to 5'11" tall, medium complexion and build, wearing a black hat and black knit face mask; the second was also seventeen to nineteen years old, had a lighter complexion, a thin build and was 5'8" to 5'9" tall, and wearing a knit face mask. Both were holding guns.

¶ 4. Another employee described the man with the lighter complexion: eighteen to twenty-three years old, light brown "bright" eyes, thin build, wearing a ski mask, holding a small black gun and "the inside of the barrel was red." That evening, Roscoe H., Jerrad H. and Randall J. were detained and later arrested as suspects in the robbery. On Monday morning, May 28, 2001, at approximately 6:20 a.m., fourteen-year-old Jerrell was arrested at his home. He was taken to the police station, booked, and placed in an interrogation room. He was handcuffed to the wall of the room for approximately two hours, until 9:00 a.m. At that time, Police Detectives Ralph Spano and Kurt Sutter began the interrogation.

¶ 5. The two detectives entered the room, introduced themselves to Jerrell, removed his handcuffs, and asked him some background questions. Jerrell told the officers that he was fourteen years old and in eighth grade. He provided the names, addresses and phone numbers of his parents and siblings.

¶ 6. At 9:10 a.m., Spano advised Jerrell of his Miranda rights. Jerrell waived his rights and agreed to answer questions. Spano told Jerrell that his cousin, Jerrad, had "laid him out for this robbery." Jerrell denied committing any robbery. Spano encouraged Jer-rell to be truthful and honest. Jerrell denied participating in the robbery. This exchange continued for the better part of the morning. At times, Spano raised his voice "short of yelling." Jerrell stated that "kind of frightened" him.

¶ 7. Jerrell was kept in the interrogation room until lunchtime, although several food and bathroom breaks were provided. At lunchtime, Jerrell was placed in a bullpen cell for about twenty minutes where he ate lunch. Interrogation resumed at approximately 12:30 p.m., and Spano said Jerrell "started opening up about his involvement" between 1:00 p.m. and 1:30 p.m. Also, at this time, Jerrell made two or three requests to telephone his mother or father. Spano denied the requests, indicating that he "never" allows a suspect to talk to anyone during interrogation because it could stop the flow of, or jeopardize, the interrogation. The interrogation was completed at 2:40 p.m. when Jerrell signed a statement admitting his involvement in the McDonald's robbery.

¶ 8. Jerrell moved to suppress his statement, claiming it was involuntary, unreliable, and a product of coercion. The trial court denied the motion. Jerrell and Jerrad were tried jointly in a court trial. The trial court adjudged both of them delinquent for committing armed robbery, party to a crime.

¶ 9. Jerrell filed a postdisposition motion seeking a new trial on the basis that his admission was unreliable, untrustworthy and involuntary. The motion pointed out the inconsistencies between Jerrell's statement and that of the eyewitnesses and other participants. The suggestion was that Jerrell, in fact, did not participate in the robbery, but was coerced into admitting participation during the police interrogation. The trial court found the discrepancies between Jerrell's statement and the other evidence were not material. The court concluded that Jerrell's knowledge of the total amount of money stolen, and his description of the gun, were sufficient evidence of reliability. The trial court also found that Jerrell's statement, under the totality of the circumstances, was voluntary. Jerrell now appeals.

II. DISCUSSION

A. Statement.

¶ 10. The issue in this case is whether Jerrell's statement was voluntary. Jerrell contends that the statement was coerced. He argues that given his age, the length of the interrogation, the lack of corroboration and the inconsistencies in the statement, the statement was unreliable and involuntary. The State responds that the interrogation did not involve any coercive techniques, it took place during the day, Jerrell had two prior police contacts, he was provided food and other breaks, and that any inconsistencies between Jerrell's statement and established facts can be explained. The trial court agreed with the State.

¶ 11. The question we must resolve involves both a constitutional issue, whether Jerrell's statement was voluntary, and a discretionary issue, whether the trial court erroneously exercised its discretion in denying Jerrell's motion to suppress the confession. In reviewing the latter, we will not disturb the trial court's findings of historical or evidentiary facts .unless they are clearly erroneous. See State v. Mitchell, 167 Wis. 2d 672, 682, 482 N.W.2d 364 (1992). However, the former involves a constitutional issue, subject to independent appellate review. State v. Esser, 166 Wis. 2d 897, 904, 480 N.W.2d 541 (Ct. App. 1992).

¶ 12. Our supreme court recently addressed the issue of whether a statement is voluntary in State v. Hoppe, 2003 WI 43, ¶¶ 34-40, 261 Wis. 2d 294, 661 N.W.2d 407.

A defendant's statements are voluntary if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist.

Id., ¶ 36 (citation omitted). We first must address whether Jerrell's confession was "coerced or the product of improper pressures exercised" by the police officers conducting the interrogation. Id., ¶ 37. We cannot conclude that the confession was involuntary without first concluding that coercive or improper police conduct occurred. Id.

¶ 13. In determining whether Jerrell's confession was voluntary, we consider the totality of the circumstances. Id., ¶ 38. This test requires "balancing . . . the personal characteristics of the defendant against the pressures imposed upon the defendant by law enforcement officers." Id. Relevant factors to consider include the individual's age, maturity, intelligence, education, experience, ability to understand, and presence of parents, guardian or counsel, Theriault v. State, 66 Wis. 2d 33, 42-43, 223 N.W.2d 850 (1974), as well as the defendant's physical and emotional condition, Hoppe, 261 Wis. 2d 294, ¶ 39. We balance the personal characteristics against the police pressures and tactics employed to induce the confession, such as

the length of the questioning, any delay in arraignment, the general conditions under which the statements took place, any excessive physical or psychological pressure brought to bear on the defendant, any inducements, threats, methods or strategies used by the police to compel a response, and whether the defendant was informed of the right to counsel and right against self-incrimination.

Id. Finally, when a juvenile is involved, courts must use the "greatest care" in assessing the voluntariness of the confession. In re Gault, 387 U.S. 1, 55 (1967).

¶ 14. We begin then with whether any coercive or improper police conduct occurred. We review whether, under the totality of the circumstances, Jerrell's statement was "coerced or suggested," or "the product of ignorance or rights or of adolescent fantasy, fright or despair." Gault, 387 U.S. at 55. This test involves balancing personal characteristics of the individual against the conduct of the police during the interrogation.

¶ 15. The first factor to be considered is age. Jerrell was fourteen years and ten months old at the time of the interrogation. Citing Hardaway v. Young, 302 F.3d 757 (7th Cir. 2002), cert. denied, 123 S.Ct. 1802 (2003), Jerrell argues that this factor favors finding that the statement was not voluntarily given: "The difficulty a vulnerable child of 14 would have in making a critical decision about waiving his Miranda rights and voluntarily confessing cannot be understated." See id. at 764. He points out that the younger the child, the more carefully the court must scrutinize police interrogation tactics. See id. at 765. The State emphasizes that Jerrell was almost fifteen years old and had two prior contacts with the police in which he was advised of his Miranda rights and waived them. The State also focuses on the fact that no evidence demonstrated that Jerrell was emotionally distraught or upset by the interrogation of the officers. Rather, Jerrell seemed to be "smirking" during most of the interrogation. The trial court found that Jerrell's age did not result in a statement that was a product of "adolescent fantasy." We cannot locate anything in the record to render that finding erroneous.

¶ 16. Although Jerrell was under fifteen years old at the time he made his statement, there was no indication in the record that his age interfered with his ability to provide a voluntary statement. As noted by the trial court, Jerrell was emotionally stable during the entire interrogation and showed no signs of psychological breakdown as a result of the questioning.

¶ 17. The second factor considered is education and intelligence. The trial court noted that Jerrell was in eighth grade. Given the time of year this incident occurred, it is safe to assume that Jerrell was nearing the completion of this grade. There is some dispute, however, regarding level of intelligence. The trial court noted that Jerrell had a 3.6 grade point average and appeared to be of higher than average intelligence. Jerrell points out that the high grade point average was not typical of past grades and that his IQ tests placed him in the lower end of average intelligence. The trial court found that these factors did not interfere with Jerrell's ability to give a voluntary statement. There is evidence in the record to support that finding and, therefore, we will not disturb it.

¶ 18. Additional factors to consider are Jerrell's maturity and experience. The trial court found that Jerrell appeared to be a mature, articulate individual. There was no evidence of any mental disease or defect, no indication that he was impaired by drugs, medication or alcohol, and no information suggesting he was in any physical pain or injured, and it appeared that Jerrell was "not apprehensive, fearful, [or] fretful while he was questioned." The trial court noted that immediately following the interview, Jerrell appeared "bored." The trial court also found that Jerrell had two previous contacts with police, thus suggesting that his susceptibility to coercive police tactics would be reduced. See Hardaway, 302 F.3d at 767 (it may be presumed that children who have a history of criminal involvement are more likely to understand their Miranda rights, and less likely to be susceptible to coercive conduct). Jerrell argues that his two prior contacts were insignificant as both involved misdemeanors and not serious offenses. Although we can appreciate the distinction, the fact remains that on both of those two prior occasions, Jerrell was given his Miranda rights and waived them. Accordingly, the previous police contacts weigh in favor of finding that Jerrell's statement was voluntary.

¶ 19. During the questioning, Jerrell made several requests to call a parent. The trial court did not find this factor significant in this case for several reasons. First, the requests came after Jerrell had admitted involvement, and second, the denial of the request was not for the purpose of denying Jerrell his right to counsel or right to remain silent. Therefore, the trial court found that the denial did not constitute improper police conduct. Accordingly, this factor did not implicate the voluntariness of Jerrell's confession. Although we address this issue more in depth in the latter part of this opinion, for dispositional purposes, we cannot conclude that the trial court's finding was clearly erroneous. The police officers' denial of Jerrell's request to call his parents was not per se coercive. Theriault, 66 Wis. 2d at 38.

¶ 20. In reviewing the totality of the circumstances, we also examine the length and circumstances of the interrogation. Jerrell's interview took place during the daylight hours and lasted a little more than five and one-half hours. Thus, the questioning did not take place during a time period that would suggest Jerrell might have been tired and, as a result, unfairly susceptible to police questioning. See Johnson v. State, 75 Wis. 2d 344, 355, 249 N.W.2d 593 (1977) (statement given during the time an individual would otherwise be asleep is a factor to consider when evaluating an individual's susceptibility to police pressure). During the questioning, Jerrell was afforded food and bathroom breaks, including a twenty-minute lunch break. It was estimated that througiipout the interview, there were between five and seven breaks.

¶ 21. Jerrell points out that he was handcuffed in a bullpen cell from the time he arrived at the station after being picked up at 6:20 a.m., until the interview began at 9:00 a.m. He points out that throughout the entire morning he repeatedly denied any involvement. He stated that he was somewhat fearful when Detective Spano raised his voice. He also contended that the officers promised him that if he confessed to the truth (his involvement), he would spend only one night in jail and then could go home. Jerrell points out that there are many inconsistencies between his statement and those of Jerrad and other witnesses. For example, Jerrell's statement says that he did not have a black ski mask, so he used a black T-shirt as a mask. All of the employees of the McDonald's stated that the robbers wore black ski masks. Jerrell's statement indicates that another individual, "Melvin," was involved in the crime, that Melvin's car was used, and that he used some of the stolen money to buy a new cap and new shoes. Jerrad's statement, in contrast, does not mention Melvin or Melvin's car. Further, police never found the new cap or new shoes to which Jerrell referred. In addition, Jerrell contends that the eyewitnesses indicated that the light-complected robber had brown "bright" eyes. Jerrell has green eyes.

¶ 22. The trial court considered all of these facts in rendering its decision. It made credibility determinations between the testimony of the police officers and that of Jerrell. The trial court found the police officers' testimony to be credible and that no coercive tactics were used. The trial court concluded that under the totality of the circumstances, Jerrell's statement was voluntary and not a product of coercion. In part, the trial court supported its conclusion because Jerrell's statement contained details of the crime that an uninvolved person would not have known — such as the amount of money stolen and the description of the gun.

¶ 23. Having independently reviewed the totality of the circumstances and the findings of the trial court, we cannot overturn the trial court's determination, which was based, in large part, upon the credibility of the witnesses. The findings made by the trial court are not clearly erroneous and, therefore, will not be reversed by this court. Because there is no evidence of police coercion or improper conduct, we conclude that Jerrell's confession was voluntary. Based on the foregoing, we conclude that the trial court did not erroneously exercise its discretion in denying Jerrell's request to suppress his statement.

B. Request for Parents.

¶ 24. We address separately an issue that does not affect the disposition of this appeal, but merits special attention from this court. As noted, after Jerrell admitted involvement, but before his statement was complete, he made two or three requests to call a parent. Detective Spano denied such a request for several reasons: (1) Spano does not let "anyone call their parents or relatives during the interrogation or anybody else"; (2) he did not want to stop the flow of the confession; and (3) allowing the phone call could adversely affect the investigation because Spano would lose control relative to any information exchanged via the telephone.

¶ 25. Although we have concluded that, under the facts of this particular case, the request to call parents and the denial of the request did not impact on the voluntariness of Jerrell's statement, we are gravely concerned about this issue. We are not alone. The decision to confess falsely by the youth of this country is the subject of numerous legal treatises across the nation. See, e.g., Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979 (1997). Concerns regarding this subject were submitted to us via the amicus curiae brief filed in this case on behalf of The Children and Family Justice Center at Northwestern University School of Law's Bluhm Legal Clinic and the Wisconsin Innocence Project at the University of Wisconsin Law School's Frank J. Remington Center.

¶ 26. In that amicus curiae brief, the authors stated that as of April 2003, 127 wrongly convicted people have been exonerated by DNA evidence. Of the first 111, 27 involved false confessions or admissions. The amicus authors argue that current psychological interrogation techniques are a major contributing factor to the false confession problem, which is magnified when the individual is a child. See Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogations, 88 J. Crim. L. & Criminology 429, 472-96 (1998). Consequently, the amicus authors ask this court for two things: (1) a per se rule, which would exclude confessions from any child under the age of sixteen who has been denied access to a parent or guardian; and (2) a mandatory rule requiring police to videotape all juvenile interrogations.

¶ 27. Although this court finds both requests compelling, we are without authority to order either. We are currently bound by the dictates of Theriault, which recognizes "that special problems may arise with respect to waiver of the [Miranda] privilege by or on behalf of children," 66 Wis. 2d at 39 (citation omitted) but applies the totality of the circumstances test. Id. at 38-44. Our supreme court rejected a request that a per se rule be applied when a minor confesses without the presence of a parent or legal guardian. Id. at 44. The court held that the absence of the parent or guardian is one factor to be considered under the totality of the circumstances test. Id. Consideration of this factor affords the trial court the discretion to determine the reason behind denying a juvenile's request to call his or her parents. See id. at 48. "If the police fail to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel, that would be strong evidence that coercive tactics were used to elicit the incriminating statements." Id. Accordingly, we are bound by that precedent.

¶ 28. We do note, however, that Theriault was decided in 1974, and the debate between the totality of the circumstances test versus a per se rule has been the focus of much recent attention. At least 13 states—Colorado, Connecticut, Hawaii, Indiana, Iowa, Massachusetts, Montana, New Mexico, North Carolina, Oklahoma, Texas, Vermont and West Virginia — have adopted, by case law or legislative action, some form of the per se rule. See Thomas J. Von Wald, Note, No Questions Asked! State v. Horse: A Proposition for a Per Se Rule When Interrogating Juveniles, 48 S.D. L. Rev. 143, 164 n. 237 (2002-03).

¶ 29. Reasons behind a per se rule are understandable. False confessions from juveniles are serious issues that need to be addressed. Legal scholars suggest that children simply do not understand their Miranda rights as well as adults. Grisso, Juvenile's Capacities to Understand Miranda Warnings: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1160 (1980). The Supreme Court stated that this is so because children lack the emotional and mental capability to make fully informed decisions. See Bellotti v. Baird, 443 U.S. 622, 640 (1979) (children are incapable of making decisions that "take account of both immediate and long-range consequences.") The implication is that, as a result, children are less capable of making important decisions. The Wisconsin legislature has recognized this tenet in a variety of ways: an individual must be twenty-one years old to purchase alcohol, Wis. Stat. § 125.97; an individual less than eighteen years old cannot purchase tobacco products, Wis. Stat. § 134.66; sixteen and seventeen year olds cannot get married without parental permission, Wis. Stat. § 765.02; children may not buy or lease a car without parental consent, Wis. Stat. § 218.0147; children under fourteen may not change their name without parental consent, Wis. Stat. § 786.36; and girls under eighteen may not obtain an abortion without parental consent (unless certain exceptions apply), Wis. Stat. § 48.375.

¶ 30. One author presents studies which demonstrate that a minor is more likely to give a false confession because of the inherent nature of children to want to please authority figures, coupled with the high suggestibility levels in children. See Jennifer J. Walters, Comment, Illinois' Weakened Attempt to Prevent False Confessions by Juveniles: The Requirement of Counsel for the Interrogations of Some Juveniles, 33 Loy. U. Chi. L.J. 487, 504-05 (2002). This article states that in some cases, "minors are incapable of fully realizing the consequences of their decisions," and therefore confess "because they believe it is the only way to end a psychologically coercive interrogation." Id. at 505. It is argued then, that taking this together with the additional knowledge that police can, without breaking any laws, lie about evidence, engage in trickery, and verbally harass suspects in order to obtain a confession, juveniles may confess to crimes they did not commit. According to one study, over a two-year period, almost a dozen juveniles in the United States who confessed to committing murder were subsequently proven innocent. Id. at 489. This problem is particularly troubling because once a child confesses, such evidence carries great weight with the fact-finder.

¶ 31. Having set forth the problem, the issue becomes: What is the solution? Courts and legislatures across the country are attempting to tackle the problem. The Vermont Supreme Court has set forth three criteria that must be satisfied before a juvenile's waiver would be found to be voluntary: (1) the juvenile "must be given the opportunity to consult with an adult; (2) that adult must be one who is not only generally interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult must be informed and be aware of the rights guaranteed to the juvenile." Von Wald, 48 S.D. L. Rev. at 165 (citation omitted).

¶ 32. Alaska and Minnesota have recording requirements for all custodial interrogations. See Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Some suggest that the "totality of the circumstances" analysis works best when it is based on a videotape of the interrogation. It is this court's opinion that it is time for Wisconsin to tackle the false confession issue. We need to take appropriate action so that the youth of our state are protected from confessing to crimes they did not commit. We need to find safeguards that will balance necessary police interrogation techniques to ferret out the guilty against the need to offer adequate constitutional protections to the innocent.

By the Court. — Orders affirmed.

SCHUDSON, J.

¶ 33. (concurring). Although I agree with the Majority's conclusion, I believe its opinion goes too far.

¶ 34. Was Jerrell's statement coerced? Because, as the Majority correctly concludes, (1) the trial court's factual findings are not clearly erroneous, and (2) Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850 (1974), precludes the per se rule the Remington Center seeks, the answer is no. And here, under the totality of the circumstances, the answer is all the more clear because Jerrell's request to call his parents came after he confessed.

¶ 35. That should conclude the analysis of the central issue in this appeal. The Majority, however, while acknowledging that its additional discussion "does not affect the disposition of this appeal," Majority at ¶ 24, goes on to comment at length on various topics relating to the possible propriety of a per se rule, Majority at ¶¶ 25-32. In doing so, the Majority approvingly cites certain case law and commentaries even though, in this case, they were not subjected to any debate or adversarial testing. This, I think, is unwise.

¶ 36. For sound reasons, we usually refrain from addressing issues that need not be resolved. See State v. Mikkelson, 2002 WI App 152, ¶ 17 n.2, 256 Wis. 2d 132, 647 N.W.2d 421 (we decide cases on the narrowest grounds). And for equally sound reasons, we usually resist the temptation to offer advisory opinions, particularly when the subject is a complicated one that has not been thoroughly explored through the adversarial process. See State v. Robertson, 2003 WI App 84, ¶ 32, 263 Wis. 2d 349, 661 N.W.2d 105 ("Courts act only to determine actual controversies — not to announce principles of law or to render purely advisory opinions."). We should not deviate here.

¶ 37. Therefore, although I also am intrigued by the Remington Center's suggestions and, in particular, by its arguments favoring the videotaping of all police interrogations, I believe these issues are best left unaddressed in this appeal. Accordingly, while agreeing with much of the Majority's opinion, I do not join in it entirely and, therefore, respectfully concur.

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

        See Miranda v. Arizona, 384 U.S. 436 (1966).

       We also conclude that the trial court's credibility assessment of the psychologist's testimony offered as new evidence during the postdisposition motion was not erroneous. As the trier of fact, the trial court is the sole arbiter of the credibility of witnesses, including expert witnesses. State v. Kienitz, 227 Wis. 2d 423, 440, 597 N.W.2d 712 (1999). The trial court was free to accept or reject the psychologist's opinion. Here, the psychologist offered an opinion that Jerrell did not knowingly and voluntarily waive his Miranda rights. That opinion, however, was based in part upon Jerrell's representations to the psychologist. The trial court compared those representations to the testimony Jerrell offered at trial and concluded that Jerrell's statements were inconsistent and therefore could not be relied upon. As a result, the trial court found that the psychologist's opinions, based upon incredible representations, could not be deemed trustworthy. We cannot conclude that the trial court's findings were clearly erroneous or that its credibility assessment was erroneous. Accordingly, we reject Jerrell's claim that the trial court's assessment on this issue was incorrect.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Duane Kuester, Petitioner-Appellant, v. Wisconsin Retirement Board, Respondent-Respondent.
    Court of Appeals

      No. 03-0056.

      Submitted on briefs August 13, 2003.

      Decided December 23, 2003.

    2004 WI App 10
    (Also reported in 674 N.W.2d 877.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Bruce F. Ehlke, Shneidman, Hawks & Ehlke, S.C., Madison.

      On behalf of the respondent-respondent, the cause was submitted on the brief of L. Jane Hamblen, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Vergeront and Lundsten, JJ.

       Petition to review denied 4-20-04.

   VERGERONT, J.

¶ 1. Duane Kuester, a retired firefighter, challenges the administrative rule the Wisconsin Retirement Board applied in determining that he was not entitled to receive duty disability benefits under Wis. Stat. § 40.65 (2001-02). He contends Wis. Admin. Code § ETF 52 is invalid because it is not authorized by statute and is inconsistent with § 40.65. Alternatively, he contends, even if the rule is valid, it was unlawfully applied to him retrospectively. The circuit court rejected these arguments and dismissed Kuester's petition for certiorari review of the Board's decision. We conclude the rule is valid and was lawfully applied to Kuester. We therefore affirm the circuit court's order of dismissal.

BACKGROUND

Statutory, Regulatory, and Case Law Background

¶ 2. Wisconsin Stat. § 40.65 establishes the duty disability program for protective occupation participants in the Wisconsin Retirement System, such as firefighters and police officers, who become injured while performing their duties. Participants first applying for benefits after May 3, 1988, file an application with the Department of Employee Trust Funds (DETF), which makes the initial determination of eligibility. Section 40.65(2)(b)l-3. The Board is charged with determining the amount of the benefits and the effective date. Section 40.65(3). The Board is also required by § 40.65(5)(b) to reduce the monthly duty disability benefits by certain other benefits payable to the participant.

¶ 3. Prior to Coutts v. Wisconsin Retirement Board, 209 Wis. 2d 655, 562 N.W.2d 917 (1997), the Board followed a procedure whereby it reduced an individual's duty disability benefits by all worker's compensation benefits received by that person, including worker's compensation benefits received prior to the commencement of the disability benefits. This procedure was based on the Board's construction of Wis. Stat. § 40.65(5)(b)3, which required it to reduce monthly duty disability benefits by "any worker's compensation benefit payable to the participant." The supreme court in Coutts reached the same conclusion this court did, holding that "payable" unambiguously referred to sums presently owing or to be remitted in the future, and the statute therefore did not authorize the Board to reduce duty disability benefits based on worker's compensation benefits paid prior to the commencement of duty disability benefits. 209 Wis. 2d at 668, aff'g 201 Wis. 2d 178, 547 N.W.2d 821 (Ct. App. 1996).

¶ 4. Following the supreme court's decision in Coutts, Wis. Admin. Code § ETF 52.10(1) was promulgated effective October 1, 1998:

(1) Depaktment to establish. The department shall establish an effective date for duty disability benefits for each participant whose application for duty disability benefits is granted. Duty disability benefits are not retroactive. The effective date for duty disability benefits is the later of:
(a) The date the participant's application form was received as determined under s. ETF 52.06(2), ignoring any previous applications.
(b) The participant's qualifying date.

Facts Related to Kuester

¶ 5. Kuester began employment as a firefighter with the City of Menomonie in 1973 and was classified as a protective occupation participant. He suffered a work-related injury on July 3, 1997. After a period of medical treatment while on sick leave, he attempted to return to active duty on or about September 16, 1997, but was unable to do so. He returned to sick leave status, on which he remained until he retired, effective March 13, 1999.

¶ 6. Kuester received temporary total disability worker's compensation benefits from July 11, 1997, through March 14, 1998, when he reached a healing plateau. He then applied for permanent partial disability worker's compensation benefits. Because of a dispute concerning those benefits, he did not receive them until a settlement was approved on August 6, 1999. Until his retirement on March 13, 1999, Kuester continued to hold the position of lieutenant with the fire department and was paid at his full-time base rate through a combination of accumulated sick leave and temporary total disability benefits.

¶ 7. On March 12, 1998, Kuester applied for duty disability benefits under Wis. Stat. § 40.65. At his request, DETF cancelled this application. Kuester filed a new application on September 28, 1999, and was approved for benefits on December 29, 1999. DETF determined that Kuester became disabled within the meaning of the statute on September 19, 1997. It further determined, applying Wis. Admin. Code § ETF 52.10, that the effective date of the payment of his benefits under that statute was September 28,1999, the date of his application following the one that he asked to have cancelled.

¶ 8. Kuester appealed DETF's decision to the Board, challenging the validity of Wis. Admin. Code § ETF 52.10 and, alternatively, the rule's applicability to disabilities occurring before the effective date of the rule. The Board affirmed, concluding that the rule was valid and was consistent with Coutts. The Board also decided that the rule could properly be applied to Kuester because it was in effect on the date he filed his application and the date he met the criteria for a disability under Wis. Stat. § 40.65(4), which, the Board determined, was March 13, 1999, not September 19, 1997.

¶ 9. Kuester petitioned for certiorari review of the Board's decision in the circuit court, and the circuit court affirmed the Board's decision.

DISCUSSION

¶ 10. On appeal, we do not review the circuit court's decision, but, rather, we review the decision of the Board. Klinger v. Oneida County, 149 Wis. 2d 838, 845 n.6, 440 N.W.2d 348 (1989). We apply the same standard of review as did the circuit court. State ex rel. Olson v. City of Baraboo Joint Review Bd., 2002 WI App 64, ¶ 8, 252 Wis. 2d 628, 643 N.W.2d 796. Our review is limited to determining: (1) whether the Board acted within its jurisdiction and authority; (2) whether the Board proceeded on a correct theory of law; (3) whether the Board's action was arbitrary, oppressive, or unreasonable; and (4) whether the evidence was such that the Board might reasonably have made the determination that it did. Klinger, 149 Wis. 2d at 843.

¶ 11. Kuester's challenges to the validity of Wis. Admin. Code § ETF 52.10 and its application to him implicate the first three standards. We address first his contention that § ETF 52.10 is invalid. According to Kuester, the Board has no statutory authorization to promulgate rules relating to Wis. Stat. § 40.65 and, even if it does, this rule is inconsistent with § 40.65(4).

¶ 12. An administrative agency has only those powers that are expressly conferred or necessarily implied from the statutory provisions under which it operates. Conway v. Board of the Police and Fire Comm'rs, 2002 WI App 135, ¶ 7, 256 Wis. 2d 163, 647 N.W.2d 291. If an agency promulgates a rule that conflicts with an unambiguous statute, the agency has exceeded its authority and the rule is invalid. Seider v. O'Connell, 2000 WI 76, ¶¶ 26, 28, 236 Wis. 2d 211, 612 N.W.2d 659. In deciding whether an agency has exceeded its authority in promulgating a rule, we use a de novo standard of review. Id., ¶ 25. As we do in construing all statutes, we look first to the statute's plain language, and if the language is unambiguous on its face, we apply that language to the facts at hand. Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI 143, ¶ 10, 267 Wis. 2d 59, 671 N.W.2d 633.

¶ 13. Wisconsin Stat. § 40.65(3) provides that the Board "shall determine the amount of each monthly-benefit payable under this section and its effective date." Wisconsin Stat. § 227.11(l)-(2)(a) provide:

Extent to which chapter confers rule-making authority. (1) Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the hounds of correct interpretation.

The Board thus has express statutory authority to promulgate rules on the determination of the amount of monthly benefits payable and the effective date. Wisconsin Admin. Code § ETF 52.10 does precisely that: it establishes the manner in which DETF is to determine the effective date of benefits for each application.

¶ 14. Kuester argues that the Board does not have authority to promulgate any rules under Wis. Stat. § 40.65(3) because only the Department of Workforce Development (DWD) is expressly granted rule-making authority under § 40.65. Section 40.65(2)(a) provides:

(2)(a) This paragraph applies to participants who first apply for benefits before May 3, 1988. Any person desiring a benefit under this section must apply to the department of workforce development, which department shall determine whether the applicant is eligible to receive the benefit and the participant's monthly salary. Appeals from the eligibility decision shall follow the procedures under ss. 102.16 to 102.26. If it is determined that an applicant is eligible, the department of workforce development shall notify the department of employee trust funds and shall certify the applicant's monthly salary. If at the time of application for benefits an applicant is still employed in any capacity by the employer in whose employ the disabling injury occurred or disease was contracted, that continued employment shall not affect that applicant's right to have his or her eligibility to receive those benefits determined in proceedings before the department of workforce development or the labor and industry review commission or in proceedings in the courts. The department of workforce development may promulgate rules needed to administer this paragraph.

Kuester points out that there is no comparable specific grant of rule-making authority for the Board in the context of specifying its duties under § 40.65(3).

¶ 15. We do not find Kuester's argument based on Wis. Stat. § 40.65(2)(a) to be persuasive. Under that paragraph, DWD determines eligibility only for applicants who first apply before May 3, 1988, whereas after that date, DETF makes the determination as provided in § 40.65(2)(b). There is no express provision granting DETF authority to promulgate rules for the determinations it is charged with making under § 40.65(2)(b). It is not a reasonable reading of subsecs. (2) and (3) that the legislature intended that DWD have the authority to make rules for applications before May 3, 1988, but no agency has the authority to make rules for administering the provision of benefits for persons who apply after that date.

¶ 16. More importantly, Kuester's argument overlooks the plain language of Wis. Stat. § 227.11(2)(a). This statute unambiguously confers on the Board the authority to promulgate rules interpreting statutes it administers or enforces if it considers that necessary to effectuate the purpose of the statute, as long as the rule is a correct construction of the statute. Without analyzing the language of § 227.11, Kuester asserts in general terms that it is "permissive, not mandatory; and.. . provide[s] only a limited authority to . . . notify the public, by promulgation of a rule, when it has interpreted a specific statutory provision in a particular way." We see scant relation between Kuester's description of § 227.11 and the pertinent language of that statute, and we therefore reject his construction.

¶ 17. Kuester also argues that Wis. Admin. Code § ETF 52.10 is inconsistent with certain provisions in Wis. Stat. § 40.65. First, he points to § 40.65(4), which establishes the eligibility criteria for duty disability benefits. Kuester contends that, because none of these criteria relate to the date of application, the legislature intended the effective date of benefits to be the date on which the eligibility criteria are met. We do not agree. If that had been the legislature's intent, there was no need to charge the Board with determining the effective date, as it plainly did in § 40.65(3).

¶ 18. Second, Kuester points to this language in Wis. Stat. § 40.65(2)(a):

If at the time of application for benefits an applicant is still employed in any capacity by the employer in whose employ the disabling injury occurred or disease was contracted, that continued employment shall not affect that applicant's right to have his or her eligibility to receive those benefits determined in proceedings before the department of workforce development or the labor and industry review commission or in proceedings in the courts.

Kuester asserts that this shows that an individual may become entitled to receive benefits at a point earlier in time than that provided under Wis. Admin. Code § ETF 52.10(1). However, para. (2)(a) applies only to applications filed before May 3, 1988, and the quoted language is not contained in para. (2)(b), which governs applications made after that date. Kuester does not explain how para. (2) (a) is relevant to determining whether § ETF 52.10 conflicts with statutory provisions governing applications filed after May 3,1988. We therefore do not consider this argument further.

¶ 19. Kuester makes the additional argument that the Board in its decision erroneously read some statements from both the supreme court's and this court's decisions in Coutts as expressing the view that duty disability benefits are not retroactive. In any event, he asserts, those statements are dicta and the Board therefore erred in relying on them. The statements at issue were made in the context of both the supreme court and this court addressing the concerns of the Board that, if it could not reduce monthly duty disability benefits by past worker's compensation benefits, a person who waited to apply for duty disability benefits until after receiving all worker's compensation benefits would have no reduction, whereas a person who applied for duty disability benefits while still receiving worker's compensation benefits would. See Coutts, 209 Wis. 2d at 672-73, 201 Wis. 2d at 193-94. The Board responds that its decision correctly reads the statements in the two Coutts decisions to say that duty disability benefits are not retroactive. The Board also asserts that whether the statements are dicta is irrelevant because the Board could choose to promulgate a rule consistent with the statements even if they are dicta.

¶ 20. We agree with the Board that it is not relevant whether the statements are dicta and, therefore, we do not decide that question. As we have already concluded, the Board has the authority to promulgate a rule to interpret Wis. Stat. § 40.65(3). Of course, in order to be valid, the rule may not conflict with a binding court decision, but the rule need not be specifically required by a court decision. The proper question is whether Wis. Admin. Code § ETF 52.10 conflicts with the supreme court's decision in Coutts. We conclude there is no conflict.

¶ 21. Kuester also makes an argument that is essentially based on public policy: he contends it is against public policy to tie the effective date to the date of application because that may limit the amount of benefits for a participant solely because he or she did not understand the need to make an application to establish an effective date. However, the public policy judgment is for the Board to make within the parameters established by the legislature. We have already held that Wis. Admin. Code § ETF 52.10 does not conflict with the relevant statutes. In addition, the legislature expressly requires the Board to reduce monthly duty disability benefits by certain other "payable" benefits; and the supreme court has stated that the legislature enacted Wis. Stat. § 40.65 to correct, among other problems, "duplicate benefits" caused by the lack of coordination between duty disability benefits and other income replacement programs. Coutts, 209 Wis. 2d at 671. Since Coutts, the reduction required by § 40.65(5)(b) can be made only for other benefits received while receiving duty disability benefits. See id. at 668. The Board could reasonably decide to tie the effective date to the date of application to avoid persons waiting until all other benefits had terminated before applying for duty disability benefits.

¶ 22. We next address Kuester's argument that, even if Wis. Admin. Code § ETF 52.10 is valid, it was improperly applied to him because he became entitled to duty disability benefits on September 19, 1997, before the rule was promulgated. The Board agrees with Kuester's premise that an administrative rule may not be applied retrospectively; but, the Board asserts, § ETF 52.10 has not been applied retrospectively to Kuester because he did not meet the statutory criteria for benefits until March 13, 1999.

¶ 23. Other than assert that he was entitled to duty disability benefits as of September 19, 1997, Kuester does not develop an argument in this court explaining why the Board erred in determining the date was March 13, 1999. Accordingly, we accept the Board's determination that March 13, 1999, was the date on which Kuester met the statutory criteria for duty disability benefits and we conclude that the rule, effective October 1, 1998, was not retrospectively applied to him.

By the Court. — Order affirmed.

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

       "Protective occupation participant" is defined in Wis. Stat. § 40.02(48).

       Wisconsin Stat. § 40.65(2) (b) 1-3 provide:
      (b) 1. This paragraph applies to participants who first apply for benefits under this section on or after May 3, 1988.
      2. An applicant for benefits under this section shall submit or have submitted to the department an application that includes written certification of the applicant's disability under sub. (4) by at least 2 physicians, as defined in s. 448.01 (5), who practice in this state -and one of whom is approved or appointed by the department, and a statement from the applicant's employer that the injury or disease leading to the disability was duty-related.
      3. The department shall determine whether or not the applicant is eligible for benefits under this section on the basis of the evidence in subd. 2. An applicant may appeal a determination under this subdivision to the department of workforce development.

       Wisconsin Stat. § 40.65(3) provides:
      (3) The Wisconsin retirement board shall determine the amount of each monthly benefit payable under this section and its effective date. The board shall periodically review the dollar amount of each monthly benefit and adjust it to conform with the provisions of this section. The board may request any income or benefit information, or any information concerning a person's marital status, which it considers to be necessary to implement this subsection and shall require a participant to submit a certified copy of his or her most recent state or federal income tax return. The board may terminate the monthly benefit of any person who refuses to submit information requested by the board or who submits false information to the board.

       The Board adopted the proposed decision of the hearing examiner, with some amendments. The Board disagreed with the examiner's conclusion that Kuester met the statutory criteria for "disabled" in September 1997, and concluded instead that he did not meet the criteria until his retirement in March 1999. However, the Board noted, this disagreement did not affect the determination of the effective date of Kuester's benefits, which under the rule was based on the date of the filing of the application on September 28, 1999.

       WISCONSIN Stat. § 40.65(4) provides:
      (4) A protective occupation participant is entitled to a duly disability benefit as provided in this section if:
      (a) The employee is injured while performing his or her duty or contracts a disease due to his or her occupation;
      (b) The disability is likely to be permanent; and
      (c) 1. The disability causes the employee to retire from his or her job;
      2. The employee's pay or position is reduced or he or she is assigned to fight duty; or
      3. The employee's promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability.

       The statements at issue are:
      The WRB also argues that if it cannot reduce a participant's monthly duty disability benefit payment by past worker's compensation payments, then persons otherwise similarly situated who apply for duty disability benefits at different times would receive different benefit amounts. The problem with this argument is that these two hypothetical participants are not otherwise similarly situated. The participant who waits several months or years to apply for duty disability benefits will forego receiving those benefits during those months or years. Thus, an eligible participant has every incentive to apply for this benefit even if it is reduced partially or totally by worker's compensation or some other income or benefit. Duty disability benefits are not retroactive; it is not clear that in the long run, a person who waits to apply for duty disability benefits will be better off than someone who does not.

        Coutts v. Wisconsin Retirement Board, 201 Wis. 2d 178, 193-94, 547 N.W.2d 821 (Ct. App. 1996) (footnote omitted).
      As the court of appeals noted, the participant who waits to apply for duty disability benefits gives up the opportunity to receive those benefits in the interim. Thus it appears that an injured employee has an incentive to apply for duty disability benefits without delay.
      We recognize that in limited instances a participant may have an incentive to delay in applying for duty disability benefits. However, it appears to us that the unpredictability of workplace injury precludes most of the opportunity to engage in such strategizing.

        Coutts v. Wisconsin Retirement Board, 209 Wis. 2d 655, 672-73, 562 N.W.2d 917 (1997).


author: SCHUDSON, J.

text:
    M&I Marshall & Ilsley Bank, Plaintiff-Respondent, v. Kazim Investment, Inc., and Neighborhood Improvement Development Corporation, Defendants, Resnant Properties Limited Partnership, Appellant.
    Court of Appeals

      No. 03-0404.

      Submitted on briefs December 2, 2003.

      Decided December 23, 2003.

    2004 WI App 13
    (Also reported in 678 N.W.2d 322.)

      On behalf of the appellant, the cause was submitted on the briefs of Christopher T. Hale of Hale & Wagner, S.C., of Milwaukee.
    On behalf of the respondent, the cause was submitted on the brief of Michael L. Sorgi of Sorgi Law Office, LLC, of Milwaukee.

      Before Wedemeyer, EJ., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. Resnant Properties Limited Partnership appeals from the circuit court order setting aside a sheriffs sale. Resnant argues that, under Wis. Stat. § 846.13 (2001-02), the court had no authority to accept a "Plan of Redemption," rather than full payment for redemption, and that, in doing so, the court violated its right to confirmation of its purchase of the property at the sheriffs sale. Resnant is correct and, therefore, we reverse.

I. BACKGROUND

¶ 2. The facts are undisputed. M&I Marshall & Ilsley Bank brought an action to foreclose on an apartment building that had become a public nuisance. On August 24, 2000, judgment of foreclosure was entered. At the sheriffs sale approximately two years later, Resnant, the owner of an adjacent property, was the successful bidder at $273,000. M&I properly applied for confirmation of the sale. See Wis. Stat. § 846.165.

¶ 3. At the confirmation hearing, Assistant City Attorney David Halbrooks, appearing on behalf of the City to offer information regarding the City's nuisance action, observed that Resnant was a "white knight" coming in to take over a problem property. In addition, three witnesses testifying on behalf of M&I, opined that Resnant's winning bid was for the property's "fair value." See Wis. Stat. § 846.165(2). Nevertheless, M&I continued to negotiate the possible sale of the property. And M&I had considerable incentive to do so given that Resnant's purchase price of $273,000, if confirmed, would have left a deficiency of almost $400,000. Over Resnant's objections, the court granted several adjournments of the confirmation hearing.

¶ 4. When the negotiations ripened to its satisfaction, M&I filed a motion to set aside the sheriffs sale. In its order granting the motion, the court stated that it was "satisfied that a Plan of Redemption has been executed and filed with the Court, which provides for a complete redemption of the foreclosure judgment, as set forth therein." That plan of redemption, however, did not provide for immediate full payment; instead, it established a plan for full payment of the negotiated price within six months.

II. DISCUSSION

¶ 5. Resnant argues that, under Wis. Stat. § 846.13, the circuit court had no authority to accept a plan of redemption that failed to provide for immediate, full payment. Resnant is correct.

¶ 6. A court's interpretation of Wis. Stat. § 846.13 and its application of the statute to undisputed facts present a question of law subject to our de novo review. See Hobl v. Lord, 162 Wis. 2d 226, 233, 470 N.W.2d 265 (1991). The statute provides:

Redemption from and satisfaction of judgment. The mortgagor, the mortgagor's heirs, personal representatives or assigns may redeem the mortgaged premises at any time before the sale by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff, or any assignee thereof, the amount of such judgment, interest thereon and costs, and any costs subsequent to such judgment, and any taxes paid by the plaintiff subsequent to the judgment upon the mortgaged premises, with interest thereon from the date of payment, at the same rate. On payment to such clerk or on filing the receipt of the plaintiff or the plaintiffs assigns for such payment in the office of said clerk the clerk shall thereupon discharge such judgment, and a certificate of such discharge, duly recorded in the office of the register of deeds, shall discharge such mortgage of record to the extent of the sum so paid.

Wis. Stat. § 846.13 (emphases added).

¶ 7. Resnant argues that Wis. Stat. § 846.13 "does not allow a party to redeem a foreclosed property by hoping to be able to pay the judgment amount at a later date or promising to make such a payment." M&I responds that the agreement it reached after the sheriffs sale "called for payment in full of the indebtedness over a period not to exceed six months," and argues that the statute "does not preclude the compromise of such [debtor-creditor] entitlements."

¶ 8. Relying on GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 572 N.W.2d 466 (1998), M&I supports its argument with three propositions: (1) "[f]oreclo-sure proceedings are equitable in nature"; (2) a circuit court has "equitable authority to exercise discretion" throughout foreclosure proceedings; and (3) a circuit court's "equitable authority may not be limited absent a 'clear and valid' legislative command." Id. at 480. These propositions are solid. However, M&I's contention— that the circuit court's "wide discretion" allowed for the approval of the agreement reached after the sheriffs sale — ignores the statute's clear and unambiguous requirement of full payment "before the sale." Wis. Stat. § 846.13.

¶ 9. "[Clourts should not rewrite the clear language of [a] statute." Wood v. City of Madison, 2003 WI 24, ¶ 38, 260 Wis. 2d 71, 659 N.W.2d 31. Where a clear and unambiguous statute establishes a prerequisite to an act or judicial order, a court has no discretion to alter or eliminate that prerequisite. See First Federated Sav. Bank v. McDonah, 143 Wis. 2d 429, 434, 422 N.W.2d 113 (Ct. App. 1988) (equitable authority does not allow a court to ignore a statutory mandate). Here, clearly, the statute establishes full payment of "the amount" of the judgment (and all interest, costs and taxes) as a prerequisite to redemption. Wis. Stat. § 846.13. And, just as clearly, the statute requires that full payment be "before the sale." Id. Thus, with "a 'clear and valid' legislative command," the statute does indeed limit a circuit court's "equitable authority" in circumstances like those of this case. See GMAC Mortgage Corp., 215 Wis. 2d at 480.

¶ 10. M&I's argument also ignores the supreme court's decision in Hobl. There, the supreme court decided "whether a mortgagor may redeem mortgaged property under sec. 846.13, Stats., for the 'stripped-down' value of the mortgaged property as determined by a bankruptcy court." Hobl, 162 Wis. 2d at 228-29 (footnotes omitted; footnote added). The supreme court held: (1) "a mortgagor may not redeem mortgaged property under sec. 846.13 for its stripped-down value," id. at 229-30; and (2) "a mortgagor may only redeem the mortgaged property under sec. 846.13 for the amount of the judgment entered in the foreclosure action," plus interest, costs and taxes (except that, of course, the mortgagor "could also obtain the mortgaged property by appearing at the sheriffs sale and making the highest bid"), id. at 230, 230 n.5 (emphasis added). And later in its opinion, the supreme court unequivocally reiterated, "Under sec. 846.13, Stats., a mortgagor may only redeem the mortgaged property for the full amount of the foreclosure judgment plus interest, costs, and taxes." Id. at 241 (emphases added).

¶ 11. Understandably, Resnant relies heavily on Hobl. Remarkably, in response, M&I does not even mention it. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted argument deemed admitted).

¶ 12. Judicial confirmation is "analogous to the execution of a judgment and simply enforce [s] the parties' rights which have been adjudicated." Shuput v. Lauer, 109 Wis. 2d 164, 173, 325 N.W.2d 321 (1982). Here, Wis. Stat. § 846.13 provides "a 'clear and valid' legislative command," see GMAC Mortgage Corp., 215 Wis. 2d at 480 (quoted source omitted), removing a circuit court's discretion to alter the clear and unambiguous prerequisite of full payment for redemption before the sale. Accordingly, we reverse and remand the matter for further proceedings consistent with this opinion.

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

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

       Wisconsin Stat. § 846.165(2) provides:

        In case the mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be no presumption that such premises sold for their fair value and no sale shall be confirmed and judgment for deficiency rendered, until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs.

       "The 'stripped-down' value of mortgaged property is the present value of the property as opposed to the amount of the lien against the property." Hobl v. Lord, 162 Wis. 2d 226, 229 n.3, 470 N.W.2d 265 (1991).

       Instead, M&I relies on the continuing authority of circuit courts in foreclosure actions. Most pointedly, it invokes Family Savings & Loan Ass'n v. Barkwood Landscaping Co., 93 Wis. 2d 190, 286 N.W.2d 581 (1980), in which the supreme court, quoting Strong v. Catton, 1 Wis. 408 (1853), reiterated that, in certain circumstances, a circuit court has discretion to set aside a sheriffs sale:
      "It must be conceded, that, until the report of the sale is confirmed, the whole matter is subject to the control of the court, and that a purchaser upon a sale upon foreclosure of a mortgage in chancery buys subject to the action of the court in confirming or setting aside the sale .... And not only before, but after confirmation, from the nature and constitution of the court, it has a complete control over the parties to the cause and the subject matter, and may, in a case requiring its interposition, set aside a sale and divest any acquired rights of a purchaser... ."

        Family Sav. & Loan Ass'n, 93 Wis. 2d at 202 (quoting Strong, 1 Wis. at 424) (emphasis added in Family Savings). While solid in isolation, these words dissolve in this case for two reasons.
      First, Family Savings was decided more than a decade before Hobl; the words reiterating the long-settled doctrine of a circuit court's discretion to set aside a sheriffs sale are unremarkable and must be read together with Hobl's clear statement of the statutory limitation on that discretion.
      Second, in words immediately following the quoted passage, the supreme court added," 'in doing which, however, it will take care that no injustice shall be done to any of the parties.'" Family Sav. & Loan Ass'n, 93 Wis. 2d at 202 (quoting Strong, 1 Wis. at 424) (emphasis added in Family Savings). Here, setting aside the sale would do an injustice to Resnant, which, by making the winning bid, became a party to the action. See GMAC Mortgage Corp. v. Gisvold, 215 Wis. 2d 459, 482, 572 N.W.2d 466 (1998) ("Although the purchaser is not necessarily a party appearing in the foreclosure action for purposes of the judgment and sale, '[t]he purchaser at the sale is a party interested in the proceedings to confirm the sale.1") (quoted source omitted).
      M&I contends, however, that although Resnant had become what it calls a "quasi-party" to the action, its rights should not trump those of the original parties to resolve their dispute. They maintain that the rights of creditor and debtor were equitably protected by the circuit court's decision. We are not persuaded.
      In the first place, the equities were, in effect, resolved by the legislature when it enacted Wis. Stat. § 846.13 requiring full payment before sale as a prerequisite to redemption. In the second place, while the apparent equities in the instant case may have been irresistible to the circuit court, the inequities inherent in any deviation from the statutory mandate must not be forgotten. As Resnant argues, "If parties are allowed to redeem properties by ethereal plans filled with contingencies, no one will have any incentive to even bid at a foreclosure sale, thus harming both lenders and debtors." As Resnant also explains, bidders "may very well go through significant expense in preparing a bid (or deciding whether to make a bid)," all of which benefits creditors and debtors generally, and much of which would be deterred if bidders could not do so with confidence that their winning bids would be confirmed.


author: DYKMAN, J.

text:
    William Keen, Lisa Keen, Oliver Himsel, Karen Lamere, Clement Lamere, Floyd Lamere, Bertilla Lamere, and Manfred Engburg, Plaintiffs, Margaret L. Jones, Plaintiff-Appellant, v. Dane County Board of Supervisors, Dane County Zoning and Natural Resources Committee and Payne & Dolan, Inc., Defendants-Respondents.
    Court of Appeals

      No. 03-0734.

      Submitted on briefs October 14, 2003.

      Decided December 23, 2003.

    2004 WI App 26
    (Also reported in 676 N.W.2d 154.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert J. Kay and Robert A. Mich, Jr., of Kay & Andersen, S.C., Madison.
    On behalf of the defendant-respondent, Payne & Dolan, Inc., the cause was submitted on the brief of William F. White and Thomas R Heneghan of Michael Best & Friedrich LLP, Madison.
    On behalf of the defendant-respondent, Dane County Corporation Counsel, the cause was submitted on the brief of David R. Gault, assistant corporation counsel, Madison.
    Before Dykman, Vergeront and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Margaret L. Jones appeals from an order affirming the Dane County Board (board) which upheld the decision of the Dane County Zoning and Natural Resources Committee (ZNR) to grant a conditional-use permit. She asserts that ZNR failed to meet the requirements of Dane County Ordinances (DCO) §§ 10.255(2)(h) and 10.123(3)(a)l and that two ZNR members were impermissibly biased. We reverse and remand with directions for ZNR to consider the factors in § 10.123(3)(a)l and to reconsider § 10.255(2)(h) because of an impermissibly high risk of bias in the prior deliberations.

BACKGROUND

¶ 2. Two residents of Verona applied for a conditional-use permit through their agents, Payne & Dolan, Inc. (P&D) to operate a gravel pit on the their property. ZNR held a lengthy hearing and considered sixty-one conditions before it granted the permit. Minutes from the hearing are the only record of how ZNR reached its decision. Local landowners challenged ZNR's decision and the board and trial court affirmed. Jones, one of the plaintiffs, appeals. Among other things, she alleges that two ZNR members, Lyman Anderson and Carlton Hamre, impermissibly favored P&D. The bias allegations derive from the fact that Anderson had leased his property in Oregon, Wisconsin, to P&D to operate a gravel pit. And Hamre had allegedly endorsed the company by co-signing a letter that vouched for the quality of P&D's work. Hamre signed this letter as Town of Vienna chair in November 2001. P&D included the letter in its application to ZNR for a conditional-use permit. After ZNR issued the permit, Hamre made the following comment to a newspaper:

There are some operators I wouldn't support, but I've worked with Payne & Dolan before ....
... I'm sorry for the people who will live close to it, but I can't change my mind on voting for the pit.

Although Hamre has since retired, Anderson currently serves as chair of ZNR.

STANDARD OF REVIEW

¶ 3. We review the board's affirmance of ZNR's decision using the same standard as the trial court. Delta Biological Res., Inc. v. BOZA, 160 Wis. 2d 905, 910, 467 N.W.2d 164 (Ct. App. 1991). While we are not bound by the board's conclusions of law, we will sustain them if reasonable. Id. We hesitate to interfere with administrative determinations and presume they are correct and valid. Therefore, we limit our review to:

(1) Whether the Board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.

Id. (citation omitted).

DISCUSSION

¶ 4. Jones does not seek review of the merits of ZNR's determination. She challenges only whether ZNR (1) considered the requisite agriculture district factors in DCO § 10.123(3)(a)l; (2) made the findings DCO § 10.255(2)(h) requires; and (3) allowed biased members to deliberate and vote. She claims that these failings render ZNR's determination arbitrary, oppressive and unreasonable and contrary to law.

a. Agriculture District Considerations

¶ 5. The parties do not dispute that Verona has elected to be an exclusive agriculture district pursuant to DCO § 10.123. Section I0.l23(3)(a)l requires ZNR to consider ten factors before issuing a conditional-use permit in an agriculture district. Nothing in the hearing minutes refers to these ten factors. Jones asserts that this shows ZNR did not act according to law. We agree. The sparse record contains no mention of the special concerns for an agriculture district. We have no basis to conclude that ZNR considered those factors.

¶ 6. P&D urges us to presume that the agency considered all the factors the Dane County Ordinances require it to consider. It claims the law presumes the board's decision is valid and correct. "A presumption is a rule of law, statutory or judicial, by which a finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted." Delta Biological Res., Inc., 160 Wis. 2d at 912 (citation omitted). We decline to expand the presumption of validity doctrine such that we presume a basic fact. Affording boards such deference would render judicial review meaningless. We conclude that a record devoid of any reference to the agriculture district factors does not satisfy the requirements of DCO § 10.123(3)(a)l.

¶ 7. P&D also argues that Jones has the burden of demonstrating that ZNR's decision was contrary to law or arbitrary, oppressive, or unreasonable. It claims that the only proof Jones has offered is testimony from an unidentified speaker at the board hearing that stated that ZNR did not consider the agriculture district factors. P&D argues that this testimony is unreliable and not sufficient to overcome the presumption of validity. We do not need to address the reliability of this testimony because the record, or lack thereof, resolves the question of whether ZNR considered the factors in DCO § 10.123(3)(a)l.

¶ 8. P&D contends that ZNR complied with DCO § 10.123(3)(a) 1 because it held a lengthy hearing and considered sixty-one conditions for the conditional use. P&D offers no legal authority to support its position that ZNR may consider use conditions rather than the ten factors in § 10.123(3)(a)l. We reject this argument.

¶ 9. Similarly, the board contends that ZNR considered the factors in DCO § 10.123(3)(a)l when it found that the conditional-use permit complied with DCO § 10.255(2)(h). Section 10.255(2)(h) requires ZNR to find that the conditional use "conform[s] to all applicable regulations of the district in which it is located." The board argues that such a finding encompasses the considerations in § 10.123(3)(a)l. This reasoning, however, eviscerates the special consideration that Verona opted for when it became an agriculture district. If ZNR necessarily considers § 10.123(3)(a) 1 when it makes the requisite findings for § 10.255(2)(h), then electing to be an agriculture district becomes meaningless. This result contradicts the plain purpose of distinguishing agriculture from other types of districts. We are not persuaded.

¶ 10. Both P&D and the board suggest that if we conclude that ZNR did not consider the requisite factors in DCO § 10.123(3)(a)l, we will be requiring increased formality in ZNR's deliberations. We disagree. We reverse only because ZNR failed to consider certain factors, not because its considerations lacked formality.

b. Findings of Fact

¶ 11. Jones also asserts that ZNR only approved the considerations in DCO § 10.255(2)(h) and did not actually make findings as required by the ordinance. Both P&D and the board argue that although ZNR used the term "approve" when it addressed § 10.255(2)(h), its determinations constituted findings. We agree. It is immaterial that ZNR used the word "approve" rather than stating that it was making a finding. ZNR specifically addressed and voted on all the concerns in § 10.255(2)(h). Those deliberations constitute findings.

c. Bias

¶ 12. Jones claims that two members of ZNR were impermissibly biased. Specifically, she contends Anderson and Hamre were not impartial decisionmakers because of their prior business relationships with P&D. She argues that Hamre expressed a "personal and close feeling about" P&D's work in his letter that supported P&D's application. She also contends that his comments to the press reveal prejudgment of the issues. Accordingly, she claims that all of ZNR's deliberations were fatally flawed because of bias.

¶ 13. Both P&D and the board argue that Jones' evidence does not overcome the presumption of honesty and integrity we afford ZNR. They claim that Hamre's letter simply shows that he was familiar with the quality of P&D's work, which is the kind of experience and knowledge zoning committees often utilize in deliberations. The board also contends that merely forming an opinion prior to a hearing does not constitute prejudgment under State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 690, 242 N.W.2d 689 (1976).

¶ 14. To act in accordance with law, a decision-maker must comport with the "common law concepts of due process and fair play." Marris v. City of Cedarburg, 176 Wis. 2d 14, 24, 498 N.W.2d 842 (1993). A decision-maker violates due process and fair play by harboring bias, or an impermissibly high risk of bias, or prejudging the facts or the application of the law. Id. at 25 (citation omitted). The Wisconsin Supreme Court applied this rule in Marris, where a board member made several prejudicial statements about a permit applicant, including that he wanted "to get [the applicant] on the Leona Helmsley rule." Id. at 28-30. Those remarks overcame the presumption of honesty and integrity that would ordinarily lie. Id. at 30. Accordingly, the court vacated the board's decision because the bias violated due process.

¶ 15. Hamre became an advocate for P&D when P&D submitted his letter as part of its permit application. He cannot be both an advocate and an impartial decisionmaker on this issue. In the letter, Hamre proclaimed P&D "has always stood out above the rest in their efforts and success in being a good corporate citizen and caretaker of the land." Hamre's "close and personal view" promotes P&D's good track record and recommends them as a good business to operate a gravel pit in the community. This advocacy surpasses merely forming an opinion about a subject and overcomes the presumption of integrity and honesty. We conclude the letter evidences an impermissibly high risk of bias.

¶ 16. Because the letter evidences an impermissi-bly high risk of bias, we do not reach the board's claims that the newspaper article Jones references was not part of the record before this appeal or P&D's argument that Hamre's comments after the decision are irrelevant.

¶ 17. Jones also asserts that Anderson was imper-missibly biased in favor of P&D. Although Hamre's impermissibly high risk of bias alone warrants reversal, we will also address Jones' allegations against Anderson because her brief informs us that Anderson still serves as chairman of the ZNR. Therefore, we need to clarify whether Anderson may deliberate and vote in the rehearing.

¶ 18. The parties do not dispute that Anderson had leased his property to P&D for the operation of a gravel pit. Jones claims that Anderson benefited from "financially assisting his long-term business partner" and "avoiding the appearance of hypocrisy had he denied a gravel pit operation while maintaining one on his own property."

¶ 19. Both P&D and the board maintain that Anderson's lease is unrelated to the conditional-use permit at issue in this case. They also contend that Anderson has an economic interest in not allowing P&D to operate a gravel pit in Verona because it would compete with his own. They argue that Anderson's lease with P&D does not rebut the presumption that Anderson acted with honesty and integrity.

¶ 20. We conclude that Anderson's lease with P&D does not constitute impermissible bias. Unlike the board member in Marris, Anderson's lease with P&D does not evidence bias. The lease was an independent, prior business transaction unrelated to the property at issue. Marris does not require board members to have no prior dealings with applicants; rather, the court recognized the localized nature of county boards and that members "can be expected to have opinions about local zoning issues." Id. at 26. Similarly, members may have conducted business with applicants that appear before them, as in Anderson's case. We conclude the property lease alone does not suffice to meet the standard of Marris.

CONCLUSION

¶ 21. We conclude that ZNR complied with DCO § 10.255(2)(h) by making the requisite findings, despite using the term "approve." However, because Hamre's letter evidences an impermissibly high risk of bias and he participated in making those findings, we reverse with directions for ZNR to reconsider § 10.255(2)(h) without Hamre. We do not preclude Anderson's participation. Likewise, we direct ZNR to consider the factors DCO § 10.123(3)(a)l requires before issuing a conditional-use permit for the operation of a gravel pit.

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

       Dane County Ordinance § 10.123(3)(a)l provides in pertinent part:
      In passing applications for conditional use permits the committee shall consider the following relevant factors:
      a. The statement of purposes of the zoning ordinance and the A-l District.
      b. The potential for conflict with agricultural use.

        c. The need of the proposed use for a location in an agricultural area.
      d. The availability of alternative locations.
      e. Compatibility with existing or permitted use on adjacent lands.
      f. The productivity of the lands involved.
      g. The location of the proposed use so as to reduce to a minimum the amount of productive agricultural land converted.
      h. The need for public services created by the proposed use.
      i. The availability of adequate public services and the ability of affected local units of government to provide them without an unreasonable burden.
      j. The effect of the proposed use on water or air pollution, sod erosion and rare or irreplaceable natural resources.

       An unidentified member of the ZNR Committee stated the following at a subsequent board meeting:
      They never once addressed the point that the Zoning and Natural Resources Committee, of which I am a member, did not address Section 10.123(3)(A) of the Dane County Code of Ordinances, and within there there is ten different factors ....
      ... We have got to follow our own ordinance and consider those factors. We have got to address those. We can even discuss them. We never discussed them in ZNR. None of those standards or factors were discussed.